THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


NAVAL  DIGEST 

CONTAINING 

DIGESTS  OF  SELECTED  DECISIONS 

OF  THE  SECRETARY  OF  THE  NAVY  AND 

OPINIONS  OF  THE  JUDGE  ADVOCATE 

GENERAL  OF  THE  NAVY 

1916 


PREPARED  BY 

CAPTAIN  EDWIN  N.  McCLELLAN 

United  States  Marine  Corps 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1916 


/B 
360 

A5 


9386-17, 
C. 

DEPARTMENT  OF  THE  NAVY, 
OFFICE  OF  THE  JUDGE  ADVOCATE  GENERAL, 

Washington,  November  29,  1916. 
From:  Judge  Advocate  General. 
To:       Secretary  of  the  Navy. 
Subject:  "Naval  Digest,  1916." 
Inclosure:  (A)  Copy  of  Naval  Digest,  1916. 

1.  I  transmit  herewith  for  your  formal  approval  a  copy  of  "Naval  Digest, 
1916,"  containing  digests  of  selected  decisions  of  the  Secretary  of  the  Navy 
and  opinions  of  the  Judge  Advocate  General  of  the  Navy,  prepared  under 
my  direction  by  Captain  Edwin  N.  McClellan,  United  States  Marine  Corps, 
and  authorized  to  be  published  by  your  authority. 
Approved:  RIDLEY  MCLEAN. 

JOSEPHUS  DANIELS, 

Secretary  of  the  Navy. 


979187 


Judge  Advocate  General  of  the  Navy. 


Name. 

From  — 

To— 

Col.  Wm.  B.  Remey,  U.  S.  M.  0.' 

June  8  18SO 

June  4  1892 

Capt.  Samuel  C.  Lemly,  U.  S.  N.2 

June  4  1892 

June  3  1904 

Capt.  Samuel  W.  B.  Diehl,  U.  S.  N 

June  4  1904 

Nov.12  1907 

Capt.  Edward  H.  Campbell,  U.  S.  N  
Capt.  Robert  L.  Russell,  U.  S.  N 

Jan.  14,  1908 
Nov.  3  1909 

Nov.  3,  1909 
Nov.  5  1913 

Capt.  Ridley  McLean,  U.  S.  N. 

Nov.  5  1913 

Dec.   2  1916 

Capt.  William  C.  Watts,  U.  8.  N      . 

Jan.    6  1917 

1  Served  as  Acting  Judge  Advocate  General  before  the  Office  of  the  Judge  Advocate  General 
was  established  by  the  act  of  June  8, 1880  (21  Stat.,  164). 

2  Retired  June  17, 1902,  but  continued  as  Judge  Advocate  General. 


EXPLANATORY  NOTE. 


The  Naval  Digest  is  a  reference  book  containing  digests  of  decisions  and 
opinions,  and  information  in  connection  with  them.  Part  of  this  informa- 
tion has  been  published  from  time  to  time  in  Court-Martial  Orders,  General 
Orders,  Index-Digests,  Annual  Reports,  etc.,  while  a  great  deal  of  it  is 
published  herein  for  the  first  time. 

The  material  is  classified  and  arranged  alphabetically  under  convenient 
reference  headings,  making  it  easy  to  consult  and  to  locate  readily  any 
desired  information  to  an  extent  that  was  never  before  possible.  Small 
type  has  purposely  been  used  in  order  that  all  the  information  contained 
in  the  digest  might  be  published  in  a  book  of  a  convenient  size.  It  is  not 
a  textbook  and  does  not  in  any  sense  supersede  the  Navy  Regulations, 
Forms  of  Procedure,  or  any  other  official  publication. 

Numerous  citations  of  department  file  numbers,  decisions  of  civil  courts, 
decisions  of  the  Comptroller  of  the  Treasury,  opinions  of  the  Attorney 
•General,  etc.,  are  published.  While  these  may  be  of  assistance  to  the 
service  at  large,  they  are  published  primarily  for  the  future  convenience 
of  the  department  itself,  which  is  thus  afforded  a  reference  to  the  authori- 
ties for  use  in  cases  involving  similar  points  without  having  to  go  over 
ground  which  has  been  fully  covered.  In  many  cases  subjects  consist 
merely  of  references  to  file  numbers  and  other  citations.  These  are  pub- 
lished for  the  information  of  the  department. 

No  added  weight  is  given  to  any  information  because  it  'is  published 
in  this  volume.  As  an  illustration,  the  information  published  in  Court- 
Martial  Orders  under  the  heading  of  "Bulletin  "  has  the  same  weight  after 
being  published  in  this  Digest  as  it  had  originally.  Since  matter  herein 
published  might  be  overruled  or  amended  subsequent  to  the  publication 
of  the  Digest,  great  care  should  be  exercised  to  ascertain  if  such  has  occurred 
before  assigning  weight  to  such  matter.  With  reference  to  the  relative 
weight  of  opinions  and  decisions  reference  should  be  made  to  "JUDGE 
ADVOCATE  GENERAL,  30." 

The  Navy  Regulations,  Forms  of  Procedure,  and  Court-Martial  Orders 
issued  subsequent  to  1915  should  always  be  consulted  and  followed  in  pref- 
erence to  the  Naval  Digest,  for  they  contain  the  latest  authoritative  regu- 
lations, decisions,  opinions,  and  information.  This  is  particularly  so  with 
reference  to  matters  of  form  for  naval  courts-martial  procedure  and  the 
correct  forma  and  phraseology  for  charges  and  specifications. 

Particular  attention  is  directed  to  the  heading  "WORDS  AND  PHRASES," 
under  which  heading  will  be  found  not  only  many  definitions  of  Latin 
words  and  phrases,  legal  words,  tsrms,  and  expressions,  but  other  informa- 
tion, all  alphabetically  arranged. 

The  annual  Index-Digest  of  Court-Martial  Ordersnvill  hereafter  be  in  the 
nature  and  form  of  a  Supplement  to  the  Naval  Digest,  1916,  and  thus  make 
a  revision  of  it  convenient  and  practicable  when  it  is  desired  to  issue  a 
new  edition. 

3 


4  EXPLANATORY   NOTE. 

Many  abbreviations  of  citations  have  of  necessity  been  used  but  only 
the  following  will  be  explained:  "R-"  means  "Navy  Regulations,  1913, 
unless  some  other  year  is  specifically  mentioned  or  clearly  apparent;  thus 
"R-817  (7)"  means  "Navy  Regulations,  1913,  R-817  (7).'y  rtFile"  means 
the  files  of  the  Secretary  of  the  Navy  (which  includes  the  Office  of  the 
Judge  Advocate  General),  unless  some  other  department,  bureau,  or  office 
is  mentioned;  thus  "File  26251-12159,  Sec.  Navy,  Dec.  22,  1916,"  means 
a  letter  signed  by  the  Secretary  of  the  Navy,  dated  December  22,  1916, 
and  in  general  refers  to  a  decision,  while  "File  26251-12159,  J.  A.  G., 
Dec.  22,  1916,"  means  a  letter  signed  by  the  Judge  Advocate  General, 
dated  December  22,  1916,  and  in  general  refers  to  an  opinion.  In  addition 
to  the  above,  "J.  A.  G."  means  "Brief  and  Opinion  Book  of  the  Judge 
Advocate  General,"  containing  letter-press  copies  of  briefs  and  opinions; 
thus  "14  J.  A.  G.  23"  would  mean  Volume  14  of  the  Brief  and  Opinion 
Books  of  the  Judge  Advocate  General ,  page  23 .  "  C .  M .  O . "  means  ' '  Court- 
Martial  Order."  At  one  time  such  orders  were  designated  "General 
Court-Martial  Orders,"  but  as  a  matter  of  convenience  they  are  all  cited 
as  "C.  M.  O."  "G.  C.  M.  Rec."  means  "General  court-martial  record." 
Upon  being  received  jn  the  department  and  after  final  action  is  taken 
thereon  each  general  court-martial  record  receives  a  number  and  is  filed 
in  the  Office  of  the  Judge  Advocate  General.  This  number  is  in  addition 
to  the  file  number  which  is  placed  upon  the  charges  and  specifications 
and  all  correspondence  relating  to  the  trial;  thus  "G.  C.  M.  Rec.  29422, 
p.  2 "  means  "General  Court-Martial  Record  No.  29422,  page  2."  "G.  O." 
means  General  Order  of  the  Navy  Department.  Decisions  of  the  Supreme 
Court  of  the  United  States  are  published  officially  in  United  States  Reports, 
although  the  earlier  volumes  are  known  and  generally  cited  by  the  names 
of  the  official  reporter,  Dallas,  Cranch,  Wheaton,  Peters,  Howard,  Black, 
Wallace,  and  Otto;  thus,  "2  Dall.  23,"  "2  Cr.  25"  or  "2  Cra.  25"  or  "2 
Cranch  25,"  "1  Wheat.  2,"  "2  Pet.  32,"  "1  How.  45,"  "2  Black  342,""! 
Wall.  46,"  and  "1  Otto,  4."  These  may  also  be  cited  as  are  the  official 
publications  of  later  decisions,  as,  "232  U.  S.  546,"  which  would  mean 
volume  232  of  the  decisions  of  the  United  States  Supreme  Court,  page 
546.  Decisions  of  Inferior  Federal  Courts  are  found  in  Federal  Cases 
(Circuit  and  District  Courts)  cited  as  "Fed.  Cas."  and  extending  from 
1789  to  1880,  and  the  Federal  Reporter,  cited  as  "Fed.  Rep."  or  "Fed." 
and  extending  from  1880  to  date.  These  reports  dp  not  include  the  de- 
cisions of  the  Court  of  Claims  (a  Federal  court),  which  are  published  offi- 
cially in  the  Court  of  Claims  Reports  cited  as  "Ct.  Cls."  or  "C.  C."  or 
"C.  Cls."  "Op.  Atty.  Gen.",  "Op.  A.  G.",  and  "A.  G."  means  "Opin- 
ions of  Attorneys  General";  thus,  "25  Op.  Atty.  Gen.  2  "  or  "25  Op.  A.  G. 
2"  or  "25  A.  G.  2"  means  volume  25  of  the  Opionions  of  Attorneys  Gen- 
eral, page  2.  "Comp.  Dec."  means  "Decisions  of  the  Comptroller  of  the 
Treasury";  thus,  "19 'Comp.  Dec.  5"  means  volume  19  of  the  Decisions 
of  the  Comptroller  of  the  Treasury,  page  5.  "R.  S."  means  Revised 
Statutes  of  the  United  States.  "Stat.  means  the  United  States  Statutes 
at  Large;  thus,  "35  Stat.  621 "  means  volume  35  of  the  United  States  Statutes 
at  Large,  page  621. 


NAVAL  DIGEST. 


ABBREVIATION. 

1.  Middle  names  In  specifications — Christian  names  in  specifications  other  than  the  first 

may  be  indicated  by  initial  letters.  C.  M.  O.  150,  1897,  3;  36,  1914.  6,  7;  4, 1916,  5. 
See  also  C.  M.  O.  1,  1914,  4;  5, 1914,  7;  40, 1914;  39,  1915.  See  also  C.  M.  O.  23,  1911, 2, 
where  first  name  was  indicated  by  initial  in  court-martial  order. 

2.  Sentences— Improper  abbreviations— "U.  S."  for  "United  States."    G.  C.  M.  Rec. 

21869,  21852,  21847,  21846,  21845,  22936,  23760.  See  also  File  26504-76,  Sec.  Navy, 
ApriI5, 1910. 

ABETTING.    See  AIDING  AND  ABETTING. 

ABSENCE. 

1.  Accused  during  trial.    See  ACCUSED,  1-9. 

2.  Arrest  during.    See  ABSENCE  FROM  STATION  AND  DUTY  AFTEK  LEAVE  HAD  EX- 

PIRED, 3. 

3.  Counsel  during  trial.    See  COUNSEL,  1. 

4.  Death,  presumption  of— Continued  absence.    See  COMMON  LAW,  7;  LINE  OF  DUTY 

AND  MISCONDUCT  CONSTRUED,  18-21. 

5.  Leave  of  absence.    See  LEAVE  OF  ABSENCE. 

6.  Member  from  meeting  of  court.    See  MEMBERS  OF  COURTS-MARTIAL,  1-6. 

7.  Unauthorized— General  court-martial  charge.    See  ABSENCE   FROM    STATION  AND 

DUTY  AFTER  LEAVE  HAD  EXPIRED;  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 
LEAVE;  DESERTION. 

8.  Same— Diseases  contracted  during.    See  ENLISTMENTS,  11;  GENERAL  ORDER  No.  100, 

JUNE  15, 1914;  MARINE  CORPS,  30. 

9.  Same — Voluntary  drunkenness  is  no  defense  to  unauthorized  absence.    See  ABSENCE 

FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  9, 10;  DRUNKENNESS,  1. 

10.  Same — Duration  or  period  of  the  unauthorized  absence  should  be  alleged  in  specifica- 

tions—The length  of  an  unauthorized  absence  should  be  set  forth  in  the  specification 
of  a  naval  court-martial,  as  such  allegation  goes  to  show  whether  or  not  the  offense 
is  of  an  aggravated  nature.  File  26287-3016,  J.  A.  G..  June  25,  1915;  C.  M.  O.  22. 
1915,  4.  See  also  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29;  CHARGES 
AND  SPECIFICATIONS,  92;  DESERTION,  99. 

11.  Same — Department  held  that  a  specification  of  a  naval  courtanartial,  which  merely 

alleged  an  unauthorized  absence  at  a  certain  time,  but  not  the  period  or  duration  of 
such  absence,  is  sufficient  in  law  and  alleges  an  offense.  (See  C.  M.  O.  89, 1890;  File 
26287-1125:  1,  J.  A.  G.,  Mar.  19,  1912;  G.  C.  M.  Rec.  No.  30485.  p.  754;  Dynes  v. 
Hoover,  20  How.,  65.)  File  26287-3016,  J.  A.  G.,  June  25, 1915;  C.  M.  O.  22, 1915,  4. 
But  see  ABSENCE,  10.  See  also  CHARGES  AND  SPECDJICATIONS,  92. 

It  has  been  the  custom  and  practice  to  allege  the  period  of  absence.    See  G.  C.  M. 
Rec.  383  (1821). 

12.  Same — Duration  or  period  of— A  man  who  was  injured  while  absent  without  leave, 

was  considered  as  so  absent  until  the  time  that  he  reported,  or  some  one  reported 
in  his  behalf,  as  to  his  whereabouts.  File  3901-04,  J.  A.  G.,  May  3, 1904. 

13.  Same — "Absence  from  station  and  duty  without  leave"  and  "Absence  from  station 

and  duty  after  leave  had  expired"  is  properly  chargeable  as  such  under  A.  G.  N. 
8,  paragraph  19.  C.  M.  O.  5,  1914,  7;  49,  1915,  19. 

14.  United  States,  absence  from— In  as  much  as  the  Territory  of  Hawaii  is  under  the 

j  urisdietion  of  the  United  States  it  was  held  that  residence  in  Honolulu  is  not  absence 
from  the  United  States  within  the  meaning  of  A.  G.  N.,  61  and  62.  File  6091,  Nov. 
5, 1906. 

15.  Without  pay — Can  not  be  granted  officers.    See  LEAVE  OF  ABSENCE,  11, 12. 

ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED. 

1.  Aggravating  circumstances — Combined    with- — General   courts-martial.    See   AB- 

SENCE FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  12. 

2.  Same— Combined  with — Summary  courts-martial.    C.  M.  O.  16,  1916,  6-7.    See  also 

ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  6. 


6  ABSENCE  AFTER  LEAVE  HAD  EXPIRED. 

3.  Arrest  and  acquittal  by  civil  authorities— A  defense  to— Where  an  accused  is  charged 

with  "Absence  from  station  and  duty  without  leave"  or  "Desertion"  and  upon  his 
trial  by  naval  court-martial  for  the  offense  it  is  proved  that  his  unauthorized  absence 
was  solely  due  to  his  arrest  and  detention  by  the  civil  authorities,  which  detention 
was  followed  by  an  acquittal  in  the  civil  court,  the  accused  should  be  acquitted  in  the 
court-martial  proceedings.  If,  however,  the  unauthorized  absence  was  caused  by  the 
misconduct  of  the  accused,  as  evidenced  by  his  conviction  in  the  civil  courts,  such 
facts  do  not  constitute  a  legal  defense  to  the  unauthorized  absence.  C.  M.  O.  5, 
1912,3-14;  14,  1914,  4-6.  See  also  File  26287-1008;  26287-1012;  3811-04;  Op.  J.  A.  G., 
Jan.  18, 1912;  INTENT,  2. 

4.  Same— Where  a  commanding  officer,  arrested  by  the  civil  authorities,  while  absent 

without  leave  fails  to  make  any  report  whatever  of  his  whereabouts,  either  to  his 
immediate  superior  or  to  the  Secretary  of  the  Navy,  he  must  be  held  responsible 
for  his  resulting  unauthorized  absence,  notwithstanding  the  fact  that  he  may  be 
acquitted  by  the  civil  courts  when  tried.  C.  M.  O.  19. 1915,  9. 

5.  Arrest  and  conviction  by  civil  authorities— Not  a  defense  to.    See  ABSENCE  FROM 

STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  3. 

6.  Charge — Proper  charge  is  "Absence  from  station  and  duty  after  leave  had  expired," 

and  not  "Absence  overleave."    C.  M.  O.  53,  1914,  6-6. 

7.  Clearly  proved  by  the  evidence — Accused  should  be  found  guilty.    C.  M.  O.  49,  1915,  8. 

8.  Conduct  to  the  prejudice  of  good  order  and  discipline— Simple  offense  of  "Ab- 

sence from  station  and  duty  after  leave  had  expired"  not  properly  chargeable  under. 
See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  12. 

9.  Drunkenness,  voluntary — In  a  case  where  an  accused,  charged  with  "Desertion," 

was  found  "guilty  in  a  less  degree  than  charged,  guilty  of  absence  without  leave, but 
without  criminality  "  and  acquitted,  the  department  stated  that  it  can  not  admit  that 
a  man  absent  from  his  station  and  duty  for  nearly  seven  months,  whose  only  excuse 
was  his  own  drunkenness  at  the  time  of  leaving,  was  without  blame  and  should  be 
acquitted.  The  court  erred  in  so  finding,  for  no  claim  was  made  that  the  accused  had 
been  drugged,  or  forced  into  sucn  drunken  condition.  Accordingly  the  proceedings, 
findings,  and  acquittal  were  disapproved,  and  the  accused  being  an  undesirable 
person  for  the  naval  service,  discharged  as  undesirable,  as  an  independent  pro- 
ceeding. C.  M.  0. 11,  1905,  2.  See  also  DRUNKENNESS,  1. 

10.  Same— Voluntary  drunkenness  is  never  an  excuse  for  an  offense  such  as  unauthorized 

absence,  but  in  many  cases  is  an  aggravation.  (See  G.  O.  110,  p.  7.)  C.  M.O.25, 
1915,  2. 

11.  Duration  of — Should  be  alleged  in  specification,  etc.    See  ABSENCE,  10, 11;  ABSENCE 

FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  39;  CHARGES  AND  SPECIFICATIONS,  92. 

12.  Enlisted  men — Comments  in  Court-Martial  Orders  regarding  unauthorized  absence  of 

enlisted  men.    C.  M.  O.  23,  1912.  4;  25,  19U,  4;  49,  1915,  8. 

13.  Intent— Not  necessary  to  allege  or  prove  specific  intent.    C.  M.  O.  5, 1912,  9.    See  also 

ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  20;  INTENT,  2. 

14.  Leave  of  absence — Burden  of  ascertaining  time  of  expiration  of  leave  of  absence  or 

lioerty  is  on  individual.    See  LEAVE  OF  ABSENCE,  3. 

15.  Officers— Charged  with.   C.M.  O.  31, 1887;  48,1888;  56, 1889;  61i,  1890;  41, 1891;  20, 1894; 

73.  1896;  136,  1901;  230,  1902;  203,  1902;  1,  1908;  38,  1909;  51,  1910;  29,  1912;  5,  1913; 
13,  1914;  39,  1914;  47,  1914;  28,  1915;  40,  1883;  39,  1915;  4,  1913;  37,  1913;  39,  1915;  14, 
1916;  39,  1916;  40, 1916;  42,  1916;  4,  1917;  8,  1917. 

10.  Overstaying  leave — Enlisted  men  tried  by  general  court-martial— Should  have  been 
charged  as  "Absence  from  station  and  duty  after  leave  had  expired."  C.  M.  O.  13, 
1881. 

17.  Paymaster's  clerk— Charged  with.    C.  M.  O.  38, 1913. 

18.  Prima  facie  case  of — Where  an  accused  was  arrested  by  the  civil  authorities  on  the 

same  day  that  his  liberty  expired  and  at  a  place  which  was  approximately  400  miles 
from  his  station  and  duty,  a  distance  which  would  require  at  least  seven  hours  to 
cover,  he  is  prima  facie  guilty  of  absence  from  station  and  duty  after  leave  had  ex- 
pired, at  least,  unless  the  accused  can  satisfactorily  show,  in  rebuttal,  that  the  situa- 
tion was  not  due  in  any  manner  to  his  own  misconduct.  C.  M.  O.  14, 1914,  4.  See 
also  JUDICIAL  NOTICE,  1. 

19.  Warrant  officers— Charged  with.    C.  M.  O.  35, 1912;  3, 1913;  23, 1914;  11, 1915;  10, 1879; 

52, 1880;  49, 1888;  60, 1888;  189,  1901;  236, 1902;  15,  1903;  89,  1907;  G.  C.  M.  Rec.  11218. 

20.  Warrant  officers  (commissioned)— Charged   with.    C.  M.  O.  18,  1911;   37,  1914; 

23, 1915;  25, 1915;  28, 1915;  G.  C.  M.  Rec.  19776;  C.  M.  O.  14, 1917. 


ABSENCE    WITHOUT    LEAVE.  7 

ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE. 

1.  "Absence  without   leave — While   at   the  present   time  this  offense  is  charged  as 

"  Absence  from  station  and  duty  without  leave."  it  was  charged  as  "Absence 
without  leave"  in  the  following  instances:  C.  M.  O.  7,  1881;  12,  1882;  15,  1882; 
43,  1882;  48,  1882;  56,  1882;  23,  1883;  36,  1883;  39,  1883;  25,  1885;  19,  1889;  63,  1889; 
42, 1891. 

2.  Same — Where  an  accused,  charged  with  desertion,  is  found  guilty  in  a  less  degree  than 

charged,  he  should  be  found  guilty  of  "Absence  from  station  and  duty  without  leave  " 
•  or"  Absence  from  station  and  duty  after  leave  had  expired, "and  not"  Absence  with- 
out leave  "or  "Absence  overleave."    C.  M.  O.53, 1914,5-6.    See  also  FINDINGS,  2. 

3.  Acquittal  of— Approvalof  acquittal  of  unauthorized  absence  entitles  accused  to  pay 

during  such  absence.    See  PAY,  1.    See  also >  CONFINEMENT,  7;  DESERTION  9. 

4.  Same — Acquittal  of  "  Desertion  "  is  also  acquittal  of  "Absence  from  station  and  duty 

without  leave."   See  DESERTION,  9. 

5.  Aggravating  circumstances— Combined  with — General  courts-martial.    See  ABSENCE 

FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  12. 

6.  Same — Combined  with— Summary  courts-martial— "  Absence  from  station  and  duty 

without  leave"  combined  with  aggravating  circumstances,  being  made  up  of  two 
separate  offenses,  should  be  preferred  in  two  specifications  in  a  trial  by  summary 
court-martial.  C.  M.  O.  16,  1916,  6-7. 

7.  Arrest  and  acquittal  by  civil  authorities— As  a  defense  to  unauthorized  absence. 

See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  3,  4. 

8.  Arrest  and  conviction  by  civil  authorities— Not  a  defense  to  unauthorized  absence. 

See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  3. 

9.  "Attempting  to  absent  himself  from  his  station  and  duty  without  leave" — 

Enlisted  man  charged  with.     C.  M.  0. 15, 1889. 

10.  Charge — Proper  charge  is  "Absence  from  station  and  duty  without  leave,"  not 

"Absence  without  leave."    C.  M.  O.  53,  1914,  5-6. 

11.  Commanding  officer— Charged  with.    C.  M.  O.  34, 1889;  19, 1915. 

12.  "Conduct  to  the  prejudice  of  good  order  and  discipline" — It  is  proper  to  charge 

an  accused  with  both  "  Absence  from  station  and  duty  after  leave  nad  expired  "  or 
"Absence  from  station  and  duty  without  leave  "  and  "Conduct  to  the  prejudice  of 
good  order  and  discipline"  where  the  unauthorized  absence  was  with  the  manifest 
intention  of  evading  some  particular  duty  (as  coaling  ship  or  a  landing  party),  or 
service  on  some  particular  snip  (as  by  missing  ship).  C.  M.  O.  6, 1908, 4-5;  5, 1914,  7; 
25,1914,5;  3,1916,7-8.  See  also  C.  M.  O.  6, 1915,  2;  12,1915,2;  16,1915,2;  20,1915,1; 
27,  1915,  2;  42, 1915,  2. 

13.  "Desertion" — Accused  should  not  be  charged  with  both  "Desertion"  and  "Absence 

from  station  and  duty  after  leave  had  expired"  or  "Absence  from  station  and  duty 
without  leave"  for  the  same  unauthorized  absence.  C.  M.  O.  49,  1910, 15-16;  23, 
1910, 6;  5(  1914,  7.  See  also  DESERTION,  5. 

14. -Same — Enlisted  men  acquitted  by  naval  court-martial  of  the  charge  of  "Desertion" 
are  thereby  acquitted  by  implication  of  the  lesser  offense  of  "Absence  from  station 
and  duty  after  leave  had  expired"  or  "Absence  from  station  and  duty  without 
leave."  C.  M.  O.  14, 1914,  4-5. 

15.  Drunkenness,  voluntary — Not  an  excuse  for  unauthorized  absence.    See  ABSENCE 

FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  9, 10;  DRUNKENNESS,  l. 

16.  Duration  of— Should  be  alleged  in  specifications,  etc.    See  ABSENCE,  10, 11;  ABSENCE 

FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

17.  Extending  over  period  of  enlistment.    See  ENLISTMENTS,  9-11. 

18.  Finding  of  "Absence  from  station  and  duty  without  leave"  on  a  charge  of 

"Desertion"  is  an  acquittal  of  "Desertion" — Every  desertion  includes  an 
unauthorized  absence  and  upon  a  trial  for  desertion  the  accused  is  tried  for  this 
unauthorized  absence  involved  in  the  offense  of  desertion  charged.  If  convicted 
of  the  lesser  offense,  the  accused  is  acquitted,  in  law,  of  the  greater  offense  of  desertion. 
C.  M.  O.  17, 1910,  8-10.  See  also  DESERTION,  6;  13  Op.  Atty.  Gen.,  4CO. 

19.  Gist — Is  the  unauthorized  absence.    See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 

LEAVE,  29. 

20.  Intent— Upon  a  charge  like  that  of  "Absence  from  station  and  duty  without  leave"  it 

is  not  necessary  to  allege  or  prove  any  specific  intent;  but  this  does  not  apply  to 
"Desertion,"  in  which  a  specific  intent  permanently  to  abandon  the  naval  service, 
or  at  least  the  pending  contract  of  enlistment  is  impliedly  alleged  and  must  be  proved. 
C.  M.  0. 10,  1911,  5-6;  5,  1912,  9.  See  also  C.  M.  O.  10,  1911,  6;  File  26251-3252; 
26251-4200;  INTENT,  1,  2. 


8  ABSENCE    WITHOUT    LEAVE. 

21.  Marine  Corps  enlistment.    See  MARINE  ENLISTMENTS,  30:  CORPS,  11. 

22.  Officers— Charged  with.    C.  M.  O.  3,  1882;  23,  1882;  35,  1883;  34,  1884;  5,  1885;  30, 1885; 

58,  1889;  30,  1892;  42,  18J4;  39,  1895;  104,  18J6;  5J,  1898;  132,  1897;  86, 1904;  1,  1905; 
53,  1905;  108,  1905;  17,  133d;  51,  1907;  2,  1939;  22,  1933;  50,  1910;  13,  1910;  23,  1910, 
7;  16,  1911;  28,  1911;  19,  1915;  G.  C.  M.  Bee.  6142;  6737;  7107;  7217;  0760;  6956; 
11580.  Midshipmen  cases  were  as  follows:  C.  M.  O.  77,  1905;  07,  1906;  10,  1909. 

23.  Same— Found  guilty  of"  Absence  from  station  and  duty  without  leave"  may  be  reduced 

to  rating  of  ordinary  seaman.    See  REDUCTION  IN  RATING,  24-27. 

24.  Pay— Enlisted  men  acquitted  by  naval  court-martial  of  desertion,  and  thereby  acquitted 

by  implication  of  tno  lessor  offense  of  unauthorized  absence,  are  entitled  to  pay  dur- 
ing the  period  of  their  alleged  desertion,  if  such  acquittal  be  approved.  C.  M.  0. 14, 
1914,  4;  49, 1915,  8.  See  also  PAY,  1,  2. 

25.  Paymaster's  clerk— Charged  with.    C.  M.  O.  3,  1903;  31, 1905;  G.  C.  M.  Rec.  12768. 

26.  Period — Of  the  unauthorized  absence  should  be  alleged  in  the  specifications,  etc.    See 

ABSENCE.  10-11;  CHARGES  AND  SPECIFICATIONS,  92;  ABSENCE  FROM  STATION  AND 
DUTY  WITHOUT  LEAVE,  29. 

27.  Reduction  In  Bating — Officers  may  be  reduced  to  rating  of  ordinary  seaman  if  found 

guilty  of  "Absence  from  station  and  duty  without  leave."  See  REDUCTION  IN 
RATING,  24-27. 

28.  Specifications— Period  or  duration  of  unauthorized  absence  should  be  alleged  in  speci- 

fications, etc.  See  ABSENCE,  10-11;  CHARGES  AND  SPECIFICATIONS,  92;  ABSENCE 
FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

29.  Time  ot  beginning — Gist  of  the  offense  is  the  unauthorized  absence,  and  an  incorrect 

allegation  in  the  specification  of  time  of  beginning  of  such  unauthorized  absence  is 
not  a  substantial  defect,  and  such  defect  is  waived  by  a  plea  of  "guilty."  In  this 
offense  it  is  the  act  itself  and  not  the  time  that  is  the  necessary  element .  File  26287- 
1125,  J.  A.  G.,  March  19,  1912.  See  also  ABSENCE,  10, 11;  CHARGES  AND  SPECIFI- 
CATIONS, 92. 

30.  Trial  for—  When  extending  over  period  of  enlistment.    See  ENLISTMENTS,  9-11. 

31.  Warrant  officer— Charged  with.    C.  M.  O.  114,  1894;  142,  1897;  104,  1901;  80,  1904;  30, 

1905;  86,  1905;  102,  1905;  62,  1905;  93,  1906;  96,  1906;  65, 1907;  117,  19Q7;  32,  1910;  17. 
1912;  31,  1912;  11,  1916;  G.  C.  M.  Rec.  20746;  20280;  8277;  10015. 

32.  Warrant  officer,  acting— Charged  with.    C.  M.  0. 102, 1905;  120, 1907. 

33.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  0. 78, 1907;  32, 1912. 

34.  "Without  leave  from    proper  authority"— Found  not  proved.    Finding  disap- 

proved.   File  20251-12739,  Sec.  Navy,  Jan. ,  1917. 

ABSENCE  WITHOUT  LEAVE  AND  OUT  OF  UNIFORM  ASHORE. 

1.  Charge  criticised  by  department.— A  fleet  convening  authority  preferred  this  charge 
against  an  accused.  The  department  stated  that  it  was  extremely  irregular  in  that 
it  contained  more  than  one  offense  "of  a  perfectly  distinct  nature"  (R-712(2),  and 
is  not  phrased  in  the  form  prescribed.  It  is  obvious  that  the  court  erred  when  "it 
found  the  charges  and  specifications  in  due  form  and  technically  correct."  C.  M.  O. 
35, 1915,  6-7.  See  also  CHARGES  AND  SPECIFICATIONS,  53. 

ABSENTING  HIMSELF  FROM  HIS   COMMAND  WITHOUT  LEAVE. 

1.  Officer— Charged  with.    C.  M.  O.  34,  1889. 

ABSENTING  HIMSELF  FROM  HIS  POST  OF  DUTY  IN  TIME  OF  DANGER. 

1.  Officers— Charged  with.    C.  M.  O.  21,  1883;  22, 1883. 

ABUSIVE  AND  PROFANE  LANGUAGE. 

1.  Specification  of— The  objectionable  language  used  by  the  accused  must  bo  set  forth  in 

the  specification  alleging  its  use.    C.  M.  O.  7,  1911,  13. 

2.  Under  Massachusetts  statutes— On  this  subject.    Sec  File  20251-2993:12. 

ABUSIVE  LANGUAGE  TOWARD  OTHER  PERSONS  IN  THE  NAVY. 

1.  Duplicity— Where  the  accused   used   abusive  language  toward  three  other  enlisted 

men,  the  department  stated  that  the  rules  of  pleading  as  to  duplicity  required  that 
three  separate  specifications  should  have  been  used,  instead  of  only  one.  The  con- 
vening authority  (fleet),  after  commenting  upon  several  irregularities,  approved  the 
proceedings,  findings,  and  sentence.  C.  M.  O.  150, 1897,  2-3.  See  also  C.  M.  O.  160, 
1897,  2. 

2.  Wrong  phraseology — In  the  above  case  the  department  held  that  it  would  have 

been  better  pleading  had  each  of  the  three  allegations  embraced  in  the  one  specifica- 
tion been  made  the  basis  of  a  separate  specification,  and  that  the  charge,  to  conform 
to  the  department's  practice  in  such  matters,  should  have  been  "  Using  abusive 
language  toward  another  person  in  the  Navy."  C.  M.  O.  150, 1897,  3. 


ACCUSED.  9 

ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY. 

1.  Ensigns — Appointment  of.    See  APPOINTMENTS,  17. 

2.  Function  and  duties  of — The  Academic  Board  was  first  given  powers  with  respect 

to  the  final  graduating  examination  of  midshipmen  by  the  act  of  August  5,  1882  (22 
Stat.,285).  The  change  then  made  in  the  law  must  have  been  due  to  a  change  in 
the  regulations  of  the  Naval  Academy,  which  have  now  (1910)  for  many  years  pro- 
vided that  the  final  graduating  examination  shall  be  conducted  by  the  Academic 
Board  instead  of  a  special  examining  board,  as  was  originally  the  case.  File  5252-36, 
J.  A.  G.,  May  5,  1910,  p.  6. 

3.  Origin,  powers,  etc.    See  File  5140,  J.  A.  G.,  June  23,  1906;  5146:1;  5146:2. 

4.  Recommendation  of  is  not  final— The  recommendation  of  the  Academic  Board  that 

a  midshipman  found  deficient  upon  examination  for  promotion  to  ensign  be  dropped 
from  the  service  is  not  final;  but  such  recommendation  may  be  disapproved  by  the 
department  and  the  midshipman  continued  in  the  service  until  further  reports  on 
fitness  in  his  case  may  be  received  and  considered  by  the  department.  File  5252-36, 
J.  A.  G.,  May  5, 1910.  See  alio  Comp.  Dec.,  Aug.  23,  1913,  20  Comp.  Dec.  141,  File 
26254-1277:1,  re  powerof  Academic  Board  in  case  of  midshipmen  found  physically 
deficient. 

ACADEMY,  NAVAL.    See  NAVAL  ACADEMY. 
ACCEPTANCE  OF  RESIGNATIONS.    See  RESIGNATIONS. 

ACCESSORIES. 

1.  Sentence— Used  in.  See  Weemsa.  U.S.  (217  U.S.,  349);  Graftont).  U.  S.  (206  U.  S.,333); 
Navy  Regulations,  1913,  R-816  (4).  See  also  SENTENCES,  3. 

ACCIDENT  POLICY. 

1.  Medical  certificate  on  accident  policy — Naval  surgeons  are  without  authority  to 
sign  unofficial  medical  certificates  on  accident  policies  of  officers.  File  26800-15. 
See  also  File  5195-61:1;  C.  M.  O.  29, 1915,  7;  MEDICAL  RECORDS,  3-5. 

ACCOMPLICE. 

1.  Officer  issuing  an  order — Which  is  illegal  as  applied  to  the  existing  facts,  and  does 

so  either  knowingly  or  in  culpable  disregard  of  what  conditions  exist,  is  an  accomplice 
in  the  illegal  action  taken  by  his  subordinate  pursuant  to  such  order.  C.  M.  O.  37, 
1915. 

2.  Sodomy.    See  SODOMY,  6. 

ACCOUNT,  NAVAL  SUPPLY.    See  File  24482-31,  J.  A.  G.,  Feb.  17, 1911;  24482-34,  J.  A.  G. , 
May  1, 1911. 

ACCUMULATION  OF  OFFENSES. 

1.  Offenses— Shall  not  be  allowed  to  accumulate  in  order  that  sufficient  matter  may  thus 

be  collectively  obtained  for  a  trial,  without  due  notice  to  the  offender.  C.  M.  O.  38, 
1894,2.  See  also  CHARGES  AND  SPECIFICATIONS,  3. 

2.  Plea  in  bar  of  trial— On  ground  that  offenses  were  allowed  to  accumulate.    The  plea 

was  not  allowed  by  the  court.    C.  M.  O.  38, 1894,  2, 3. 

ACCUSED. 

1.  Absence  of— Naval  courts-martial  are  empowered  to  require  the  presence  of  the  ac- 

cused during  the  entire  proceedings  and  should  always  exercise  this  power  to  avoid 
any  possible  irregularity.  While  an  irregularity  of  this  character  does  not  necessarily 
invalidate  the  proceedings,  the  department  looks  upon  it  with  great  disfavor.  C. 
M.  O.  51,  1914,  2.  See  also  G.  C.  M.  Rec.  No.  21223;  24633;  29422;  File  26251-9996:2; 
Simon  v.  Craft,  182  U.S.,  427,435;  Frank  v.  Mangum,  237  U.  S.,  309;  Weirman  v. 
U.  S.,  36  Ct.  Cls.,  236;  REVISION,  1. 

2.  Same — The  action  of  a  naval  general  court-martial  in  permitting  the  accused,  upon  a 

request  made  expressly  by  himself  and  not  merely  by  counsel,  to  be  absent  from  the 
immediate  presence  of  the  court  during  the  testimony  of  expert  witnesses  for  the 
defense  concerning  the  physical  and  mental  condition  of  the  accused,  did  not  invali- 
date the  proceedings,  such  action  being  due  to  humanitarian  considerations  based 
upon  representations  of  counsel  for  accused  as  to  latter's  health,  and  that  it  would 
be  "cruel"  to  require  his  personal  attendance  during  specified  portions  of  the  trial. 
C.  M.  O.  51, 1914, 1-2.  See  also  ACCUSED,  1. 


10  ACCUSED. 

3.  Same— The  judge  advocate  should  not  be  present  In  the  court  room  during  closed 

court.  However,  the  presence  of  the  judge  advocate  when  a  naval  court-martial 
is  closed  for  deliberation,  and  when  the  accused,  his  counsel,  and  spectators  have 
consequently  withdrawn,  while  a  grave  irregularity  and  a  disregard  of  Navy  Regu- 
lations, 1913,  R-787  (3),  the  provisions  of  which  are  directory  only  and  not  manda- 
tory, would  not  necessarily  render  the  proceedings  invalid.  C.  M.  0. 51, 1914, 1, 2;  6, 
1915.  6;  41,  1915,  10;  49,  1915,  10,  12,  14.  See  also  C.  M.  O.  88.  1895.  12;  1,  1897,  1-2; 
G.  C.  M.  Roc.  No.  24633;  File  26251-5558;  26251-9990:2;  212  Fed.  Rep.,  569;  JUDGE 
ADVOCATE,  104,  105.  But  see  C.  M.  O.  61, 1894,  3;  127, 1900, 1;  216, 1901,  2. 

4.  Same— "According  to  the  record  the  accused  was  not  present  when  the  various  wit- 

nesses were  called  before  the  court  to  correct  their  testimony.  Some  of  the  correc- 
tions made  showed  material  changes  in  the  evidence  given,  and  the  action  of  the 
court  in  conducting  this  part  of  the  proceedings  without  the  attendance  of  the  ac- 
cused was  illegal."  In  view  of  this  fact  and  of  other  irregularities  the  department 
disapproved  the  proceedings.  C.  M.  O.  44,  1909.  See  also  G.  C.  M.  Rec.  No.  21223. 
But  see  ACCUSED,  1,  2,  holding  that  such  irregularity  as  this  does  not  necessarily 
invalidate. 

5.  Same— If  a  statement  as  set  forth  in  a  general  court-martial  record  that  the  accused  with- 


6.  Same— The  record  was  returned  to  the  court  for  revision  to  correct  the  record  as  to  the 

notations  regarding  the  arraignment  of  the  accused  who  had  been  tried  in  joinder. 
"The  accused  were  not  present  at  the  revision  as  they  should  have  been,  since  the 
arraignment  occurred  in  open  court."  The  department  because  of  this  irregularity 
and  other  reasons  "accordingly  disapproved  the  proceedings  and  findings"  and  "set 
the  sentence  aside."  C.  M.  O.  78, 1905, 1.  But  see  ACCUSED  1,  2. 

7.  Same— Where  the  record  by  the  omission  of  an  entry  on  the  record  fails  to  show  the 

accused  present  during  a  step  in  the  proceedings  but  the  record  taken  as  a  whole 
showed  him  present  continuously  during  the  trial,  the  department  held  that  the  irreg- 
ularity was  merely  a  "clerical  error."  C.  M.  O.  47, 1910, 7-8;  12, 1911, 3. 

8.  Same — Clerical  errors  in  general  court-martial  records  may  be  amended  by  the  court  in 

revision  without  the  presence  of  the  accused.    See  RECORD  OF  PROCEEDINGS,  26,  27. 

9.  Same— Where  the  court  received  evidence  with  reference  to  a  plea  in  bar  of  trial,  during 

the  absence  of  the  accused,  the  department,  while  approving  the  conclusions  reached, 
stated  "  the  mode  of  introducing  that  proof  was  wholly  irregular,  and  is  disapproved." 
G.  0. 152,  March  29, 1870.  See  also  COURT,  22. 

10.  Admissions  in  open  court — Of  certain  allegations  in  the  specifications.    See  AD- 

MISSIONS, 1. 

11.  Affidavit— Inadmissible  in  connection  with  accused's  statement.    See  AFFIDAVITS,  7. 

12.  Amenability  of,  to  trial— Statute  of  limitations  having  run.    See  STATUTE  OF  LIMI- 

TATIONS. 

13.  Arraignment  of  accused.    See  ARRAIGNMENT. 

14.  Arrest,  released  from— Record  should  show  that  accused  (officer)  in  proper  cases  was 

released  from  arrest  and  restored  to  duty.    See  ARREST,  8,  9,  27. 

15.  Caution,  to— As  to  incriminating  himself  when  a  witness.    See  SEI.F-INCRIMINATION,  8. 

16.  Same — When  resuming  his  status  after  testifying.    See  WITNESSES,  10. 

17.  Character— Official  record  of  accused  is  best  evidence  of  his  character.    C.  M.  0. 1, 1914, 

5,  7.    See  also  EVIDENCE,  12. 

18.  Same — When  evidence  as  to  character  of  accused   may  be  placed  in  evidence.    See 

EVIDENCE,  12-22. 

19.  Same — Witnesses  as  to  character  of  accused  will  not  be  subpoenaed  from  other  stations 

at  Government  expense.    C.  M.  O.  1,1914, 5, 7.    See  also  EVIDENCE,  12;  WITNESSES. 

20.  Charges  and  specifications— Copy  of  furnished  accused.    See  CHARGES  AND  SPECI- 

FICATIONS, 4,  5, 18. 

21.  Confession  by— When  admissible.    See  CONFESSION. 

22.  Constitutional  rights  of.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED. 

23.  Continuance — Should  be  granted  accused  by  court,  if  request  for  is  reasonable  and  it  is 

practicable  to  do  so.    See  CONTINUANCES. 

24.  Convening  authority— Action  of  will  be  furnished  by  department  upon  application 

of  accused.    C.  M.  O.  21, 1909,  2.    See  also  ACCUSED,  36;  RECORD  or  PROCEED- 
INGS, 32. 

25.  Copy  of  charges  and  specifications— Received  10  days  before  trial.    See  CHARGES 

AND  SPECIFICATIONS,  18. 


ACCUSED.  1 1 

26.  Counsel.    See  COUNSEL. 

27.  Crimination.    See  SELF-!NCRIMINATION. 

28.  Cross-examination — The  accused  has  a  right  to  cross-examine  witnesses  and   the 

record  must  show  that  the  accused  was  given  the  opportunity  to  cross-examine  the 
witnesses  against  him.  See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  16. 

29.  Defense  of— Precluded  by  plea  of  "guilty."    See  EVIDENCE,  50-53. 

30.  Definition  of — Use  of  term  "accused"  in  trials  in  joinder.    See  JOINDER,  TRIAL  IN,  14. 

31.  Deposition — Prior  notice  should  be  given  accused  of  intention  to  use.    See  DEPOSI- 

TION, 1. 

32.  Designation  and  name  of  accused— Should  appear  in  sentence.    See  SENTENCES,  33. 

33.  Discharged  as  undesirable— After  acquittal.    C.  M.  O.  11,  1905,  2. 

34.  Same— After  case  was  disapproved.    C.  M.  O.  39, 1905,  2;  78, 1905, 1. 

35.  Errors  without  injury.    See  ERKOR  WITHOUT  INJURY. 

36.  Findings,  sentence,  and  action  of  convening  authority — Will  not  be  furnished 

the  accused  until  after  the  publication  of  the  sentence,  or,  in  trials  ordered  by  the 
department,  they  will  be  furnished  by  the  department  upon  application  of  the 
accused.  See  RECORD  OF  PROCEEDINGS,  32. 

37.  "Guilty,"  plea  of— Waives  defects  in  specifications.    See  ABSENCE  FROM  STATION 

AND  DUTY  WITHOUT  LEAVE,  29. 

38.  Same — After  plea  of  "Guilty,"  accused  may  introduce  only  evidence  in  extenuation,  of 

a  palliative  nature,  and  of  good  character.    See  EVIDENCE,  50-53. 

39.  Same — Judge  advocate  not  even  to  suggest.    See  JUDGE  ADVOCATE,  34. 

40.  Same— Precludes  regular  defense.    See  EVIDENCE,  50-53. 

41.  Half-witted.    See  INSANITY,  20. 

42.  Identity  of— Essential  in  proving  fraudulent  enlistment.    See  FRAUDULENT  ENLIST- 

MENT, 51. 

43.  Incrimination.    See  SELF-INCRIMINATION. 

44.  Insane.    See  INSANITY. 

45.  Irresponsible.    See  INSANITY,  20,  27. 

46.  Joinder — Trial  in.    See  JOINDER,  TRIAL  IN. 

47.  Judge  Advocate— Relation  to  accused  before  and  during  trial.    See  JUDGE  ADVOCATE, 

25,  28-44,  86. 

48.  Mute— When  arraigned.    See  ARRAIGNMENT,  18-24. 

49.  Name  and  designation  of  accused — Should  appear  in  sentence.    See  SENTENCES,  33. 

50.  Name  of  accused — Middle  name  may  be  abbreviated  in  specifications.    See  ABBREVIA- 

TION, 1. 

51.  Offense — More  serious  if  committed  by  officer  on  duty  at  Naval  Academy.    C.  M.  0. 14, 

1915. 

52.  Same — More  serious  when  committed  by  an  accused  of  long  service  and  who  has  been 

entrusted  by  his  superiors  with  a  position  of  responsibility,  as  an  offense  committed 
by  such  a  man  has  a  far  more  detrimental  effect  upon  the  naval  service  because  of 
the  example  which  he  thereby  sets  his  subordinates  and  others  likely  to  be  influenced 
by  his  misconduct.  C.  M.  O.  1, 1914. 8. 

53.  Pay,  forfeiture  of — Should,  in  general,  be  remitted  only  as  an  act  of  clemency  to 

accused.    See  ALLOTMENTS,  6;  PAY,  23. 

54.  Pay  account  of — A  statement  of  the  pay  account  status  of  an  accused  is  not  contem- 

plated in  the  procedure  for  general  courts-martial,  and  is  made  a  part  of  summary 
court-martial  procedure  merely  as  an  aid  to  such  a  court-martial  in  preventing  an 
excessive  or  illegal  sentence.  C.  M.  O.  28, 1910,  4.  See  also  File  3980-1051. 

55.  Physical  condition  of — Court  should  not  consider  in  adjudging  sentence.    See 

CLEMENCY,  41,  42. 

56.  Plea  of  guilty— Waives  defects  in  specifications.    See  ABSENCE  FROM  STATION  AND 

DUTY  WITHOUT  LEAVE  29. 

57.  Sentence — Will  be  furnished   by  department  upon   application   of  accused.    See 

ACCUSED,  36;  RECORD  OF  PROCEEDINGS,  32. 

58.  Statement  in  presence  of  accused— Admissible  in  evidence.    C.  M.  O.  214,  1902. 

See  also  DESERTION,  125;  STATEMENTS  MADE  IN  PRESENCE  OF  ACCUSED. 

59.  Statement  of  accused.    See  STATEMENT  OF  ACCUSED. 

60.  Testimony  of— The  testimony  of  the  accused  unsupported  by  other  corroborative 

evidence  should  not  be  accorded  entire  credit.    See  WITNESSES,  4,  7. 

61.  Trial— Accused  is  solely  responsible  for  informing  his  natural  or  legal  guardians  or  rela- 

tives of  the  fact  that  he  is  to  be  tried  by  general  court-martial.  C.  M.  O.  27, 1915, 10. 
See  also  CHARGES  AND  SPECIFICATIONS,  18. 

62.  Warning — It  is  not  necessary  that  the  accused  should  be  warned  that  any  statement 

he  might  make  would  be  used  against  him  as  evidence.    See  CONFESSIONS,  26, 27. 


12  ACCUSED. 

63.  Same— It  is  Improper  and  contrary  to  the  Navy  Regulations  to  warn  or  caution  the 

accused,  after  he  has  been  a  witness,  not  to  converse  upon  matters  pertaining  to  the 
trial.  See  WITNESSES,  10. 

64.  Same— Accused  should  be  warned  as  to  the  effects  of  his  plea  of "  guilty  "—Where  this 

was  not  done  the  department  disapproved.  C.  M.  O.  47.  1892;  84,  1894,  3.  See  also 
C.  M.  O.  5,  1911,  4;  WARNING,  2.  Note.— This  irregularity  is  not,  in  general,  nec- 
essarily fatal. 

65.  Withdrawal  of.    See  ACCUSED,  5. 

66.  Witness — Accused  as  witness.    See  WITNESSES,  1-11. 

67.  Youth— Of  accused  as  grounds  for  clemency.    See  CLEMENCY,  67-71. 

ACCUSER. 

1.  Court  of  Inquiry — Accuser  can  not  demand  a  copy  of  the  record.    See  COURTS  OF 
INQUIRY,  1, 12. 

ACQUITTAL. 

1.  Absence,  authorized — Approval  of  acquittal  of  unauthorized  absence  entitles  accused 

to  pay  during  such  absence.    See  PAY,  1.    See  also  CONFINEMENT,  7;  DESERTION,  9. 

2.  Same — Acquittal  of  desertion  is  also  acquittal  of  absence  from  station  and  duty  without 

leave.  C.  M.  0. 14, 1914, 4-5.  See  also  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 
LEAVE,  14;  DESERTION,  9;  PAY,  1. 

3.  Same— Acquittal  of  a  charge  of  unauthorized  absence  is  also  an  acquittal  of  desertion. 

Finding  of  "absence  from  station  and  duty  without  leave"  on  a  charge  of  "de- 
sertion "  is  an  acquittal  of  "desertion."  C.  M.  O.  17, 1910,  8-10.  See  also  ABSENCE 
FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  18;  DESERTION,  6. 

4.  Arrest  and  acquittal  by  civil  authorities— As  a  defense.    See  ABSENCE  FROM  STATION 

AND   DUTY  AFTER  LEAVE  HAD   EXPIRED,  3,4. 

5.  Authorized  forms  of  acquittal — There  are  only  four  authorized  forms  of  acquittal  in 

naval  court-martial  procedure:  (a)  Simple  acquittal,  (6)  "fully  acquit,"  (c)  "honor- 
ably acquit,"  (d)  "most  fully  and  honorably  acquit."  The  foregoing  supersedes  the 
forms  of  acquittal  given  in  Forms  of  Procedure,  1910,  p.  40,  and  the  use  of  any  other 
form  is  prohibited.  C.  M.  O.  29, 1916, 2-3. 

6.  Court-martial  orders — Published  where  officers  acquitted  of  all  charges  (File  26504- 

189.  Sec.  Navy,  Mar.  18,  1910,  overruled).  C.  M.  O.  20,  1900;  4,  1908;  5, 1908;  35,  1908; 
32,  1915;  36/1915;  38,  1915;  41,  1915;  21,  1916;  40,  1916.  See  also  ACQUITTAL,  24; 
COURT-MARTIAL  ORDERS,  1. 

7.  Disapproval  of  findings  and  acquittal — In  cases  of  officers.    C.  M.  O.  44,  1883,  5;  3, 

1884,  3;  14,  1914,  f;  29,  1914,  10;  32,  1915;  38, 1915,  5;  41,  1915;  24,  1916,  5. 

8.  Same— In  cases  of  commissioned  warrant  officers.    C.  M.  O.  28, 1915,  3;  36, 1915. 

9.  Same— Because  the  judge  advocate  tried  case  out  of  court.    C.  M.  O.  42, 1915,  8. 

10.  Same — Department  disapproved  the  findings  and  acquittal  as  an  approval  might  mis- 

lead courts-martial.    C.  M.  O.  14,  1914,  56;  29,  1914,  10.    Seeaho  C.  M.  O.  41,  1885. 

11.  Dismissal — Acquittal  of  accused  (paymaster's  clerk)  approved  but  accused  dismissed 

from  naval  service.    C.  M.  O.  100,  1901.    But  see  C.  M.  O.  15.  1902. 

12.  Embezzlement— Effect  of  acquittal  on  the  financial  responsibility  of  accused.    C.  M.  O. 

39, 1913. 11.    See  also  EMBEZZLEMENT,  25. 

13.  "Entirely"— Court  did  "entirely  acquit"  accused.    C.  M.  O.  115, 1894. 

14.  Finding  of  "Not  guilty"— Should  be  followed  by  a  statement  of  acquittal.    See  FIND- 

INGS, 63. 

15.  "Fully  acquit."    C.  M.  O.  44,  1883,  3;  32,  1909;  41,  1909;  29,  1916;  G.  C.  M.  Bee.  No. 

31423. 

The  use  of  this  form  of  acquittal  indicates  that  a  court  not  only  fails  to  find  a  charge 
proved  beyond  a  reasonable  doubt,  but  that  it  finds  no  facts  whatever,  as  brought 
out  by  the  evidence  introduced  in  the  case,  which  reflect  adversely  on  the  conduct 
of  the  accused  in  connection  with  matters  pertaining  to  the  charge  and  specification. 
In  other  words,  a  court  should  not  "fully  acquit"  in  cases  where  the  record  shows 
any  uncontroverted  facts  whatever  reflecting  upon  the  accused.  C.  M.  O.  29, 1916,2. 

16.  "Fully  and  honorably."    See  CRITICISM  OF  COURTS-MARTIAL,  22;  File  26251-12159. 

17.  Handwriting— An  acquittal  should  be  recorded  in  the  handwriting  of  the  judge  advo- 

cate.   C.  M.  O.  29,  1914.  5. 

18.  "Honorably  acquit."    G.  0. 118,  Mar.  27,  1869;  C.  M.  O.  28,  1882. 

This  form  is  to  be  employed  only  in  cases  where  the  offense  charged  is,  besides 
being  an  offense  against  military  authority,  of  such  a  character  that  a  conviction 
thereof  would  tend  to  dishonor  the  accused,  such  as,  for  example,  a  charge  of  "Con- 


ACQUITTAL.  13 

duct  unbecoming  an  officer  and  a  gentleman."  This  acquittal,  as  in  the  case  of  a 
full  acquittal,  should  never  be  used  if  the  record  shows  any  adverse,  uncontro- 
verted  evidence  reflecting  upon  the  accused.  C.  M.  O.  29, 191C,2. 

19.  "Most  fully  and  honorably."    C.  M.  O.  214, 1901;  38, 1905,  2;  5, 1913,  2,  7, 12, 13;  27, 

1913,  6;  41,  1915;  File  26251-12159,  Sec.  Navy,  Oct.  7,  1916,  p.  6;  DEBTS,  24. 

20.  Same — The  court  not  only  acquitted  the  accused  but  did  "most  fully  and  honorably 

acquit"  him,  this  being  the  very  highest  degree  of  the  six  diiferont  forms  of  acquittal 
known  to  naval  procedure.  Ply  such  action  the  court  in  effect  puts  the  highest 
stamp  of  approval  upon  the  actions  of  the  accused.  (C.  M.  O.  5,  1913;  27,  1913,  9; 
File  26251-7776.)  An  acquittal  of  this  character  would  mean  not  only  that  the 
accused  was  blameless  but  that  his  conduct  was  creditable,  and  that  he  was  not 
only  not  negligent,  but  that  he  zealously  guarded  the  interests  of  the  Government 
at  all  times.  C.  M.  O.  41, 1915, 11. 

This  form  should  be  used  only  in  extreme  cases,  in  which  not  only  have  the 
requirements  of  "full"  and  "honorable"  acquittals  been  fulfilled,  but  in  which  the 
court  wishes  to  place  the  highest  stamp  of  approval  upon  the  actions  of  the  accused 
in  connection  with  the  matters  cpvered  by  the  specifications.  The  use  of  this  form 
of  acquittal  might,  for  example,  be  justified  in  the  case  of  an  officer  charged  with 
unbecoming  conduct  in  battle  if  the  court  wished  to  make  it  a  matter  of  record  that, 
far  from  considering  the  conduct  of  such  officer  censurable,  it  both  approved  ana 
commended  his  conduct.  ( For  examples  of  an  improper  use  of  this  form  of  acquittal, 
see  C.  M.  O.  5, 1913,  3;  27,1913,9;  41,1915,11.)  C.  M.  O.  29, 1916,2. 

It  will  be  noted  that  there  is  no  legal  distinction  between  a  simple  acquittal  and 
one  to  which  one  of  the  additional  expressions  or  embellishments  has  been  added, 
and  it  is  to  be  emphasized  that  only  in  exceptional  cases  is  the  use  of  any  form  of 
acquittal  other  than  the  simple  acquittal  justified.  Unless  this  rule  be  strictly 
adhered  to  and  other  forms  of  acquittal  reserved  for  special  cases,  the  distinction 
drawn  between  the  various  forms  will  be  lost,  and  not  only  would  a  simple  ac- 
quittal be  robbed  of  its  full  absolving  significance,  but  also  the  proper  purposes  for 
which  the  other  forms  of  acquittal  are  reserved  would  be  defeated.  C.  M.  O.  29, 
1916,3. 

21.  "Not  guilty"— If  the  finding  is  "not  guilty"  upon  any  charge,  the  explicit  statement 

should  immediately  follow  that  the  court  acquits  the  accused  of  such  charge.  See 
FINDINGS,  63. 

22.  Officers  acquitted — Of  some  but  not  all  of  the  charges  against  them.    C.  M.  O.  26, 

1909;  27,  1909;  32,  1909;  41,  1909;  44.  1909;  52,  1910;  5,  1913;  7,  1914,  3;  10,  1914;  50. 
1914;  33,  1915;  1,  1916. 

23.  Same—Of  all  charges.    C.  M.  O.  26, 1906;  5, 1908;  35, 1908;  26, 1909;  44, 1909;  32, 1915;  38, 

1915;  41, 1915;  21, 1916;  40,1916;  43,1916. 

24.  Same — Court-martial  orders  shall  be  published  where  officers  are  acquitted  of  all  the 

charges  (File  26504-189.  Sec.  Navy,  Mar.  18, 1910,  overruled).  See  ACQUITTAL,  6; 
COURT-MARTIAL  ORDERS,  1. 

25.  "Proved  but  without  criminality" — Is  virtually  a  form  of  acquittal  and  is  not  to  be 

encouraged.    C.  M.  O.  10,  1911,  5;  10,  1913,  3-5. 

26.  Setting  aside — There  is  no  power  to  set  aside  the  verdict  of  acquittal,  and  the  accused 

is  entitled  by  law  to  the  lull  benefit  of  it.    C.  M.  O.  101, 1903, 10. 

27.  Simple  acquittal— This  form,  which  will  be  referred  to  as  a  simple  acquittal,  should 

be  used  in  all  cases  except  in  the  three  special  cases  (ACQUITTAL,  5).  The  use  ol 
this  form  sufficiently  records  the  fact  that  the  court  has  not  sustained  the  charge 
and  has  the  same  legal  effect  as  an  acquittal  expressed  with  some  embellishment. 
C.M.  0.29,1916,2. 

28.  Warrant  officers  (commissioned)  acquitted — Acquitted  of  some  but  not  all  of  the 

charges  against  them.    C.  M.  O.  23,  1915;  28,  1915.    See  also  C.  M.  0. 28, 1916. 

29.  Same— Of  all  charges.    C.  M.  O.  36, 1915. 

30.  Without  prosecution— Where  the  accused  pleaded  "Not  guilty"  and  the  recorder 

stated  that  there  were  no  witnesses  available  to  prove  the  offense,  and  recommended 
that  the  court  accept  the  plea  of  the  accused,  the  department  held  that  a  finding 
which  acquitted  the  accused  was  improper  and  irregular  and  that  the  trial  should 
have  been  postponed  until  witnesses  were  available.  C.  M.  O.  42, 1909, 15-16. 

31.  Witnesses — A  court-martial  order  was  published  in  the  case  of  an  officer  who  was 

acquitted  and  contained  this  notation:  "The  publication  of  this  general  court- 
martial  order  carries  with  it  no  reflection  upon  any  witness  who  testified  before  the 
court."  C.  M.  O.  214, 1901. 


14  ACTING   JUDGE    ADVOCATE. 

ACTING  APPOINTMENTS. 

1.  Honors  due  an  officer — Navy  Regulations,  1905,  R-46,  respecting  honors  due  an 
officer  while  serving  under  an  acting  appointment  was  held  to  apply  to  an  Acting 
Commandant  and  Governor  of  an  insular  possession  of  the  United  States.  File 
4451.  See  also  GUAM,  1. 

ACTING  ASSISTANT  DENTAL  SURGEONS.  See  also  DENTAL  SURGEONS  2. 
1.  Appointment  of— An  acting  assistant  dental  surgeon  for  temporary  service,  who 
had  originally  requested  permission  to  be  examined  for  an  appointment  as  acting 
assistant  dental  surgeon  for  temporary  service  and  who  upon  examination  had 
failed  physically  (general  obesity),  which  disability  had  been  waived  because  "the 
appointment  is  for  temporary  service,"  requested  that  the  temporary  appointment 
be  made  permanent.  In  view  of  the  entire  dissimilarity  in  the  status  of  an  "acting 
assistant  dental  surgeon  for  temporary  service"  as  compared  with  one  of  permanent 
tenure,  it  was  held  that  the  present  "temporary  appointment"  of  this  officer  could 
not  be  made  "permanent"  from  the  date  of  entry  in  the  service,  but  that  he  may 
be  legally  authorized  to  undergo  examination  for  an  original  appointment  in  the 
same  manner  as  if  he  did  not  hold  his  present  appointment  for  temporary  service: 
File  13707-46.  J.  A.  G.,  Mar.  19,  1915;  C.  M.  O.  12,  1915,  8.  See  also  Act  of  Aug.  29, 
1916. 

ACTING  ASSISTANT  SURGEONS. 

1.  Appointment  of— The  law  authorizing  the  appointment  of  acting  assistant  surgeons 

reads  in  part  as  follows: 

" The  President  is  hereby  authorized  to  appoint  for  temporary  service  25  acting 
assistant  surgeons,  who  shall  have  the  relative  rank  and  compensation  of  assistant 
surgeons."  (30  Stat.  380.)  File  28407-13,  J.  A.  G.,  Mar.  24, 1915;  C.  M.  O.  12, 1915, 10. 
See  also  MEDICAL  RESERVE  CORPS  OF  THE  NAVY.  1. 

2.  Same — A  candidate  who  fails  by  a  small  margin  in  his  examination  for  appointment 

as  acting  assistant  surgeon  may  be  given  an  appointment  as  such  without  further 
examination,  should  the  department  so  desire,  there  being  nothing  in  the  Navy 
Regulations  concerning  such  appointment  or  examination,  and  any  provisions  in 
circulars  issued  by  the  department  may  be  waived  by  the  department  at  any  time. 
File  15229-6,  J.  A.  G.,  May  15,  1911. 

3.  Death  gratuity— The  term  "officer  or  enlisted  man"  in  act  of  May  13,  1908  (35  Stat. 

12S)  includes  all  persons  in  the  service  and  applies  to  acting  assistant  surgeons.  File 
26543-10,  Sec.  Navy,  Sept.  11,  1908. 

4.  Marine  examining  boards— Acting  assistant  surgeons  are  not  "medical  officers  of 

the  Navy"  within  the  provisions  of  section  1621,  R.  8.,  but  are  officers  in  the  tem- 
porary service  of  the  Navy.  (See  Taylor  v.  U.  S.,38  Ct.  Cls.155.)  Therefore  such 
officers  are  not  eligible  for  duty  as  members  of  a  marine  examining  board.  File 
947-M. 

5.  Medical  Reserve  Corps— Appointment  of  Medical  Reserve  Corps  officers  as  acting 

assistant  surgeons.    See  MEDICAL  RESERVE  CORPS  OF  THE  NAVY,  1. 

6.  Retirement.   See  RETIREMENTS  OF  OFFICERS,  2. 

7.  Status  of,  in  1865— From  the  language  of  the  act  of  July  24,  1861  (12  Stat.  273). acting 

assistant  surgeons  served  under  temporary  acting  appointments  made  by  the 
Secretary  of  the  Navy  for  a  limited  time,  either  "until  the  return  of  the  vessels  in 
which  they  are  respectively  employed,  or  until  the  suppression  of  the  present  in- 
surrection." They  received  the  same  pay  as  assistant  surgeons;  they  were  entitled 
to  wear  the  uniform  of  the  grade  to  which  appointed;  and  to  annex  the  title  of  their 
acting  rank  to  their  official  signatures.  While  these  officers,  therefore,  were  not 
commissioned,  they  nevertheless  occupied  the  status  of  officers  of  the  volunteer 
Navy;  they  were  not  enlisted  men.  File  26510-579,  J.  A.  G.,  Oct.  25,  1911. 

ACTING  BOATSWAINS. 

1.  General  court-martial— Tried  by.    C.  M.  0. 102, 1905;  105, 1905. 

2.  Sentence  of  dismissal— Confirmed  by  President.    C.  M.  O.  102,  1905. 

ACTING  GOVERNOR. 

1.  Guam.  See  ACTING  APPOINTMENTS,  1;  COMMANDANTS  OF  NAVY  YARDS  AND  NAVAL 
STATIONS,  1,  2;  GUAM,  1. 

ACTING  GUNNER. 

1.  General  court-martial— Tried  by.    C.  M.  O.  3,  1911,  1. 

ACTING  JUDGE  ADVOCATE.    See  JUDGE  ADVOCATE  GENERAL,  1. 


ADDITIONAL   CHARGES   AND   SPECIFICATIONS.  15 

ACTING  JUDGE  ADVOCATE  GENERAL.    See  JUDGE  ADVOCATE  GENERAL,  2,3,18. 

ACTING  MACHINISTS. 

1.  Status  of— Pending  the  issuance  of  a  warrant  the  status  of  an  acting  machinist  unques- 
tionably continues  to  be  that  of  an  enlisted  man,  although  at  the  same  time  acting 
as  a  warrant  officer,  and  he  is  therefore  entitled  to  draw  interest  on  his  deposits  or 
to  make  additional  deposits  in  accordance  with  the  act  of  February  9,  1884  (25 
Stat.  657).  File  26254-2020,  Sec.  Navy,  June  6, 1916.  See  also  DEPOSITS,  1,4. 

ACTING  MASTER'S  MATE. 

1.  Dismissal  of.    File  26367-2,  J.  A.  G.,  July  8,  1909. 

ACTING  PAY  CLERKS. 

1.  Appointment  of— Under  provisions  of  act  of  March  3,  1915  (38  Stat.  942).  C.  M.  O. 
12,  1915,  13;  29,  1915,  8;  31,  1915,  5.  See  also  PAY  CLERKS  and  CHIEF  PAY  CLERKS, 
1-3,7. 

ACTING  SECRETARY  OF  THE  NAVY.    See  PRECEDENCE,  29;  SECRETARY  OF  THE 
NAVY,  3. 

ACTING  WARRANT  OFFICERS. 

1.  Appointment  of.    See  PAY  CLERKS  and  CHIEF  PAY  CLERKS,  1-3,7. 

2.  Deposits.    See  ACTING  MACHINISTS,  1;  DEPOSITS,  1,4. 

3.  General  courts-martial.    See  ACTING  BOATSWAINS;  ACTING  GUNNERS. 

4.  Reenlistment— Inasmuch   as  R.  S.  1409  clearly  contemplates  the  concurrence  of  the 

status,  duties,  and  obligations  of  an  enlisted  man,  and  that  of  a  warrant  officer, 
and  in  view  of  th'e  practice  of  the  Bureau  of  Navigation  in  the  matter,  no  objection 
is  perceived  to  the  reenlistment  of  an  acting  warrant  officer  whose  term  of  four  years 
has  expired.  (This  with  view  to  preserving  for  the  man  his  continuous  service 
should  he  fail  to  be  warranted.)  File  7267-03,  J.  A.  G. 

5.  Status  of.    See  ACTING  MACHINISTS,  1. 

ACTION. 

1 .  Convening  authority.    See  CONVENING  AUTHORITY. 

2.  President.    See  PRESIDENT  OF  THE  UNITED  STATES. 

3.  Record  of  proceedings— Action  on— Right  of  accused  to.    See  CHARGES  AND  SPECI- 

FICATIONS, 4.  5, 18;  RECORD  OF  PROCEEDINGS,  32. 

4.  Reviewing  authority.    See  REVIEWING  AUTHORITY. 

5.  Revising  authority.  See  PRESIDENT  OF  THE  UNITED  STATES;  REVIEWING  AUTHORITY; 

REVISING  AUTHORITY;  SECRETARY  OF  THE  NAVY;  SENIOR  OFFICER  PRESENT. 

6.  Secretary  of  the  Navy.    See  SECRETARY  OF  THE  NAVY. 

7.  Senior  officer  present.    See  SENIOR  OFFICER  PRESENT. 

8.  Withheld— Desertion  case — What  constitutes  conviction.    See  PAY. 

ACTIONS. 

1.  Intentions — The  law  judges  a  man's  intentions  by  his  actions.    C.  M.  O.  29,  1914,  9. 

ACTS. 

1.  Desertion — Acts  of  accused  during  unauthorized  absence  may  create  a  presumption  of 

specific  intent  to  desert.    See  DESERTION,  10,  02. 

2.  Intentions— The  law  judges  a  man's  intentions  by  his  acts.    C.  M.  O.  29, 1914,  9.    See 

also  DESERTIONS,  72. 

3.  Natural  consequences— It  should  be  remembered  that  in  all  well-organized  society 

every  man  of  sound  mind  is  and  must  be  assumed  to  intend  the  natural  and  necessary 
consequences  of  his  own  deliberate  acts.  Without  this  imperative  legal  principle 
the  order  of  civil  society  could  not  be  preserved,  and  the  sanction  of  military  disci- 
pline and  the  efficiency  of  all  military  organizations  would  depend  upon  the  personal 
theories  and  opinions,  however  crude,  of  the  individuals  who  compose  them.  G.  O. 
182,  Apr.  2, 1873.  Seealso  C.  M.  0. 19, 1912,  7. 

ADDITIONAL  CHARGES  AND  SPECIFICATIONS. 

1.  Army— Difference  between  Army  and  Navy — In  applying  to  naval  courts-martial  by 
analogy  decisions  in  cases  tried  by  courts-martial  of  the  Army  care  must  always  be 
taken  to  note  differences  in  the  laws  governing  court-martial  procedure  in  these 
branches  of  the  service.  With  reference  to  naval  courts-martial,  it  will  be  noted 
from  A.  G.  N.  43  that  the  law  plainly  contemplates  the  trial  of  additional  charges  at 
the  same  time,  where  such  additional  charges,  as  in  this  case,  are  preferred  under 
conditions  specified  in  the  statute. 

50756°-17 1 


16  ADDITIONAL   CHARGES    AND    SPECIFICATIONS. 

The  objections  stated  in  Dudley's  Military  Law,  etc.  (par.  127,  p.  66),  and  Win- 
throp's  Military  Law  and  Precedents  (Vol.  1,  Sec.  VII,  p.  225)  do  not  apply  to 
cases  tried  before  naval  courts-martial,  as  the  oath  used  by  naval  courts-martial 
differs  from  that  used  by  the  Army  courts-martial.  The  law  (art.  43,  A.  G.  N.) 
expressly  provides  that  the  accused  shall  be  allowed  a  reasonable  time  to  make  his 
defense  against  additional  charges. 

The  oath  administered  to  members  of  general  courts-martial  in  the  Navy  is  broader 
in  its  terms  than  that  used  in  the  Army,  the  latter  relating  merely  to  "the  matter 
now  before  you,"  while  in  the  Navy  the  oath  relates  to  "the  case  now  depending," 
which  includes  all  charges  and  specifications  which  may  legally  be  preferred  against 
the  accused,  whether  at  the  time  he  is  placed  under  arrest  or  subsequently  at  any 
time  before  his  case  is  disposed  of  by  the  court.  0.  M.  0. 10, 1913,  7-8.  See  also  File 
26251-8539:1,  J.  A.  G.,  Jan.  21,  1914;"  26262-1194,  p.  6. 

2.  Oath — Where  additional  charges  and  specifications  are  preferred  after  arraignment  no 

legal  objection  could  exist  to  swearing  members  again  as  to  the  additional  charges 
and  specifications,  and  as  a  matter  of  precaution  it  might  be  advisable  that  such  pro- 
cedure be  followed.  File  26251-<>822:9. 

3.  Preferred  after  arraignment^-An  accused  was  brought  to  trial  by  general  court- 

martial  (file  26251-6822:9)  by  order  of  the  Secretary  of  the  Navy.  While  the  trial 
was  in  progress  information  reached  the  department  concerning  additional  mis- 
conduct by  the  accused.  An  additional  charge  predicated  upon  that  offense  was 
preferred  against  the  accused  and  forwarded  to  the  judge  advocate  of  the  court,  the 
department 's  order  expressly  stating  that  the  intelligence  of  such  additional  charge 
did  not  reach  the  department  until  after  the  accused  was  put  under  arrest.  Upon 
presentment  thereof  by  the  judge  advocate,  the  court  decided  that  it  was 
without  jurisdiction  in  the  premises  and  the  judge  advocate  was  directed  to  return 
the  additional  charge  to  the  convening  authority.  The  letter  returning  the  addi- 
tional charge  cited  as  the  court's  authority  for  its  action,  Dudley's  Military  Law, 
etc.  (par.  127,  p.  66),  and  Winthrop's  Military  Law  and  Precedents  (Vol.  I,  Sec.  VII, 
p.  225). 

The  department  held  that  the  objections  stated  by  the  court  do  not  apply  to  the 
present  case  tried  before  a  naval  court-martial.  The  law  (art.  43,  A.  G.N.)  expressly 
provides  that  the  accused  shall  be  allowed  a  reasonable  time  to  make  his  defense 
against  additional  charges. 

The  oath  administered  to  members  of  general  courts-martial  in  the  Navy  is 
broader  in  its  terms  than  that  used  in  the  Army,  the  latter  relating  merely  to  "the 
matter  now  before  you,"  while  in  the  Navy  the  oath  relates  to  "the  case  now  depend- 
ing," whi(  h  includes  all  charges  and  specifications  which  may  legally  be  preferred 
against  the  accused,  whether  at  the  time  he  is  placed  under  arrest  or  subsequently 
at  any  time  before  his  case  is  disposed  of  by  the  court. 

The  additional  charge  preferred  against  this  accused  was  expressly  stated  to  be  an 
"  additions  t  charge  "  (or  a  part  of  "the  case  now  depending")  and  not  a  separate  charge 
to  be  tried  in  an  independent  proceeding. 

This  officer  was  dismissed  on  the  original  charges  and  specifications  without  con- 
sidering the  additional  ones.  The  department  thereupon  addressed  a  communica- 
tion to  the  president  of  the  court  with  the  direction  that  the  remarks  be  referred 
to  the  members  and  judge  advocate  of  the  court  for  their  information.  C.  M.  O. 
10, 1913,  7-8.  See  also  C.  M.  O.  7, 1913. 

4.  Same — Original  charges  and  specifications  were  preferred  on  December  1, 1913,  accused 

was  arraigned  on  January  5, 1914,  and  additional  charges  and  specifications,  intelli- 
ligence  of  which  did  not  reach  the  convening  authority  until  January  6,  1914,  were 
preferred  on  January  7, 1914.  C.  M.  O.  27,  1914. 

5.  Same— An  accused  warrant  officer  was  tried  by  general  court-martial  April  16, 1912, 

on  charges  preferred  April  4, 1912,  found  guilty  of  "Absence  from  station  and  duty 
without  leave"  and  "Drunkenness  on  duty,"  and  a  sentence  adjudged.  The 
department  on  April  11,  1912,  preferred  two  additional  charges  with  one  specifica- 
tion under  each  charge.  The  court  tried  the  accused  on  the  two  additional  charges 
and  specifications  in  a  separate  trial,  and  sentenced  the  accused  to  dismissal. 
C.  M.  O.  17, 1912;  G.  C.  M.  Rec.  No.  25187. 

6.  Same — Enlisted  men — Additional  charges  sent  to  court  before  trial  on  original  charges 

and  specifications.    G.  C.  M.  Rec.  No.  31329;  31400;  31402. 

7.  Same — Officer  tried  upon  the  charges  of  "Scandalous  conduct  tending  to  the  destruc- 

tion of  good  morals  and  naval  discipline"  and  "Embezzlement."  and  upon  an 
"additional  charge,"  preferred  after  the  commencement  of  his  trial,  of  "Neglect  of 
duty."  G.  0. 162,  Mar.  25, 1871. 


ADDITIONAL  CHARGES  AND  SPECIFICATIONS.  17 

8.  Preferred  before  arraignment— One  additional  charge  with  two  specifications  there- 

under were  preferred  against  the  accused  before  arraignment.  He  was  arraigned 
upon  the  original  and  the  additional  charges  and  specifications  at  the  same  time. 
(Q.  C.  M.  Rec.  6174.)  C.  M.  O.  56,  1880,  3^5. 

9.  Same — In  the  case  of  an  accused  ensign  additional  charges  and  specifications  were  pre- 

ferred against  the  accused  prior  to  arraignment  and  received  by  him  10  minutes  before 
he  was  brought  to  trial  on  t  he  original  charges  and  specifications.  The  accused  stated 
that  he  was  ready  for  trial  on  the  additional  charges  and  specifications.  Defense 
desired  to  have  the  original  charges  and  specifications  disposed  of  before  being 
arraigned  on  the  additional  ones.  The  accused  was  arraigned  on  the  original  charges 
and  specifications,  the  record  showing  this  entry:  "  Tne  judge  advocate:  If  the 
court  please,  as  I  understand  it,  the  court  permits  the  accused  to  defer  pleading  to 
the  additional  charges  and  specifications  until  some  subsequent  time?  The  court: 
They  may  havetime  for  that.  '  The  trial  then  proceeded  on  the  original  charges  and 
specifications.  The  accused  later  pleaded  to  the  additional  charges  and  specifi- 
cations. Findings  on  all  charges  and  specifications  were  arrived  at  by  court  at 
proper  time.  (G.  C.  M.  Rec.  7771.)  C.  M.  O.  23,  1895. 

10.  Same — In  the  case  of  an  accused  chaplain  charges  and  specifications  were  preferred  by 
the  department  and  transmitted  to  the  general  court-martial  before  which  the 
accused  was  to  be  tried,  by  letter  dated  July  24,  1907.  Thereafter  (July  29, 1907) 
nine  additional  charges  and  specifications  were  preferred  against  the  accused  and 
transmitted  to  the  same  court  by  separate  letter.  At  the  trial,  August  5, 1907,  the 
accused  was  arraigned  at  the  same  time  upon  both  the  original  and  additional 
charges  and  specifications,  which  were  tried  together.  This  procedure  was  in 
accordance  with  the  precedents  of  the  depart  :nent  and  authorities  on  military  law. 
G.  C.  M.  Rec.  No.  16323.  See  also  File  26251-4794,  J.  A.  G.,  June  6.  1911;  C.  M.  O. 
74. 1907. 

ADDITIONAL  NUMBERS. 

1.  Promotion  of— The  practice  of  making  officers  additional  numbers  in  their  grade  is  fol- 

lowed by  Congress  only  where  for  good  and  sufficient  reasons  it  is  desired  that  such 
officers  shall  not  delay  the  promotion  of  others  who  are  their  juniors.  In  other  words. 
the  provision  that  an  officer  shall  be  an  additional  number  in  his  grade  is  not  intended 
for  his  benefit,  but  is  intended  to  facilitate  the  promotion  of  others  below  him  on  the 
list;  and  unless  Congress  uses  language  clearly  indicating  its  intention  that  the  officer 
so  made  an  additional  number  is  to  be  promoted  at  an  earlier  date  than  he  would 
otherwise  have  been  entitled  to  promotion ,  that  is  to  say,  on  the  same  date  as  the  officer 
next  above  him  on  the  listt  the  department  has  held  that  he  should  be  promoted  only 
from  the  date  on  which  h?s  position  would  have  entitled  him  to  promotion  had  he 
not  been  made  an  additional  number.  The  additional-number  officer  is  not  pro- 
moted either  with  the  officer  next  below  him  or  with  the  officer  next  above  him,  out 
is  prompted  precisely  as  he  would  be  if  he  were  not  an  additional  number,  only  his 
promotion  does  not  operate  to  delay  the  promotion  of  junior  officers.  It  can  make 
no  difference  to  the  additional-number  officer  how  many  junior  officers  may  be  pro- 
moted at  the  same  time;  his  promotion  is  in  no  way  delayed  thereby.  File  11130-26, 
Sec.  Navy,  Jan.  8, 1915;  C.  M.  O.  6, 1915, 10.  Seealso  File  11130-23,  Sec.  Navy,  Feb.  25, 
1914;  11130-24,  Feb.  25, 1914;  11130-25,  Mar.  4, 1914;  11130-5,  J.  A.  G.,  Nov.  24, 1909; 
26254-655;  Bu.  Nav.;  File  1511-40,  Sec.  Navy,  Jan.  l,  14, 1911;  BUREAU  CHIEFS,  8. 

2.  Sentence  of  general  court-martial — Additional  numbers  should  be  included  in  count- 

ing the  numbers  which  an  officer  has  been  sentenced  to  be  reduced  by  general  court- 
martial.  File  4865-5,  June  26, 1906. 

ADDITIONAL  PAY.    See  PAY,  7,  8. 

ADDITIONAL  PUNISHMENT. 

1.  Secretary  of  the  Navy — Has  the  authority  to  remit  but  not  to  commute  the  sentence, 
and  therefore  not  to  increase  the  punishment.  While  the  reviewing  authority  may 
remit  any  part  of  the  sentence  imposed  he  can  not  add  to  the  sentence  by  imposing 
an  additional  forfeiture.  C.  M.  O.  17, 1910,  8;  File  25675-9,  10, 11,  Sec.  Navy,  Oct.  28, 
1915.  See  also  COMMUFING  SENTENCES;  SECRETARY  OF  THE  NAVY,  54,  56. 

ADDRESS. 

1.  Desertion— Change  of  address  of  accused  during  unauthorized  absence  without  notice 
to  naval  authorities  may  create  an  inference  of  specific  intent  to  desert.  See 
DESERTION,  111. 


18  ADDRESS. 

2.  Furlough— Duty  of  enlisted  men  on  furlough  to  notify  commanding  officer  of  change  of 

address.    C.  M.  O.  33,  1914,  7. 

3.  Witness  lees — On  May  4, 1909,  the  following  instructions  were  issued : 

"  It  is  directed  that,  in  the  preparation  of  claims  for  witness  fees  for  the  attendance 
of  civilian  witnesses  before  naval  courts-martial,  the  post-oilice  addresses  of  such 
claimants  be  entered  upon  the  certificate  prepared  by  the  judge  advocate  of  the  court; 
and  a  copy  of  the  subpoena  need  not  be  attached  to  the  certificate.  C.  M.  0 .  21, 1909, 3. 

ADEQUATE  SENTENCES.    . 

1.  Clemency  extended — By  court  in  adjudging  an  inadequate  sentence,  department  can 

not.    See  CLEMENCY,  54. 

2.  Commensurate— A  sentence  should  be  adiudged  in  each  case  which  is  commensurate 

with  the  nature  of  the  offense  charged.    C.  W.  O.  28,  1912,  3. 

3.  Congress — "Congress,  as  shown  by  its  legislation  on  the  subject,  has  evidently  not  been 

willing  to  intrust  the  power  of  exercising  clemency  to  courts-martial,  but  has  pre- 
ferred to  repose  such  power  in  the  Secretary  of  the  Navy,  who  is  charged  with  the 
administration  of  the  entire  Navy.  Accordingly,  when  a  naval  court-martial  under- 
takes to  adjudge  a  lenient  sentence  in  a  case  where  it  has  found  the  accused  guilty  of 
a  serious  charge  such  court  is  attempting  to  usurp  a  function  which  Congress  has 
expressly  withheld  from  it  and  has  delegated  to  higher  authority."  C.  M.  O.  28, 
1913,  6. 

4.  Courts-martial— It  is  made  by  law  the  duty  of  courts-martial,  in  all  cases  of  conviction, 

to  adjudge  a  punishment  adequate  to  the  nature  and  degree  of  the  offense  committed. 
If  mitigating  circumstances  have  appeared  during  the  trial,  which  could  not  be 
taken  into  consideration  in  determining  the  degree  of  guilt  found  by  the  verdict,  the 
court  may  avail  itself  of  such  circumstances  as  adequate  grounds  for  recommending 
the  prisoner  to  clemency.  (R-811.) 

5.  Same — The  law  does  not  vest  in  courts-martial  the  pardoning  power,  nor  the  right  to  ad- 

judgenominal  punishments  equivalenttoapardon.  The  power  to  remit  or  mitigate 
is  expressly  vested  in  the  President  of  the  United  States  or  the  officer  authorized 
to  convene  the  court.  The  exercise  of  this  power  by  a  court-martial  is  thereforeillegal. 
(R-808.)  C.  M.  O.  42,  1892.  Seealso  C.  M.  O.  22,  1884,  2;  30,  1885,  3;  35,  1892, 11;  51, 
1893,  2;  9,  1897,  9;  89,  1897;  107,  1X97;  132, 1897,  2;  12,  1900;  67,  1902. 

6.  Same — The  law  enjoins  upon  courts-martial  "in  all  cases  of  conviction  to  adjudge  a 

punishment  adequate  to  the  character  and  nature  of  the  offense  committed."  It 
leaves  it  discretionary  with  a  court-martial  "to  recommend  the  person  convicted  to 
clemency;  this  clemency,  however,  is  to  be  exercised  not  by  the  court,  but  by  the 
revising  power  or  the  President  of  the  United  States,  who  are  expressly  clothed  with 
the  power  to  mitigate  or  remit  punishment. 

"In  all  these  provisions  the  law  is  clear,  precise,  and  free  from  ambiguity." 
It  may  be  that  the  court,  or  members  of  it,  deemed  the  law  under  which  the 
accused  was  arraigned  one  of  a  harsh  character;  but  even  admitting  that  it  be  so,  it 
is  still  law,  and  they  were  bound  by  a  solemn  obligation  to  administer  it  as  it  stands, 
and  not  to  modify  it  so  that  it  might  accord  with  their  own  notions  of  justice.  They 
had  no  more  authority  to  do  so  than  to  repeal  the  law.  O.  O.  68,  Dec.  6,  1865. 

7.  Same — "Courts-martial  are  required  by  law  (Art.  51,  A.  G.  N.)  to  impose  an  adequate 

sentence,  the  members  of  the  court  as  individuals  being  permitted  to  recommend  the 
accused  to  the  clemency  if,  in  their  opinion,  extenuating  circumstances  exist  and 
warrant  such  recommendation."  C.  M.  O.  4,  1913,  53.  See  also  C.  M.  O.  67,  1902; 
28,  1913,  5;  37,  1914. 

8.  Same — "The  sentence  of  the  court  in  this  instance  is  considered  by  the  department  to 

be  so  light  as  barely  to  comply  with  that  provision  of  the  law  requiring  courts- 
martial  to  adjudge  punishments  adequate  to  the  offense  committed."  C.  M.  O.  20, 
1909, 1. 

9.  Same — "The  law  makes  it  the  duty  of  courts-martial  in  all  cases  of  conviction  to  adjudge 

punishment  adequate  to  the  nature  of  the  offense."    C.  M.  O.  49,  1910, 12. 

10.  Same— In  one  case  the  department  stated  in  part  as  follows:  The  sentence  of  the  court 

"can  hardly  be  regarded  as  a  compliance  with  the  statutory  requirement  that 
courts-martial  in  all  cases  of  conviction  adjudge  an  adequate  sentence,  and  the 
department  is  forced  to  conclude  that  the  court  in  adjudging  such  a  lenient  sen- 
tence has  encroached  upon  the  prerogatives  of  the  Secretary  of  the  Navy,  by  exer- 
cising clemency,  as  this  power  is  vested  by  law  not  in  courts"  but  in  the  convening 
authority.  C.  M.  0. 1, 1914,  8. 


ADEQUATE  SENTENCES.  19 

11.  Same — "The  convening  authority  is  entirely  unable  to  understand  the  mental  atti- 

tude of  an  olficer  who.  as  a  member  of  a  court-martial  that  has  convicted  another 
officer  of  deliberate  falsehood,  could  vote  to  award  such  a  ludicrously  inadequate 
punishment,  thus  forcing  his  brother  officers  and  himself  to  continue  to  associate 
with  an  officer  who  has  been  proven  guilty  of  deliberately  and  knowingly  making  a 
false  statement  in  writing  in  'an  official  report  to  the  commander  in  chief."  C.  M.  O. 
10, 1908,  5-6. 

12.  Same — The  convening  authority  (fleet)  stated  that  he  approved  the  sentence  "against 

my  conviction  that  it  is  entirely  inadequate  to  the  nature  of  the  offenses,  for  the 
reason"  that  the  accused  would  otherwise  go  unpunished.  C.  M.  O.  30,  1885,  3. 
See  also  C.  M.  O.  22,  1884,  2. 

13.  Same^Where  a  general  court-martial  adjudged  an  inadequate  sentence,  the  con- 

vening authority  (fleet)  remarked  that  "the. court  has  shown  by  its  sentence  that 
at  least  a  majority  of  its  members  are  disposed  to  trifle  with  the  authority  which 
•  the  people  of  the  United  States,  through  their  Representatives  in  Congress,  have 
confided  to  their  naval  officers."  The  department  added:  "While  the  commis- 
sioned officers  of  the  court  hold  in  such  light  estimation  the  discipline  of  the  Navy, 
and  have  such  mild  ideas  as  to  the  gravity  of  offenses  committed  against  its  laws, 
the  subordinates  in  all  degrees  can  not  be  expected  to  consider  them  more  seriously." 
C.  M.  O.  57,  1895,  2-3;  58,  1895,  2-3.  See  also  C.  M.  6.  36,  1905,  3;  10, 1912,  8;  14, 
1913,  5;  22, 1913,  5;  CRITICISM  OF  COURTS-MARTIAL,  11,  35. 

14.  Same — Where  the  sentence  was  considered  inadequate  the  department  stated:  "The 

department  considered  the  sentence  awarded  by  the  court  in  this  case  entirely 
too  light  and  inadequate  for  the  gravity  of  the  offense  committed  and  directed 
the  convening  authority  to  so  inform  the  president  and  members."  C.  M.  O.  6. 
1912,  2. 

15.  Same— A  sentence  was  disapproved   by  the  Secretary  of  the  Navy  as  inadequate, 

the  Secretary  saying:  "Yet  the  public  is  to  be  informed  that  a  court  of  officers  of 
the  Navy  consider  this  capital  offense,  attended  by  no  circumstances  of  mitigation, 
sufficiently  punished  by  suspension  from  duty  for  six  months  without  pay,  and 
with  pay  for  the  same  period,  the  latter  being  equivalent  to  leave  of  absence  for 
six  months.  The  department  declines  to  outrage  public  opinion  and  its  own  sense 
of  justice,  or  to  mislead  the  younger  officers  of  the  Navy,  by  approving  a  sentence 
so  glaringly  inadequate.  G.  O.  58,  June  29,  1865.  See  also  File  7719-03. 
16  Same — The  members  of  any  naval  court-martial  who  fail  to  adjudge  a  substantial 
punishment  for  the  offense  of  "  Neglect  of  duty "  are  lacking  in  the  appreciation 
of  the  full  requirements  imposed  by  command.  File  26262-2214,  Sec.  Navy,  Mar. 
10, 1915. 

17.  Same— The  convening  authority  (fleet)  stated :  After  a  careful  review  of  the  foregoing 

case ,  the  commander  in  chief  can  not  but  express  his  surprise  that  a  court  composed 
of  responsible  officers  should  adjudge  such  a  wholly  inadequate  sentence  after 
finding  the  accused  [officer]  guilty  of  "neglect  of  duty,"  which  neglect  probably 
resulted  in  serious  damage  to  the  ship.  C.  M.  O.  9.  1913,  3. 

18.  Same — "  The  sentence,  as  stated,  does  not  appear  to  be  adequate  to  the  nature  of  the 

offense,  which  is  a  plain  and  flagrant  violation  of  a  very  salutary  provision  of  law 
with  which  every  officer  is  assumed  to  be  familiar."  C.  M.  O.  7,  1901,  2. 

19.  Same^The  convening  authority  (fleet)  returned  the  record  for  revision  of  the  sentence 

as  in  his  opinion  it  was  inadequate.  In  revision  the  court  revoked  its  sentence  and 
substituted  therefor  another.  The  convening  authority  again  returned,  calling 
attention  to  the  fact  that  the  second  sentence  was  less  than  the  first.  In  revision 
the  court  revoked  its  second  sentence  and  adjudged  a  third  sentence.  The  conven- 
ing authority  noted  that  in  awarding  its  final  sentence  the  court  changed  the  form 
but  not  the  substance  of  its  original  sentence,  and  that,  attention  having  twice  been 
called  to  the  inadequacy  of  the  sentence,  the  court  entirely  failed  to  realize  its  respon- 
sibilities to  the  naval  service,  and  subsequent  to  these  remarks  approved  the  pro- 
ceedings and  findings  and,  in  order  that  the  accused  might  not  entirely  escape  pun- 
ishment, the  sentence.  The  department  concurred  in  the  remarks  of  the  convening 
authority  relative  to  the  inadequacy  of  sentence.  The  record  of  the  accused  (a  chief 
boatswain),  which  was  before  the  court,  shows  that  he  has  been  twice  tried  and 
convicted  for  similar  offenses  involving  drunkenness.  The  department,  therefore, 
feels  that  to  permit  the  accused  to  continue  in  the  service  as  a  commissioned  officer 
is  adverse  to  the  interests  of  justice  and  discipline,  and  that  the  action  of  the  court 
has  resulted  in  a  miscarriage  of  justice.  C.  M.  O.  21, 1916. 


20  ADEQUATE   SENTENCES. 

20.  Same — The  department  approved  the  recommendation  contained  in  the  following 

indorsement  placed  upon  a  general  court-martial  record  by  the  Chief  of  the  Bureau 
of  Navigation:  "  The  oureau  can  not  understand  how  a  court  composed  of  officers 
of  experience  and  judgment  coxild  fail  to  appreciate  the  seriousness  of  this  offense, 
and  it  is  recommended  that  the  president  and  members  of  the  court  be  informed 
that  their  action  has  resulted  in  a  miscarriage  of  justice."  C.  M.  0. 12,  1310,  2. 

21.  Court-martial  orders— Have  common  ted  upon  sentences  being  inadequate.    C.  M.  O. 

29,  1909,  2;  46,  1910, 1;  47,  1910,  7;  49,  1910, 12,  16;  61,  1910,  2;  12,  1910,  2;  11,  1911,  7; 
7,  1912,  3;  8,  1912,  3;  11, 1912,  2;  14, 1912,  2;  1C,  1912,  3;  28, 1912,  3;  37,  1912,  2;  1,  1913, 
4,  7;  4,  1913,  53;  10, 1913,  5;  16, 1913,  3;  20, 1913,  4;  23, 1913,  15;  26,  1913,  1;  28,  1913,  5; 
32,  1913,  2;  36,  1913,  1;  39,  1913, 14;  5,  1914,  7;  45,  1914;  46,  1914;  8,  1915,  2;  14,  1915;  17, 
1915;  23, 1915;  25,  1915;  28,  1915;  43,  1915;  44,  1915;  49, 1915, 12;  4,  1916,  3;  6,  1916,2;  10, 
1916,  1-2;  12, 1916;  19,  1910;  21, 1916;  23,1916,  2;  35, 1916;  40,  1916. 

22.  Disapproval— The  accused  (officer)  was  found  guilty  of  "Neplect  of  duty"  and  sen- 

tenced to  be  publicly  reprimanded  by  the  commander  m  chief,  United  States 
Atlantic  Fleet.  The  record  was  returned  to  the  court  because  the  sentence  was 
inadequate.  The  court  adhered  to  its  former  sentence  and  the  convening  authority 
disapproved  the  sentence  as  inadequate.  C.  M.  O.  46.  1914.  See  also  C.  M.  O.  83, 
1904,  4;  4,  1916,  3. 

23.  Same — The  department  returned  a  record,  ordering  the  court  to  reconvene  for  the 

purpose  of  reconsidering  the  sentence,  which  was,  in  the  opinion  of  the  department, 
"grossly  inadequate  for  the  very  serious  offense  of  which"  the  accused  was  found 
guilty.  The  court  in  revision  adhered  to  its  sentence.  The  court  was  once  more 
directed  to  reconvene  for  the  same  purpose  and  again  adhered  to  its  sentence,  "and 
in  order  that  the  service  at  large  might  not  be  misinformed  as  to  what  the  depart- 
ment considers  as  proper  punishment  for  this  offense,  the  sentence  adjudged  *  *  * 
was  disapproved  as  wholly  inadequate."  C.  M.  O.  10, 1913,  6.  See  also  ADEQUATE 
SENTENCES,  15. 

24.  "Glaringly  inadequate."    See  ADEQUATE  SENTENCES,  15. 

25.  "Grossly  inadequate."    See  ADEQUATE  SENTENCES,  23. 

26.  Law— The  law  (R.  S.  1624;  A.  G.  N.  51)  makes  it  the  duty  of  naval  courts-martial  to 

adjudge  adequate  sentences.    See  ADEQUATE  SENTENCES,  8. 

27.  "Manifestly  and  absurdly  inadequate."    C.  M.  O.  7,  1912,  3. 

28.  "Ludicrously  inadequate."    See  ADEQUATE  SENTENCES,  11. 

29.  Not  necessarily  maximum — "Courts-martial  are  to  bear  in  mind  that  they  do  not 

meet  in  all  cases  to  adjudge  the  maximum  sentence  for  the  offense,  as  laid  down 
in  the  table  of  limitations  of  punishment,  but  to  determine  the  attending  circum- 
stances and  degree  of  wrongdoing  of  the  accused  and  adjudge  a  sentence  accordingly." 
C.  M.  O.  6,  1909,  3. 

30.  Officers— When  an  officer  is  a  member  of  a  naval  court-martial  he  is  assumed  to  know 

that  the  law  makes  it  mandatory  for  him  to  adjudge  an  adequate  sentence.  C.  M.  O. 
107,  1901,  2. 

31.  Usurpation — Of  convening  and  reviewing  authorities'  power.    See  ADEQUATE  SEN- 

TENCES, 10. 

ADJOURNMENT  OF  COURTS-MARTIAL. 

1.  General  courts-martial  —When  the  proceedings  of  any  general  court-martial  have 

commenced,  they  shall  not  be  suspended  or  delayed  on  account  of  the  absence  of  any 
of  the  members,  provided  five  or  more  are  assembled;  but  the  court  is  enjoined  to 
sit  from  day  to  day,  Sundays  excepted,  until  sentence  is  given,  unless  temporarily 
adjourned  by  the  authority  which  convened  it.  (A.  G.  N.  45;  Forms  of  Procedure, 
1910,  p.  17.)  In  view  of  the  above,  though  such  action  would  not  necessarily  invali- 
date the  proceedings,  a  general  court-martial  during  a  trial  should  not  adjourn  over  a 
holiday  or  any  other  day  which  is  not  a  Sunday,  without  such  permission  being 
expressly  granted,  or  unless  the  court  is  expressly  granted  such  authority  in  the 
precept.  (SeeC.  M.  O.  49, 1910,  11;  G.  C.  M.  Hec.  No.  21330;  File 26251-2842.)  C.  M.O. 
51, 1914  4. 

2.  Same— Where  a  general  court-martial  adjourned  from  Tuesday  until  Friday  without 

permission  from  the  convening  authority,  the  department  stated  prior  to  approving 
the  case  that  the  specific  provision  of  A.  G.  N.  45  violated  in  this  instance,  being 
directory  only  and  not  mandatory  and  the  error  committed  one  which  causes  no 
Injury  to  the  accused,  the  irregularity  offers  no  sufficient  grounds  upon  which  to  set 
aside  and  defeat  the  proceedings.  C.  M.  O.  27,  1898,  1-2. 


ADJOURNMENT   OF   COURTS-MARTIAL.  21 

3.  Same— The  court  adjourned  over  from  Friday,  December  31, 1909,  until  Monday,  Janu- 
ary 3,  1910,  without  previously  having  been  authorized  so  to  do  by  the  convening 
authority.  As  it  appears  that  the  provisions  of  A.  G.  N.  45  were  promulgated  pri- 
marily to  prevent  an  accused  being  held  in  confinement  an  unwarrantable  time  while 
awaiting  final  action,  and  as  in  the  case  at  issue  no  injury  appears  to  have  been  done 
him,  in  fact  the  contrary  appears  to  have  been  the  case,  the  adjournment  permitting 
him  to  secure  counsel  which  he  had  not  previously  obtained,  this  irregular  action  on 
the  part  of  the  court  is  an  irregularity  which  did  not  invalidate  the  proceedings. 
C.  M.  O.  49, 1910, 11.  See  also  File  26504-37. 

ADJUTANT  AND  INSPECTOR,  UNITED  STATES  MARINE  CORPS. 

1.  Assistant  adjutant  and  Inspector — Authority  to  administer  oaths.    See  OATHS,  48. 

2.  Indorsement — On  letter  of  adjutant  and  inspector  as  evidence.    C.  M.  O.  47,  1910,  5. 

See  also  INDORSEMENTS,  1;  LETTERS,  4,  5. 

3.  Letter — Ofadjutantandinspectorasevidence.    C.  M.  O.  47, 1910,5.    Seealso LETTERS, 5. 

4.  Oaths — Administering  of  oaths  by.    See  OATHS,  48. 

ADJUTANT  GENERAL  OF  THE  ARMY. 

1.  Indorsement — On  letter  of  adjutant  and  inspector,  U.  S.  M.  C.,  is  not  competent 
evidence  to  prove  previous  convictions.  See  LETTERS,  4. 

ADMINISTRATION. 

1.  Commissions  of  same  date — Numbering  of.    See  COMMISSIONS,  26. 

2.  Commissions — Change  in  date  of.    See  COMMISSIONS,  9-19. 

3.  Comptroller  of  the  Treasury — Department's  policy  has  been  to  disapprove  sub- 

mission of  specific  questions  involving  administrative  matters  under  its  own  juris- 
diction to  Comptroller  of  the  Treasury.  See  COMPTROLLER  OF  THE  TREASURY,  3. 

4.  Promotion,  suspension  from — Administrative  officer  determines  the  manner  the 

loss  of  numbers  shall  be  executed.    C.  M.  O.  42, 1915, 12.    See  also  PROMOTION,  200. 

5.  Res  Judicata— For  a  list  of  cases  wherein  it  was  held  to  be  a  settled  rule  of  adminis- 

trative practice  that  official  acts  of  a  previous  administration  are  to  be  considered  as 
final  by  its  successor  so  far  as  the  executive  is  concerned.  See  File  11130-6,  J.  A.  G., 
Dec.  28, 1909;  COMMISSIONS,  14-10;  RES  JUDICATA. 

6.  Same — The  only  exception  to  the  rule  is  where  the  application  for  review  is  based  upon 

new  facts,  a  new  state  of  law,  or  some  extraordinary  circumstances.  File  11130, 
J.  A.  G.,  Dec.  28,  1909,  p.  5.  Seealso  RES  JUDICATA,  6. 

7.  Resignations,  acceptance  of— The  Secretary  of  the  Navy  is  the  proper  administrative 

person  to  accept  the  resignation  of  an  officer  for  the  President.  C.  M.  O.  42, 1915, 13. 
See  also  RESIGNATIONS,  28. 

8.  Secretary  of  Navy— Charged  with  the  administration  of  the  entire  Navy.    See  ADE- 

QUATE SENTENCES,  3;  SECRETARY  OF  THE  NAVY,  6. 

ADMINISTRATOR.  See  also  LEGAL  REPRESENTATIVES. 

1.  Death  gratuity.    See  DEATH  GRATUITY,  13. 

2.  Officer's  effects — Disposition  of.    See  DISPOSITION  OF  EFFECTS,  5, 6. 

3.  Paymaster— Jurisdiction  of  Court  of  Claims  over  claim  of  paymaster's  administrator. 

C.  M.  O.  39,  1913,  12. 

4.  Private.    See  DISPOSITION  OF  EFFECTS,  2. 

5.  Public.    See  DISPOSITION  OF  EFFECTS,  2. 

6.  Sheriff— Payment  of  reward  for  deserter  to  administrator.    See  REWARDS,  2. 

ADMIRALS. 

1.  Admirals  of  fleets— Pay  of.    See  REAR  ADMIRALS,  2, 3. 

2.  Admiral  of  the  Navy— Retirement  of— Only  upon  application.    See  RETIREMENT  OF 

OFFICERS,  4. 

3.  Rear  admirals— Pay  of  rear  admirals,  lower  nine.    C.  M.  O.  12,  1915,  12-13.    See  also 

REAR  ADMIRALS,  2,  3. 

4.  Same — Retired  rear  admiral — Tried  by  general  court-martial.    C.  M.  O.  41, 1915. 

5.  Title  of— Ancient  title  of  admiral  appertains  to  the  military  and  command  branches  of 

the  naval  service.    See  TITLES,  1. 

ADMISSIONS. 

1.  Accused— Admitted  in  open  court  certain  allegations  in  the  specifications.  C.  M.  0. 30, 
1912, 5;  34, 1913,7;  37,  1915,  2.  See  also  G.  C.  M.  Rec.  No.  28652.  pp.  3, 7;  31925;  32078; 
31904;  C.  M.  O.  9, 1897,  9,  11;  39,  1913,  4;  File  26251-12462;  C.  M.  O.  5,  1917. 

Evidence  is  not  required  to  prove  allegations  in  specifications  which  accused  or 
his  counsel  admit  in  open  court.    File  26251-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  10. 


22  ADMISSIONS. 

2.  Admissions  against  Interest.    See  ADMISSIONS  AGAINST  INTEREST. 

3.  Judge  advocate,  by— The  judge  advocate  may  be  authorized  by  the  convening  author- 

ity to  admit  in  open  court  that  a  person  would  give  certain  testimony  if  he  were  sum- 
moned and  testified  before  the  court.  (File  26251-4119:6,  Sec.  Navy,  Jan.  9,  1911; 
26251-10649:3,  Sec.  Navy,  June  2, 1915;  G.  C.  M.  Rec.  No.  30669.)  The  judge  advocate 
should  not  be  authorized  to  admit  that  the  facts  in  question  are  true,  but  only  that 
the  person,  if  present  as  a  witness,  would  testify  that  they  were  true.  File  26251- 
4119:6,  Sec.  Navy,  Jan.  12,  1911;  C.  M.  O.  49,  1915,  9.  See  Ct.  Inq.  Rec,  4952,  p.  799, 
with  reference  to  similar  admissions  by  judge  advocate  of  a  court  of  inquiry. 

4.  Same— Of  contents  of  efficiency  reports  of  officers.    See  REPORTS  ON  FITNESS,  5. 

ADMISSIONS  AGAINST  INTEREST.     See  ADMISSIONS;    DYING  DECLARATIONS,  1 

(p.  201,  line  55). 

1.  Board  of  investigation — The  statement  made  by  an  accused  before  a  board  of  investi- 
gation, when  such  statement  takes  the  complexion  of  an  admission  against  interest 
or  a  confession,  is  admissible  as  evidence  before  naval  courts-martial.  G.  C.  M.  Rec. 
No.  11279.  See  also  CONFESSIONS,  8. 

ADMONITION.   See  CRITICISM  OF  COURTS-MARTIAL,  22;  JUDGE  ADVOCATE,  6;  MARINE 
EXAMINING  BOARDS,  2;  WORDS  AND  PHRASES. 

ADOPTION. 

1.  Cltzenship  by.    See  CITIZENSHIP,  34. 

ADVANCE  DECISIONS  BY  THE  DEPARTMENT. 

1.  Policy— Of  the  department  outlined.    See  HYPOTHETICAL  QUESTIONS,  1. 

ADVANCES  OR  LOANS  BY  PAYMASTERS. 

1.  Prohibited— Section  1389  R.  S.  provides  that  "it  shall  not  be  lawful  for  any  paymaster, 

passed  assistant  paymaster,  or  assistant  paymaster,  to  advance  or  loan,  under  any 
pretense  whatever,  to  any  officer  in  the  naval  service,  any  sum  of  money,  public  or 
private,  or  any  credit,  or  any  article  of  commodity  whatever."  C.  M.  O.  4, 1913,  9. 
See  also  C.  M.  O.  107,  1901;  17,  1915,  2. 

2.  Trivial  advances.    C.  M.  0. 107, 1901, 2. 

ADVANCES  OF  PAY  TO  OFFICERS. 

1.  Officers— Ordered  to  sea,  etc.    See  FRAUD,  5;  PAY,  9. 

ADVISING. 

1.  Crime.    See  AIDING  AND  ABETTING,  1. 

2.  Desertion.    See  DESERTION,  48,  79,  80. 

3.  Judge  advocate— Should  not  advise  the  accused  to  plead  "guilty."    C.  M.  O.  6, 1909, 3. 

See  also  JUDGE  ADVOCATE,  34,  86. 

4.  Same— Advice  to  court.    See  JUDGE  ADVOCATE,  49-59. 

ADVISORY  STATUTES. 

1.  Directing  mode  of  proceeding — In  general,  statutes  directing  the  mode  of  proceeding 
by  public  officers  are  deemed  advisory,  and  strict  compliance  with  their  detailed 
provisions  is  not  indispensable  to  the  validity  of  the  proceedings  themselves  unless 
a  contrary  intention  can  be  clearly  gathered  from  the  statutes  construed  in  the  light 
of  other  rules  of  interpretation.  C.  M.  O.  27, 1898, 1. 

AFFIDAVITS. 

1.  Admission— Of  an  ex  parte  affidavit  favorable  to  accused  does  not  invalidate  proceed- 

ings, and  is  no  ground  for  clemency  by  the  department;  but  otherwise  if  the  affidavit 
is  against  the  accused.  File  1009-94.  See  also  File  26251-11479,  Sec.  Navy,  Feb.  16, 
1916,  where  department  disapproved  a  finding  on  a  general  court-martial  specification 
because  an  affidavit  unfavorable  to  accused  was  introduced  in  evidence  over  objection 
of  accused.  See  also  C.  M.  O.  48, 1915,  2;  CLEMENCY,  3. 

2.  Certificate— That  affiants  are  known  to  be  reputable  and  creditable  may  be  made  by 

the  person  before  whom  the  path  is  administered.  This  rule  applies  only  to  ordi- 
nary cases  with  respect  to  which  there  is  nothing  to  suggest  the  propriety  of  further 
inquiry.  Additional  evidence  may  be  called  for  as  public  interests  require.  File 
546-97,  J.  A.  G..  Mar.  3, 1897. 

3.  Date  and  place  of  birth  of  an  applicant  for  enlistment — A  recruiting  officer  of  the 

Navy  may  administer  an  oath  to  a  person  not  in  the  naval  service  who  desires  to 
make  an  affidavit  as  to  the  date  and  place  of  birth  of  an  applicant  for  enlistment  in 
the  United  States  Navy.  C.  M.  O.  5, 1916,  7.  See  also  OATHS,  39. 


AFFIDAVITS.  23 

4.  Deposition — An  affidavit  is  "a  statement  or  declaration  reduced  to  writing  and  sworn 

or  affirmed  to  before  some  officer  who  has  authority  to  administer  an  oath  or  affir- 
mation. It  differs  from  a  deposition  in  this,  that  in  the  latter  the  opposite  party 
has  an  opportunity  to  cross-examine  the  witness,  whereas  an  affidavit  is  afways 
taken  ex  parte."  (1  Bouvier,  111.)  C.  M.  O.  48, 1915.  2.  Seealso  DEPOSITIONS,  2. 

5.  Evidence — An  affidavit  is  inadmissible  in  evidence.    Affidavits,  or  statements  of  persons 

not  subjected  to  cross-examination,  are  entirely  incompetent  as  evidence  before 
courts-martial.  Affidavits,  however,  have  sometimes  been  admitted  by  courts- 
martial  in  the  absence  of  objection  by  a  party.  But,  notwithstanding  the  consent 
of  parties,  a  court-martial  could  rarely,  if  ever,  with  safety  receive  evidence  of  this 
character,  which  must,  in  general,  be  too  incomplete  to  serve  as  a  reliable  basis 
either  for  its  own  judgment  or  the  action  of  the  reviewing  authority. 

In  a  case  where  an  affidavit  signed  by  a  witness  for  the  defense  who  had  failed  to 
appear,  was  introduced  and  accepted  by  the  court  as  evidence,  the  department 
stated: 

"  The  Forty-first  Article  of  the  Articles  for  the  Government  of  the  Navy  requires 
that: 'An  oath  or  affirmation  *  *  *  shall  be  administered  to  all  witnesses  before 
any  court-martial,  by  the  president  thereof. '  There  is  no  authority  of  law  for  the 
acceptance  by  naval  courts-martial  of  an  ex  parte  affidavit  as  evidence,  and  the  court 
erred,  therefore,  in  admitting  such  affidavit.  The  introduction  of  an  affidavit  of  this 
character  by  the  prosecution  would  have  been  fatal  to  the  validity  of  the  proceedings1 
but  inasmuch  as  the  matters  contained  in  said  affidavit  were  favorable  to  the  accused, 
its  introduction  by  the  defense  can  not  have  that  effect."  (C.  M.  O.  50, 1893, 6.) 

In  another  case  the  department  held  that  "the  court  erred  in  admitting  as  evidence 
Of"  the  accused's  "  previous  good  character  a  written  statement  purporting  to  be  the 
affidavit  of"  an  officer  "who  had  been  summoned  to  appear  before  the  court  as  a  wit- 
ness and  was  unable,  on  account  of  sickness,  to  so  appear,"  and  quoted  with  approval 
the  above  holding  in  court-martial  order  No.  50, 1893, 6.  (C.  M.  O.  99, 1893, 1.) 

In  court-martial  order  No.  41,  1894,  p.  2,  the  department  quoted  approvingly  the 
above  excerpt  from  court-martial  order  No.  50,  1893.  p.  6,  and  further  stated:  "It 
appears  that  an  affidavit — the  sworn  statement  of  a  physician  regarding  the  effect  of 
i  ntoxicating  liquor  —was  offered  for  the  inspection  of  the  court ,  read  aloud  by  the  judge 
advocate,  and  appended  to  the  record,  and  that,  in  the  argument  for  the  defense,  this 
document  was  referred  to  as  being  hi  evidence.  The  court  erred  in  accepting  such 
affidavit  as  evidence."  C.  M.  O.  48,  1915,  2-3. 

6.  Parents  of  enlisted  man — To  show  son  under  age  when  enlisting.   C.  M.  0. 6, 1915, 14. 

7.  Statement  of  accused — In  court-martial  order  No.  21, 1910,  p.  12,  the  department  held 

that  an  affidavit  should  not  be  included  as  part  of  the  statement  of  the  accused.  In 
that  case  "  the  j  udge  advocate  read  for  the  accused  an  affidavit  as  part  of  the  statement 
of  the  accused  "  which  was  appended  to  the  record.  "  By  such  a  procedure  the  state- 
ment of  the  accused  is  made  a  vehicle  of  evidence  hi  that  it  is  made  to  embrace  a  docu- 
ment which,  even  though  sworn  to,  is  nothing  more  than  an  ei  parte  statement,  and 
not  even  a  deposition,  and  as  such  is  incompetent  as  evidence,  and  furthermore  inad- 
missible as  a  part  of  the  statement  of  the  accused."  (See  also  C.  M.  O.22, 1896,  pp.  1-2; 
132, 1897,  p.  2.)  C.  M.  O.  48, 1915,  3.  See  also  STATEMENT  OF  ACCUSED,  38. 

AFFIRMATION. 

1.  Witnesses— May  affirm  instead  of  taking  the  oath.    See  DEPOSITIONS,  5;  OATHS,  20. 

AFFRAY. 

1.  Witnesses  of — Excited  witnesses  of  a  riot  or  furious  affray  are  not  likely  to  comprehend 
and  remember  accurately  the  movements  of  the  various  persons  actively  engaged. 
C.  M.  O.  7, 1911, 8.    See  also  EVIDENCE,  128. 
AGE. 

1.  Age  of  appointment — "More  than  26  years  of  age"  construed.    See  ASSISTANT  PAY- 

MASTERS, 3. 

2.  Appointment  assistant  paymasters.   See  ASSISTANT  PAYMASTERS,  3. 

3.  Clemency— Because  of  youth.    See  CLEMENCY,  67-71;  YOUTH. 

4.  Date  of  birth — Upon  the  furnishing  of  proper  evidence  the  department  will  authorize 

the  Bureau  of  Navigation  to  change  upon  the  records  the  date  of  birth  of  an  officer. 
File  8912-02. 

5.  Fraudulent  enlistment — By  misrepresenting  age.    See  FRAUDULENT  ENLISTMENT, 

57-60. 

6.  Midshipmen — Age  limit  for  candidates  to  Naval  Academy.    See  MIDSHIPMEN,  3-6. 


24  AGE. 

7.  Misrepresented — Fraudulent  enlistment  by  misrepresenting  age.    See  FRAUDULENT 

ENLISTMENT,  57-60. 

8.  Retirement  for  age.   See  RETIREMENT  OF  OFFICERS,  4-9. 

AGGRAVATING  CIRCUMSTANCES. 

1.  Absence  unauthorized— Combined  with.    See  ABSENCE  FROM  STATION  AND  DUTY 

WITHOUT  LEAVE,  12. 

2.  Assault— Of  a  civilian  by  a  naval  officer  after  "considerable  provocation."    C.  M.  O.  53, 

1910,  2;  54, 1910,  2. 

3.  Cigarettes — Smoking  of  cigarettes  by  officer  of  the  deck  is  an  aggravation  for  other 

offenses  with  which  he  might  be  charged.  C.  M.  O.  25, 1909,  2.  See  also  OFFICER  OF 
THE  DECK,  3.  , 

4.  Drunkenness— Voluntary  drunkenness  is  never  an  excuse  for  an  offense  such  as  unau- 

thorized absence,  but  in  many  cases  is  an  aggravation.  See  ABSENCE  FROM  STATION 
AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  9, 10;  DRUNKENNESS,  l. 

5.  Offenses — Misconduct  of  an  officer  on  duty  at  the  Naval  Academy  is  aggravated  by  the 

fact  that  he  is  on  duty  at  the  Naval  Academy.    C.  M.  0. 14, 1915. 

"AID  OR  EXECUTIVE." 

1.  Executive  officer— At  one  time  called  the  "Aid"  of  the  commanding  officer.   See 
EXECUTIVE  OFFICER,  1. 

AIDS. 

1.  Additional  pay.    See  PAY,  7,  8. 

AIDS  TO  NAVIGATION.    See  NAVIGATION. 

AIDING  AND  ABETTING. 

1.  Assault  and  battery—"  All  persons  who  are  present  at  the  commission  of  an  assault  and 

battery,  aiding,  encouraging,  or  inciting  the  principal  participants  by  words,  gestures, 
looks,  or  signs,  or  who,  in  any  way,  countenance  or  approve  the  assault,  are  hi  law 
deemed  to  be  principals,  and  a  blow  by  one  is  a  blow  by  each  and  all."  (2  A  and  E 
Ency.  975;  U.  S.  v.  Eicketts,  1  Cranch,  164.)  C.  M.  O.  55,  1910,  6.  See  also  File 
26251-4729:34. 

2.  Same — An  accused  was  charged  with  "Assaulting  and  striking  his  superior  officer  while 

in  the  execution  of  the  duties  of  his  office,"  the  specification  alleging  that  he  did 
assault  and  strike  said  superior  officer.  The  court  found  this  specification  proved, 
except  the  words  "and  strike,"  thus  finding  the  accused  guilty  of  the  assault,  out  not 
guilty  of  the  striking.  The  evidence  conclusively  showed  that  the  accused  was 
present  and  took  part  in  a  general  assault  by  several  persons  on  the  person  assaulted. 
As  the  accused  was  in  the  general  mix-up  which  resulted  in  the  beating  of  the  person 
assaulted  it  was  held  by  the  department  that,  from  the  evidence,  the  accused  being 
guilty  of  assault,  was  also  guilty  of  "striking"  under  the  rule  that  one  who  is  present 
and  aids  and  abets,  assists,  or  encourages  is  guilty  as  a  principal.  C.  M.  0. 55, 1910, 5-6. 

3.  Desertion.    See  DESERTION,  12. 

4.  Embezzlement— Accused  "did  then  and  there  aid  and  abet."    C.  M.  O.  29, 1911,  3,  5; 

30, 1911, 1. 

5.  Theft— Should  be  charged  as  a  principal — "  Where  two  or  more  persons  act  together  in  a 

larceny,  each  of  them  doing  one  part  of  the  whole  act,  they  are  joint  principals  in  the 
crime."  (25  Cyc.  56.)  Thus,  "where  one  party  brings  the  property  stolen  to  a  certain 
place,  where  his  confederate  takes  it  and  makes  off  with  it,  since  the  whole  constitutes 
one  transaction  in  which  both  take  a  part,  both  are  guilty  of  larceny  as  principals." 
(25  Cyc.  56.)  C.  M.  O.  8, 1913,  3-4.  See  also  File  26251-4729  : 34. 

6.  Same — If  the  facts  indicate  that  a  person  aided  and  abetted  a  theft  or  larceny  he  should 

be  tried  under  the  charge  of  "Theft,"  not  "Aiding  and  abetting  larceny  (or  theft) 
in  violation  of  clause  sixteen  of  article  8  of  Articles  for  the  Government  of  the 
Navy."  C.  M.  O.  8,  1913,  3-4.  See  also  File  26251-4729  : 34. 

7.  Sodomy.    File  26251-4729 : 34.    See  also  SODOMY. 

AIDING  IN  VIOLATION  OF  LIQUOR  LAWS. 

1.  Guam,  of.    See  JURISDICTION,  33. 

AIR   SERVICE.   Sec  File  28687-9;  AVIATION;  NAVAL  MILITIA,  1. 
AIRCRAFT.    See  File  28687-9. 


ALLOTMENTS.  25 

ALABAMA  CLAIMS. 

1.  Laws  relating  to— 18  Stat.,  245;   19  Stat.,  1,  3;  22  Stat.,  98;  23  Stat.,  34;  24  Stat.,  77. 
See  Files  1122-97  and  Notes. 

ALASKA. 

1.  Executive  order— Reserving  certain  islands  for  naval  purposes.    Signed  Decembers, 

1903,  and  filed  in  Bureau  of  Yards  and  Docks.    See  File  10329-03. 

2.  Juneau— Correspondence  and  history  of  naval  reservation  in  Juneau,  Alaska.    See  Files 

of  J.  A.  G.  for  1883  and  1897.    See  also  File  6219-04. 

ALCOHOL.    See  C.  M.  O.  42, 1909, 12, 14;  24, 1914,  21;  42, 1915,  3.    See  also  DRUNKENNESS. 

ALCOHOLISM.    See  DRUNKENNESS. 

1.  Judge  advocate— Of  a  general  court-martial  tried  by  general  court-martial— For  being 

incapacitated  for  the  proper  performance  of  his  duty  in  consequence  of  the  excessive 
use  of  intoxicating  liquor,  and  was  thereby  in  such  condition  as  to  necessitate  his  being 
placed  on  the  sick  list  for  "alcoholism."  C.  M.  O.  104, 1896,  1. 

2.  Officer— Under  treatment  for  '-alcoholism."    C.  M.  O.  22,  1884,  3. 

3.  Petty  officer— A  petty  officer  who  renders  himself  unfit  for  duty  through  alcoholism 

is  not  to  b3  trusted.    See  PETTY  OFFICERS,  1. 

4.  "  Pronounced  chronic  alcoholism."    File  5925-03. 

5.  Treatment  for— An  enlisted  man  requested  remission  of  sentence  in  order  that  he  might. 

take  course  of  treatment  for  alcoholism.    File  262.7-3467,  July,  1916. 

ALIAS. 

1.  Desertion— Used  in  specification  under  charge  of  "desertion."    C.  M.  O.  8, 1888. 

2.  Findings— Alias  of  accused  should  be  included.    C.  M.  O.  9, 1916,  5;  G.  C.  M.  Rec.  31812. 

3.  Fraudulent  enlistment— Used  in  cases  of.    See  C.  M.  O.  25,  1914,  6;  29,  1914,  4,  7. 

4.  Sentence— Alias  of  accused  should  be  included.  C.  M.  O.  9, 1916, 5;  G.  C.  M.  Rec .  31812 

ALIENS.    See  also  CITIZENSHIP,  34. 

1.  Citizenship  of— Requirements  for.    See  CITIZENSHIP,  34. 

2.  Discouraging  retention  of,  In  naval  service — An  alien  was  sentenced  to  confinement, 

extra  police  duties,  loss  of  pay  and  allowances,  and  dishonorable  discharge.  The  de- 
partment approved  the  sentence,  but  pursuant  to  the  department's  general  policy  of 
discouraging  the  retention  of  aliens  in  the  naval  service,  so  much  of  the  sentence  as 
provided  for  confinement,  with  corresponding  extra  police  duties  and  loss  of  pay  and 
allowances,  was  remitted,  and  the  accused  was  discharged  from  the  service  in  accord- 
ance with  the  remaining  terms  of  the  sentence.  C.  M.  O.  181,  1902,  2. 

3.  Enlistments  of,  not  permitted — Aliens  are  not  permitted  to  be  enlisted.    See  Depart- 

ment Circular  of  Sept.  1, 1908;  CITIZENSHIP,  12. 

4.  Enlistment  papers— Entries  on  enlistment  papers.    See  SERVICE  RECORDS. 

5.  Foreigners  on  warships — Representatives  of  a  foreign  Government  can  not  be  admitted 

to  service  on  board  American  warships  for  a  term  of  two  years,  without  special  author- 
ity of  Coneress.  File  6273,  J.  A.  G.,  Dec.  17,  1906. 

6.  Fraudulent  enlistment— Effect  of.    G.  C.  M.  Rec.  No.  24710.    See  also  FRAUDULENT 

ENLISTMENT,  2. 

7.  Guam — Jurisdiction  to  naturalize  aliens  as  citizens  of  the  United  States  is  not  possessed 

by  any  court  m  Guam.    File  26252-90,  J.  A.  G.,  Feb.  27, 1914. 

8.  Midshipmen.    See  MIDSHIPMEN,  8. 

9.  Naturalization  of.    See  CITIZENSHIP. 

10.  Navy  yards— Employment  of  aliens  in  navy  yards— Recommended  that  rule  be  sus- 

pended in  the  case  of  an  alien  who  was  adopted  by  American  parents,  and  in  whose 
case  the  question  of  citizenship  was  raised.  (See  Navy  yard  Order  No.  26,  Revised 
Dec.  2S,  1905;  Ffle  3194-3.  Mar.  31,  1905.)  File .3194-1,  Oct.  17,  1906. 

11.  Requirements — For  naturalization  of.    See  CITIZENSHIP,  34. 

12.  Serving  on  vessels  of  the  U.  S.  Navy— No  law  governing,  but  growing  tendency  to 

decline  such  requests.  Settled  that  no  foreign  officers  are  allowed  to  attend  the 
course  at  the  Naval  War  College.  File  986S-246,  J.  A.  G.,  March  29, 1912.  See  also 
CITIZENSHIP,  12. 

ALLOTMENTS. 

1.  Erroneously  canceled— May  be  continued.    File  8528-431,  J.  A.  G.,  Nov.  10, 1915. 

2.  Forgery— Of  indorsement  on  an  allotment  check.    File  27381-25,  J.  A.  G.,  June  3, 1916. 


26  ALLOTMENTS. 

3.  Government  Hospital  for  the  Insane— A  chief  carpenter  confined  in  the  Government 

Hospital  for  the  Insane  is  not  authorized  by  law  or  regulations  to  register  an  allotment, 
even  though  mentally  competent,  for  the  reason  that  he  is  ashore  within  the  United 
States.  (Nayy  Regulations,  1909,  R-1094.)  The  wife  of  such  an  officer  desiring  to 
secure  a  portion  of  his  pay  should  have  a  guardian  or  committee  appointed  to  take 
charge  of  his  affairs.  File  8528-327:1.  See  also  File  8528-111;  Navy  Regulations,  1913, 
R-4472. 

4.  Same— Where  an  enlisted  man  of  the  naval  service  is  a  patient  at  the  Government  Hos- 

pital for  the  Insane  and  it  has  been  certified  by  the  naval  medical  o nicer  at,  and  the 
superintendent  of,  the  said  hospital  that  he  is  mentally  competent  to  receive  and 
dispose_  of  his  pay,  he  is  legally  competent  to  make  an  allotment  or  assignment  of 
wages  in  accordance  with  Navy  Regulations,  1913,  R-4471  and  R-4472.  (See  also 
C.  M.  O. 22, 1915,  p.  8.)  File  10060-67,  J.  A.  G.,  Aug.  18, 1915;  C.  M.  O-.  29. 1915, 5.  See 
also  File  852S-340;  1802-04;  8528-399,  Oct.  29, 1913;  ASSIGNMENT  OP  WAGES. 

5.  Infants — In  view  of  the  probable  inconvenience  to  the  accounting  officers  and  the  diffi- 

culties an  infant  would  be  subjected  to  in  cashing  chocks  should  an  allotment  be  made 
to  him,  an  allotment  should  not  be  made  to  an  infant  but  should  be  made  to  the  guard- 
ian of  the  infant  for  the  benefit  of  the  infant.  File  8528-425,  Sec.  Navy,  July  7, 1915; 
C.  M.  O.  27,  1915,  6. 

6.  Loss  of  pay  remitted— On  condition  that  the  accused  allot  all  pay,  except  necessary 

prison  expenses,  transportation,  and  gratuity  to  be  paid  on  discharge,  etc.  C.  M.  O. 
28,  1909, 1;  37, 1909,  1;  10,  1913,  6. 

7.  Same — Allotments  by  persons  convicted  of  fraudulent  enlistment  and  desertion — Loss 

of  pay  may  be  remitted  by  the  Secretary  of  the  Navy,  to  allow  allotment  to  families, 
etc.  File  26254-279.  See  also  File  26262-811:3;  CLEMENCY,  39,  53;  PAY,  23. 

8.  Minor.   See  ALLOTMENTS,  5. 

9.  Naval  Instructions,  1913,1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

ALLOWANCES. 

1.  Confinement  of  marine  reduced — Convening  authority  when  reducing  period  of 

confinement  of  a  marine  should  make  a  corresponding  reduction  in  the  forfeiture 
of  pay  and  allowances  adjudged.  A  failure  to  do  so  is  irregular,  for  if  the  sentence 
was  carried  out  as  thus  mitigated,  the  accused  would  lose  all  pay  and  allowances 
during  confinement,  except  $3  a  month  for  prison  expenses,  and  all  pay  and  allow- 
ances throughout  the  balance  of  his  enlistment.  C.  M.  O.  49,  1910, 11.  See  also  CON- 
FINEMENT, 34. 

2.  Detentloners — Status  of,  as  to  clothing  allowances,  etc.    See  DETENTIONERS. 

3.  Dishonorable  discharge  adjudged  marines — If  the  sentence  of  a  marine  includes 

confinement  with  corresponding  hard  labor,  forfeiture  of  pay,  and  dishonorable 
discharge,  loss  of  allowances  should  also  be  adjudged  in  accordance  with  Navy  Regu- 
lations, 1913,  816(5);  R-817  (1).  C.  M.  O.  7,  1911,  4;  2, 1912,  4. 

4.  Same — Remitted— If  convening  authority  remits  dishonorable  discharge  in  marine's 

sentence,  he  should  also  remit  forfeiture  of  allowances.  Where  convening  authority 
neglected  to  do  so  the  department  remitted  the  forfeiture  of  allowances.  C.  M.  O. 
7,1911,4. 

5.  Fraudulent  enlistment— Receipt  of  either  pay  or  allowances  by  a  person  not  in  the 

naval  service  when  fraudulently  enlisting  completes  the  offense  of  fraudulent  en- 
listment and  proof  of  receipt  of  either  under  such  enlistment  will  support  a  rinding 
of  guilty  of  that  offense.  See  FRAUDULENT  ENLISTMENT,  4,  50. 

6.  Government  Hospital  for  the  Insane— Allowances  for  patients  and  prisoners  at. 

See  GOVERNMENT  HOSPITAL  FOR  THE  INSANF,  2. 

7.  Limitation  to  period  of  forfeiture.    See  PAY,  29. 

8.  Marines— Only,  should  be  sentenced  to  forfeiture  of  allowances  in  general  court-martial 

sentences.    C.  M.  O.  37, 1909,  3;  42, 1909,  6, 11;  55, 1910,  7,  8;  6, 1913,  3. 

9.  Same— Should  not  be  sentenced  to  forfeiture  of  allowances  unless  dishonorable  dis- 

charge is  also  adjudged.    See  ALLOWANCES,  10. 

10.  Same — Not  sentenced  to  dishonorable  discharge  should  be  sentenced  to  forfeiture 

of  pay  only  (not  allowances)  during  confinement.  C.  M.  O.  42,  1909,  3;  14,  1910,  7; 
15,  1910,  6;  17, 1910,  5;  14, 1913,  3. 

11.  Midshipmen.    See  MIDSHIPMEN,  62. 

12.  Mounted  marine  officers— Marine  officer  whose  duty  requires  him  to  be  mounted, 

is  entitled  to  forage,  etc.    File  26254-306:2.    See  also  PAY,  67. 

13.  Pay— "Allowances"    and  "Pay"  distinguished — Additional  pay    of   enlisted    men 

defined.    See  File  26254-113. 

14.  Waived— Allowances  may  be  waived  by  enlisted  men.    File  13673-1442,  J.  A.  G.,  Nov. 

22, 1911,  p.  12.    See  also  ESTOPPEL,  8. 


APPEALS.  27 

ALOUD. 

1.  Beading  documents— The  record  of  proceedings  should  not  state  that  "the  judge 
advocate  read  aloud"  documents,  for  Forms  of  Procedure,  1910,  p.  18,  provides 
that  when  the  record  states  that  a  paper,  document,  or  testimony  was  read,  it  is 
understood  that  it  was  read  aloud.  C.  M.  0. 12, 1911,  3. 

ALTERATIONS.    See  also  AMENDMENTS;  CORRECTIONS. 

1.  Finding— Shall  be  free  from  all  alterations.    See  FINDINGS,  7. 

2.  Navy  Regulations — Necessity  of  President's  express  approval.    See  REGULATIONS, 

NAVY,  16-19. 

3.  Sentence — Sentences  shall  be  free  from  all  alterations.    See  SENTENCES,  10. 

AMBIGUITY. 

1.  Sentences— Should  not  be  ambiguous.  See  DISHONORABLE  DISCHARGE,  3;  SEN- 
TENCES, 11. 

AMENDMENTS.    See  also  ALTERATIONS:  CORRECTIONS. 

1.  Charges  and  specifications.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

2.  Constitution  of  the  United  States.    See  CONSTITUTION  OF  THE  UNITED  STATES,  1-2. 

3.  Record  of  proceedings— No  changes  are  to  be  made  in  the  original  record  of  proceed- 

ings in  revision.    See  CORRECTIONS,  4;  RECORD  OF  PROCEEDINGS,  26, 97;  REVISION,  30. 

4.  Same— Where  record  of  proceedings  correctly  reports  the  proceedings  which  actually 

occurred,  it  can  not  properly  be  "corrected  "  so  as  to  record  a  different  state  of  facts. 
See  CORRECTIONS,  5. 

•AMERICAN  BLUEJACKET."    See  C.  M.  O.  7,  1911,  9. 
AMERICAN  INDIAN.    See  INDIANS. 

AMPUTATION. 

1.  Arm — Chief  gunner  continued  on  active  list  for  shore  duty  only.  File  26253-473,  Sec. 
Navy,  May  22,  1916.  See  also  File  20200-950,  Sec.  Navy,  July  29,  1910;  9346-08, 
Sec.  Navy,  Feb.  14,  1908. 

ANESTHETICS. 

1.  Death  of  naval  patient— While  under  cocaine.    C.  M.  0. 10, 1915, 8. 

ANNUITY. 

1.  Oath — Powers  of  commanding  officers.    See  OATHS,  38. 

ANTEDATING. 

1.  Commissions.    See  COMMISSIONS,  3 ,  4. 

2.  Enlistments.    See  ENLISTMENTS,  2. 

3.  Sentence — Whereas  it  is  within  the  province  of  the  convening  authority  to  mitigate 

sentences  of  general  courts-martial  convened  by  him,  and  he  may  in  such  cases,  by 
express  terms,  reduce  the  period  of  confinement  adjudged,  his  action  in  making 
confinement  date  from  a  previous  day  would  be  irregular  and  contrary  to  the  pro- 
visions of  Navy  Regulations.  C.  M.  O.  49,  1910,  15.  See  also  C.  M.  O.  27, 1887, 16; 
27, 1911,  6;  21,  1912,  4;  21,  1914,  4;  CONFINEMENT,  1,  9. 

ANTIMILITARY  SOCIETIES. 

1.  Laws  relating  to— There  is  no  Federal  law  which  would  necessarily  be  violated  in  time 
of  peace  by  an  organization  which  teaches  "young  men  to  refuse  to  do  military  serv- 
ice '  and  "that  no  one  should  volunteer  to  serve."  File  15183-65,  Sec.  Navy,  Apr. 
10, 1916. 

APOLOGY. 

1.  Does  riot  cure  an  offense — "It  is  not  sufficient  for  any  person  who,  through  careless- 
ness and  thoughtlessness  of  consequences,  injures  another,  perhaps  for  life,  to  say  to 
the  injured  person.  'I  am  sorry,  I  did  not  intend  to  hurt  you.'  and  then  drive  off  and 
make  no  further  effort  to  care  for  the  victim  or  heal  the  wounds."  C.  M.  0. 18, 1910, 2. 
See  also  C.  M.  O.  31, 1881,  3;  OFFICERS,  101. 

APPEALS. 

1.  Comptroller  of  the  Treasury.    See  COMPTROLLER  OF  THE  TREASURY. 

2.  Congress,  to — Death  gratuity — Where  deceased  left  no  widow  or  children,  and 

mother  has  not  been  "previously  designated,"  her  only  redress  "lies  in  an  appeal 
to  Congress."  File  26543-137,  Sec.  Navy,  Nov.  20,  1915;  C.  M.  O.  42,  1915,  9-10. 

3.  Same— Where  officer  believes  his  date  of  commission  is  erroneous.    See  COMMISSIONS,  14. 


28  APPEALS. 

4.  Counsel  ol  accused  to  department — Counsel  (marine  officer)  for  accused  (officer) 

appealed  to  Secretary  of  the  Navy  to  have  findings  and  sentence  set  aside  on 
grounds  that  "his  trial  was  not  a  public  trial  as  required  by  law,"  the  judge  advocate 
having  been  present  during  closed  court — Department  declined  to  set  aside.  C.  M.  O. 
6, 1915.  6.  See  also  File  8464-03;  670-97.  See  also  APPEALS,  10. 

Civilian  counsel  for  the  accused  (enlisted  man)  appealed  to  the  department  but 
bis  appeal  was  not  granted.  C.  M.  O.  20,  1915.  6. 

Counsel  for  accused  appealed  on  grounds  that  accused  "did  not  have  a  fair  trial " 
in  that  the  court  sustained  objections  to  certain  questions.  File  262(32-2044:1. 

5.  Death  gratuity— "Appeal  to  Congress."    See  APPEALS,  2. 

Appeal  to  Secretary  of  the  Navy  by  beneficiary  from  decision  of  Paymaster 
General.  See  DEATH  GRATUITY,  4,  23. 

6.  Deck  court — Testimony  taken  in  deck-court  proceedings  forwarded  to  department  only 

in  case  of  appeal.    See  DECK  COURTS,  1,  2. 

7.  Same-^-Accused  may  appeal  from  a  deck-court  sentence  in  accordance  with  the  pro- 

visions of  section  6  of  the  act  of  February  16, 1909  (35  Stat.,  621)  (Navy  Regulations, 
1913,  R-516).  See  DECK  COURTS,  1,  2,58;  File  27217-1752,  Sec.  Navy,  Sept.  23, 1915, 
for  an  actual  appeal  denied. 

8.  Habeas  corpus — should  the  civil  court  order  the  discharge  of  the  party,  the  officer 

making  the  return,  or  counsel,  should  note  an  appeal  pending  instructions  from  the 
Navy  Department.  See  HABEAS  CORPUS,  18. 

An  officer  acting  as  counsel  for  an  accused  should  not  institute  habeas  corpus  pro- 
ceedings or  a  suit  for  damages  against  members.  See  COUNSEL,  29,  36;  HABEAS 
CORPUS,  17. 

9.  Illegal  orders— Appeals  from.    See  ORDERS,  4,  5,  38,  39,  64,  67. 

10.  Officer — Appeals  to  President  under  Navy  Regulations,  1900,  R-1657  (4)  [Navy  Regu- 

lations, 1913, 1-5323],  can  not  be  made  t»y  an  officer  in  behalf  of  another  person,  as 
in  a  case  of  an  appeal  by  an  officer  who  acted  as  counsel  in  a  general  court-martial 
trial  in  behalf  of  accused.  File  8464-03;  670-97.  See  also  APPEALS,  4. 

11.  Same — As  a  general  rule,  no  appeal  lies  to  the  President  from  the  head  of  a  department, 

whose  acts  are  presumed  to  be  acts  of  the  President  himself  (9  Op.  Atty.  Gen.  462). 
However,  in  the  naval  service  appeals  may  be  taken  to  the  President  from  the  orders 
and  decisions  of  the  Secretary  of  the  Navy.  (Naval  Instructions,  1913,  1-5323). 
An  official  appeal  from  an  order  or  decision  of  the  Secretary  of  the  Navy,  by  an 
officer,  shall  be  addressed  to  the  President  as  the  common  superior,  and  be  for- 
warded through  the  department,  except  in  case  of  refusal  or  failure  to  forward, 
when  it  may  be  addressed  directly.  Similarly,  an  appeal  from  an  order  or  decision 
of  an  immediate  superior  shall  be  addressed  to  the  next  highest  common  superior 
who  has  power  to  act  in  the  matter,  and  shall  be  forwarded  through  the  immediate 
superior,  or,  should  the  latter  refuse  or  fail  to  forward  it  within  a  re  isonable  time, 
it  may  be  forwarded  direct  with  an  explanation  of  such  course.  (1-5323.) 

12.  Same — Accused  (officer)  sentenced  to  lose  15  numbers,  which  was  approved  by  con- 

vening authority.  The  accused  appealed  from  the  sentence.  The  case  was  there- 
upon examined  by  the  Judge  Advocate  General  and  by  the  Secretary  of  the  Navy, 
and  finally  submitted,  with  a  full  statement  of  the  points  covered  by  the  appeal. 
to  the  President,  who  directed  that  the  sentence  be  mitigated  and  that  the  accused 
be  reprimanded  for  neglect  of  duty.  C.  M.  O.  48, 1904,  1. 

13.  Same — Accused  (officer)  sentenced  to  lose  10  numbers,  which  was  approved  by  con- 

vening authority,  made  a  formal  appeal  to  the  department,  which  declined  to 
disturb  the  conclusions  reached  by  the  court.  C.  M.  O.  73, 1896,  2. 

A  marine  officer  appealed  to  President  regarding  his  position  on  the  list,  stating 
that  under  section  19  of  the  personnel  act  and  R.  S.  1219  he  should  precede  four  others. 
File  8171-03. 

Appealed  to  department  and  requested  consideration  of  department's  letter  of 
censure  in  connection  with  report  of  board  of  investigation.  File  262>v 3-327:24,  J.  A.  G . 
June  15, 1916.  See  also  RES  JUDICATA,  14. 

Member  of  a  general  court-martial  protested  and  appealed  against  criticism  of  con- 
vening authority  (fleet).  See  CRITICISM  OF  COURTS-MARTIAL,  35. 

Member  of  a  summary  court-martial  appealed  from  criticism  of  convening  author- 
ity being  entered  on  report  on  fitness.  See  CRITICISM  OP  COURTS-MARTIAL,  36. 

Officer  appealed  for  a  reconsideration  of  his  general  court-martial  sentence,  but 
Secretary  of  the  Navy  denied  appeal.  File  20251-8101:2,  Sec.  Navy,  Apr.  30,  1915. 
See  also  File  4435  and  4445-04,  J.  A.  G.,  May  19,  1904. 

Officer  appealed  from  opinion  of  Judge  Advocate  General  to  Secretary  of  the  Navy. 
File  14018-4,  J.  A.  G.,  Aug.  16,  1909,  p.  7. 


APPEALS.  29 

14.  Orders — Appeals  from  illegal  orders.    See  ORDERS,  4,  5. 

15.  President — Appeals  to.    See  APPEALS,  10, 11. 

16.  Property  accounts— To  Secretary  of  the  Navy. 

17.  Report  on  fitness — Officer  appealed  to  have  punishment  removed  from  report  on 

fitness. 
See  CRITICISM  OF  COURTS-MARTIAL,  36. 

18.  Second  lieutenant,  U.  S.  M.  C.— Having  failed  professionally  in  examination  for 

promotion  appealed  on  ground  that  he  was  ill  at  time  of  examination.  Disapproved. 
File  26260-3314:6,  Sec.  Navy,  August,  1910.  Sec  also  PROMOTION,  97. 130, 148. 

19.  Secretary  of  the  Navy — Has  the  power,  and  therefore  his  duty,  to  examine  into 

the  grounds  upon  which  an  accused  bases  his  appeal.    C.  M.  O.  73, 1896,  2. 

20.  Sublg  Bay  Naval  Reservation— Secretary  of  Navy  denied  an  appeal  by  a  civilian 

from  action  of  commandant  in  deporting  him.  File  11406-429,  Sec.  Navy,  July  6, 
1915.  See  also  JURISDICTION,  96. 

APPLICANTS  FOR  ENLISTMENT. 

1.  Assumed  names— Should  not  be  enlisted  under.    See  NAME,  CHANGE  OF,  5. 

2.  Marine  Corps— Prosecution  of  those  who  fraudulently  receive  transportation,  etc. 

See  File  7657-180  and  180:1,  June  4, 1913.    See  also  MARINE  CORPS,  27,  29. 

APPOINTING  POWER. 

1.  Power  ol — The  power  of  appointing  officers  of  the  Navy,  vested  by  the  Constitution  in 

the  President  and  the  Senate,  can  not  be  restricted  by  a  custom,  however  long  con- 
tinued; and  unless  the  laws  plainly  and  unmistakably  contain  such  limitation,  it 
can  not  be  held  to  exist.  File  5252-36,  J.  A.  G.,  May  5,  1910,  p.  2. 

2.  Same — Under  the  Constitution  Congress  has  power  to  create  offices,  but  by  Article  II, 

section  2,  the  power  of  appointment  to  such  offices  is  expressly  vested  elsewhere. 
Congress  may  and  frequently  has  exercised  the  power  of  changing  the  rank  or  emolu- 
ments of  persons  holding  office  under  the  United  States,  but  it  can  not  appoint 
such  person  to  a  "new  and  different  office,  because  the  Constitution  vests  the 
appointing  power  in  the  President,  with  the  advice  of  the  Senate,  or  in  certain  cases 
in  the  President  alone,  the  heads  of  executive  Departments,  or  the  courts  of  law." 
(Wood  v.  U.  S.,  15  Ct.  Cls.  86;  see  also  Wood  v.  U.  S.,  107  U.  S.,  414;  Moser  v.  U.  S., 
42Ct.Cls.,86;  25Op.Atty.  Gen.,185;  20  Op.  Atty.  Gen., 358;  19  Op.Atty.  Gen.,589; 
6  Comp.  Dec.,  828;  veto  message  of  President  Arthur  of  July  2, 1884,  VIII  Mess,  and 
Papers  Prest.,  221.)  Held,  That  the  provision  in  act  of  August  22,  1912  (37  Stat. 
891),  "that  the  dentist  now  employed  at  the  Navy  Academy  shall  not  be  displaced 
by  the  operation  of  this  act  and  he  shall  have  the  same  official  status,  pay,  and 
allowances  as  may  be  provided  for  the  senior  dental  surgeon  at  the  Military  Academy," 
did  not  create  a  new  office  at  the  Naval  Academy,  and  no  appointment  or  commis- 
sion is  necessary  or  can  properly  be  issued  to  "the  dentist  now  employed  at  the 
Naval  Academy."  File  13707-25,  J.  A.  G.,  Oct.  24, 1912.  See  also  APPOINTMENTS,  8. 

3.  Resignations — The  appointing  power  may  decline  to  accept  resignations.    See  RESIG- 

NATIONS, 2,  16-19. 

4.  Statutes  In  derogation— Of  the  appointing  power.    See  OFFICERS,  96;  STATUTORY 

CONSTRUCTION  AND  INTERPRETATION,  28. 

APPOINTMENTS.   See  also  ACTING  APPOINTMENTS;  COMMISSIONS. 

1.  Acting  Assistant  Dental  Surgeons.    See  ACTING  ASSISTANT  DENTAL  SURGEONS. 

2.  Acting  Assistant  Surgeons.    See  ACTING  ASSISTANT  SURGEONS,  1, 2. 

3.  Acting  Pay  Clerks.    See  PAY  CLERKS  AND  CHIEF  PAY  CLERKS,  1,  2,  3. 

4.  Age  limit.    See  AGE,  1;  ASSISTANT  PAYMASTERS,  3;  MIDSHIPMEN,  3-6. 

5.  Assistant  paymasters.   See  ASSISTANT  PAYMASTERS,  1-3. 

6.  Commandant  ol  Marine  Corps — Can  not  be  temporary.     See  MARINE  CORPS, 

47,  48. 

7.  Same— Retired  officer  can  not  receive  an  appointment  as.    See  MARINE  CORPS,  47,  48. 

8.  Congress— Can  not  of  itself  make  an  appointment  to  an  office,  such  act  being  one  of 

the  functions  of  the  Executive,  the  courts  of  law,  or  heads  of  departments.  File 
22724-16:1,  J.  A.  G.,  Apr.  24, 1911,  p.  10.  See  also  APPOINTING  POWER,  2. 

9.  Date  of — The  appointment  of  an  officer  is  not  consummated  until  his  commission  is 

signed  and  sealed  by  the  President,  who  has  a  right  to  withhold  his  signature  after 
confirmation  by  the  Senate.  File  4996,  June  1, 1906.  See  also  COMMISSIONS,  41. 

It  would  seem  to  be  the  opinion  of  the  court  in  Marbury  v.  Madison  (1  Cranch,  137) 
that  the  office  is  completely  filled  in  every  case  of  vacancy  as  soon  as  the  appoint- 
ment is  complete,  independently  of  the  acceptance  of  the  appointee.  (2  Story,  5th 
ed.,sec.  1D54.  )  File  22724-16:1,  J.  A.  G.,  Apr.  24,  1911,  p.  9. 


30  APPOINTMENTS. 

10.  Same — Promotion  is  a  vested  right,  and  an  officer  is  entitled  to  rank  from  date  of 

vacancy.    Pile  14818-^4.    But  see  PROMOTION,  142,  213. 

11.  Same — Where  the  appointment  of  a  midshipman  as  ensign  is  held  over,  after  final 

graduation  of  his  class,  and  he  is  later  appointed,  his  commission  should  bear  the 
date  of  confirmation  of  his  class  by  the  Senate.  See  File  4996,  June  1, 1906. 

12.  Same— An  officer  having  been  appointed  as  soon  as  he  becomes  eligible  will  not  be 

subsequently  given  an  earlier  date,  although  his  eligibility  may  relate  back  to  such 
date.  File  9466-03. 

13.  Same^-Officers  advanced  in  the  corps  of  civil  engineers,  to  fill  vacancies  caused  by  the 

retirement  of  Civil  Engineer  Robert  E.  Peary,  United  States  Navy,  should  be  given 
the  date  of  that  officer's  actual  retirement,  and  not  the  date  from  which  it  was  pro- 
vided by  special  act  of  Congress  that  his  retirement  should  date.  File  26255-83:4. 
J.  A.  G.,  Aug.  4, 1911. 

14.  Date  of  acceptance— Where  an  officer  of  the  Marine  Corps  was  appointed  a  second 

lieutenant  on  July  18,  1905,  the  date  he  'became  21  years  of  age,  and  on  that  date 
wrote  an  acceptance  from  Fort  Missoula,  Mont.,  and  thereafter  the  Bureau  of  Navi- 
gation, on  July  24, 1905,  forwarded  a  notification  of  such  appointment  and  a  blank 
form  of  acceptance  and  oath  of  office,  which  were  executed  by  the  officer  July  31, 
1905.  Held,  That  if  he  was  informed  in  effect  that  he  would  be  appointed  when  he 
reached  the  age  of  21,  or  if  he  had  actual  notice  that  he  had  been  appointed,  or  if  his 
appointment  had  been  "in  some  way  brought  to  his  knowledge,"  his  letter  of  July 
18, 1935,  constituted  a  valid  acceptance  from  said  date.  File  11130-16,  J.  A.  G.,  May 
28,  1912. 

15.  Dental  Surgeons,  Acting  Assistant.    See  ACTING  ASSISTANT  DENTAL  SURGEONS. 

16.  Desertion  of  an  officer— Effect  of.    See  DESERTION,  90,  91. 

17.  Ensigns— Academic  Board  has  no  power — An  examination  of  the  statutes  providing 

for  the  appointment  of  ensigns  in  the  Navy,  from  1862  to  May  5,  1910,  does  not  dis- 
close any  mention  of  the  Academic  Board  as  possessing  exclusive  powers  with 
respect  to  such  appointments.  See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY,  4. 

18.  Same — From  boatswains,  gunners,  warrant  machinists,  etc. — The  act  of  March  3, 1901 

(31  Stat.,  1129)  provides  for  filling  vacancies  in  the  grade  of  ensign  by  presidential 
appointments  from  boatswains,  gunners,  or  warrant  machinists,  not  exceeding  six 
per  calendar  year.  The  act  of  March  3,  1903  (32  Stat.,  1197)  raised  the  number  to 
12  yearly.  See  J.  A.  G.  Memo.,  Sept.  30,  1916;  Act,  Apr.  27,  1<J04  (33  Stat.  346) 
cited  in  File  28026-1209:  4,  J.  A.  G.,  Oct.  25,  3916;  PROMOTION,  192,  216. 

19.  Examining  Boards— Appointments  to.    See  MARINE    EXAMINING    BOARDS,   4-8; 

NAVAL  EXAMINING  BOARDS,  2,  4,  5. 

20.  Marine  Corps— May  be  made  from  civil  life.    File  3727-2,  Sec.  Navy,  Feb.  17, 1906. 

21.  Same— Appointment  of  Major  General  Commandant.    See  MARINE  CORPS,  47-50. 

22.  Same— Enlisted  men  of  the  Navy  and  Marine  Corps,  as  well  as  noncommissioned 

officers,  may  be  appointed  as  second  lieutenants.  File  13261-420,  J.  A.  G.,  May 
29, 1913. 

23.  Same— Enlisted  men  to  Naval  Academy.    See  MIDSHIPMEN,  52. 

24.  Medical  Reserve  Corps.    See  MEDICAL  RESERVE  CORPS  OF  THE  NAVY,  1. 

25.  Midshipmen.    See  MIDSHIPMEN;  NAVAL  ACADEMY. 

26.  Naval  Academy— Legal  residence  and  age  requirement.    See  MIDSHIPMEN,  3-6. 

27.  Naval  officers — From  civil  life,  Army,  or  Marine  Corps.    See  CONSTRUCTIVE  SERVICE. 

28.  Pay  clerks  and  chief  pay  clerks.    See  PAY  CLERKS  AND  CHIEF  PAY  CLERKS. 

29.  Paymasters,  assistant.    See  ASSISTANT  PAYMASTERS. 

30.  Paymaster's  clerks.    See  U.  S.  Navy  Reg.  Cir.,  Sec.  Navy,  Jan.  10,  1880;  PAYMAS- 

TER'S CLERKS,  10. 

31.  Physical  disability— Waiver  of ,  and  rights  to  retirement.    See  RETIREMENT  OF  OFFI- 

CERS, 4o. 

32.  Post  traders.    See  POST  TRADERS. 

33.  Power  of.    See  APPOINTING  POWER,  1,  2. 

34.  Professor  of  mathematics — Filling  vacancy  in  corps  of.    See  PROFESSORS  OF  MATHE- 

MATICS. 

35.  Prohibited  In  certain  cases — A  naval  surgeon  can  not  be  appointed  to  the  position 

of  health  officer  of  Culebra,  P.  R.  File  9736-18,  J.  A.  G.,  June  25, 1910,  p.  16.  See 
also  File  1831-18,  Sec.  Navy,  Apr.  18,  1907. 

A  marine  officer  can  not  accept  the  appointment  as  member  of  governor's  staff  in 
Porto  Rico.  (File  5381-1,  Sec.  Navy,  Aug. 30, 1907.)  File  9736-18,  J.  A.  G.,  June  25, 
1910,  p.  16. 

36.  Qualifications  for  appointment— The  qualifications  of  a  candidate  are  presumed  to 

have  been  ascertained  and  found  satisfactory  previous  to  his  appointment  to  office, 


APPOINTMENTS.  31 

and  in  the  absence  of  fraud  his  qualifications  can  not,  under  certain  conditions, 
thereafter  be  inquired  into,  although  it  should  be  claimed  that  he  did  not  possess 
the  statutory  qualifications  for  appointment.  (28  Op.  Atty.  Gen.  ISO.)  File  5460- 
82,  J.  A.  G.,  June  3, 1916.  See  also  CONSTITUTIONAL  LAW,  4. 

37.  Recess  appointments.    See  COMMISSIONS,  1,  23,  29. 

38.  Requirements  for— Commission  void  if  unfulfilled.    See  COMMISSIONS,  20. 

39.  Retired  officer— As  delegate  to  Hague  Conference.    See  RETIRED  OFFICERS,  38. 

40.  Revocation  of.    See  COMMISSIONS,  20,  22;  POST  TRADERS. 

41.  Temporary — Acting  assistant  dental  surgeon.    See  ACTING  ASSISTANT  DENTAL  SUR- 

GEONS. 

42.  Same— Major  General,  Commandant  of  Marine  Corps.    See  MARINE  CORPS,  48. 

43.  Vacated— By  filling  grade  to  authorized  number.    See  DESERTION,  91;  PROMOTION,  109. 

44.  Warrant  machinists.    See  WARRANT  OFFICERS. 

APPRENTICES. 

1.  Hospital  apprentices— Clothing  outfits  for.    See  CLOTHING  OUTFITS. 

2.  Minors— Who  enlist  with  consent  of  guardian,  have  same  right  as  other  enlisted  men 

to  make  agreement  to  reenlist  or  to  waive  transportation.  File  4682-04,  J.  A.  G., 
May  31,  1904. 

3.  Naval  apprentices— Clothing  outfits  for.    See  CLOTHING  OUTFITS,  1. 

APPROVAL  ONLY  THAT  ACCUSED  MIGHT  NOT  ENTIRELY  ESCAPE  PUN- 
ISHMENT.   See  also  CRITICISM  OF  COUETS-MARTIAL,  35  (p.  143). 

1.  Approval  of  proceedings,  findings,  and  sentence — That  accused  might  not  escape 

punishment—"  The  department  approves  the  sentence  in  this  case  only  in  order 
that  the  accused  might  not  escape  punishment  for  the  serious  offense  of  which  he 
was  convicted,  upon  his  own  plea."  C.  M.  O.  1,1914,8. 

2.  Same— The  convening  authority  (fleet)  stated,  in  part,  that  the  sentence  in  revision 

wasstill  inadequate,  but  approved  the  proceedings,  findings,  and  sentence  in  revision, 
in  order  that  the  accused  might  not  entirely  escape  punishment.  C.  M.  O.  38, 
1914,  2;  45,  1914, 1. 

3.  Same—"  The  proceedings,  findings,  and  sentence  in  this  case  are  approved  only  for 

the  reason  that  they  are  the  result  of  prolonged  deliberation  by  a  respectable  and 
legally  organized  court,"  and  because  the  accused  would  otherwise  go  wholly  with- 
out punishment.  G.  O.  148,  Dec.  31, 1869. 

4.  Same.    See  C.  M.  O.  22,  1884,  2;  35,  1884;  30,  1885,  3;  61J,  1890,  4;  102, 1893,  2;  2, 1896,  2; 

139, 1897,  2;  215, 1901,  2;  108, 1903;  2, 1907;  10, 1908,  5;  23, 1908;  24, 1908;  28, 1908;  1, 1914, 
8;  38, 1914,  2;  45, 1914;  14. 1915,  2;  17. 1915,  3;  43, 1915;  6, 1916;  12, 1916;  19, 1916,  3. 

5.  Approval— Of  the  finding  "not  guilty"  upon  a  charge  of  "Culpable  inefficiency  in  the 

performance  of  duty"  only  on  the  presumption  that  the  court  must,  though  un- 
warrantably, have  regarded  the  charge  of  "culpable  inefficiency"  as  implying  an 
element  of  fraudulent  intent.  C.  M.  0. 129, 1898, 8. 

ARCTIC  RELIEF  SQUADRON. 

1.  Return  of — "The  Navy  Department  announces  to  the  service  the  safe  arrival  at  Ports- 
mouth, N.  H.,  on  the  1st  of  August,  of  the  Thetis,  Bear,  and  Alert,  composing  the  Arc- 
tic Relief  Squadron,  after  having  successfully  accomplished  the  object  of  their  mis- 
sion, in  the  rescue  of  Lieutenant  Greelyof  the  Army,  and  the  other  survivors  of  his 
party."  G.  O.  321,  Aug.  5,  1884. 

ARGUMENTS. 

1.  General  court-martial  trial — The  Forms  of  Procedure  1910,  page  39,  provides:  "The 
judge  advocate  is  entitled  to  the  closing  argument"  and  the  sequence  of  procedure 
contained  on  the  same  page  indicates  that  the  defense  makes  the  opening  argument 
and  the  judge  advocate  follows,  either  making  an  argument  or  stating  that  he  submits 
the  case  to  the  court  without  remark.  (See  also  G.  C.  M.  Rec.  No.  21478o,  p.  3.)  In 
case  the  accused  has  only  one  counsel  and  the  judge  advocate  has  no  counsel  asso- 
ciated with  him,  the  court,  in  its  discretion,  may  properly  grant  a  request  of  either 
the  prosecution  or  defense  to  argue  more  than  once.  If  the  judge  advocate  has  an 
associate  and  the  accused  is  represented  by  more  than  one  counsel,  the  court  may 
exercise  its  discretion  as  to  granting  requests  from  either  side  for  an  argument  by  each 
individual  or  that  an  individual  may  argue  more  than  once.  By  placing  these  matters 
within  tne  discretion  of  the  court  the  department  does  not  desire  to  encourage  unneces- 
sary arguments.  The  court  should  grant  such  requests  for  additional  arguments  only 

50756°— 17 3 


32  ARGUMENTS. 

in  cases  where  it  is  clearly  necessary.  The  court,  in  its  discretion,  shall  arrange  the 
sequence  in  which  the  parties  present  their  arguments,  except  that  in  all  cases  the 
defense  shall  make  the  nrst  argument  and  the  prosecution  afforded  an  opportunity 
to  make  the  last.  (See  C.  M.  O.  55, 1910. 10;  G.  C.  M.  Rec.  No.  28652.)  C.  M.  O.  51, 
1914  3. 

While  great  latitude  is  allowed  counsel  for  defense  in  their  arguments,  still  the 
court  should  require  that  such  arguments  be  based  uoon  matter  which  is  relevant  to 
the  issue  of  the  trial.  The  court  should  not  permit  counsel  to  resort  to  a  general 
malediction  of  a  third  party.  File  26251-11479;  b  and  c,  Sec.  Navy,  Feb.  16, 1916. 

Judge  advocate  read  extracts  from  law  books  in  his  argument.  G.  C.  M.  Rec. 
23037, p.  89. 

Court  allowed  counsel  for  accused  to  make  a  second  argument,  and  the  judge  advo- 
cate exercised  his  right,  bymaking  the  final  argument.  G.  C.  M.  Rec.  30012;  File 
26251-11960.  See  in  this  connection  G.  C.  M.  Roc.  23037,  p.  89. 

2.  Same — Judge  advocate  should  not  make  his  closing  argument  a  plea  for  the  accused 

when  accused  is  represented  by  counsel  of  his  own  selection.    C.  M.  O.  1, 1914,  6. 

3.  Irregular— Courtcommits  an  error  if  it  permits  counsel  for  the  defense  to  read  in  the  begin- 

ning as  a  part  of  his  argument  a  statement  of  facts  by  the  accused.  The  so-called 
statement  in  this  case  was  throughout  an  assertion  of  independent  facts  and  therefore 
should  not  have  been  listened  to  by  the  court.  C.  M.  O.  70, 1896,  9.  See  also  STATE- 
MENT OF  ACCUSED,  14. 

4.  Oral  arguments—Upon  the  admissibility  of  evidence  and  upon  interlocutory  proceed- 

ings, may  beallowed,  but  shall  not  be  recorded;  briefs  of  such  arguments,  if  prepared 
at  his  own  expense  and  subsequently  submitted  to  the  court  by  the  party  who  made 
the  same,  shall  be  appended  to  the  record.  C.  M.  O.  27,  1913,  12;  31,  1914,  2;  49, 
191."),  9.  See  also  G.  C.  M.  Rec.  30485;  13370;  BRIEFS,  1. 

5.  Record  of  proceedings— Copy  appended.    C.  M.  O.  26, 1905, 3. 

ARMISTICE.    See  WAR,  1-4. 

ARMY. 

1.  "Army  code."    C.  M.  O.  31,  1915,  9.    See  also  ARTICLES  OF  WAR. 

2.  Arrest  of  deserters  from  Army— By  civil  authorities.    See  DESERTERS,  2. 

3.  Articles  of  War.   See  ARTICLES  OF  WAR. 

4.  Chaplains.    See  CHAPLAINS,  1. 

5.  Charges  and  specifications,  additional.    See  ADDITIONAL  CHARGES  AND  SPECIFICA- 

TIONS, 1,  3. 

6.  ''Conduct  unbecoming  an  officer  and  a  gentleman" — Sentence  of  dismissal  is 

mandatory  in  Army.  See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN, 
6;  COURT.  169. 

7.  Court-martial,  Army— Enlisted  men  of  the  Navy  and  Marine  Corps  while  being 

transported  on  board  an  Army  transport  are  subject  to  the  rules  and  regulations  of 
said  transport,  but  those  regulations  contain  nothing  which  would  give  an  Army 
summary  court  jurisdiction  over  such  enlisted  men  for  purposes  of  their  trial  thereby. 
To  be  so  amenable  to  trial  by  such  a  court,  the  enlisted  men  must  be  attached  to 
the  Army  by  Executive  order.  File  20287-534,  J.  A.  G.,  June  15,  1910. 

No  Army  court-martial  shall  be  held  on  board  any  naval  vessel  in  commission, 
nor  shall  officers  in  charge  of  troops  embarked  order  any  public  punishment  or  con- 
finement in  irons  to  be  inflicted  on  board  without  the  previous  approval  of  the  com- 
manding officer  of  the  ship.  (R-3845.) 

8.  Deserters  from  Army — May  be  arrested  by  civil  authorities.    See  ARREST,  1;  DE- 

SERTERS, 2. 

9.  Desertion— On  a  charge  of  desertion  the  specification  in  addition  to  alleging  "that  the 

accused  remained  in  desertion  until  identified  while  serving  in  the  Army  "  must  also 
allege  the  date  upon  whicn  he  was  identified.  C.  M.  O.  33,  1912,  2;  6;  1913,  4. 

10.  Dishonorable  discharge  from  the  Army — Men  who  fraudulently  enlist  in  Navy  or 

Marine  Corps  concealing  a  dishonorable  discharge  from  the  Army  should  be  sentenced 
to  dishonorable  discharge  for,  irrespective  of  the  offense  for  which  the  man  may  be 
tried  and  convicted,  it  can  not  be  to  the  best  interests  of  the  naval  service  to  retain 
in  it  men  who  nave  been  dishonorably  discharged  from  the  Army.  C.  M.  O.  17, 
1910,  7;  26, 1910,  5.  See  also  FRAUDULENT  ENLISTMENT,  9, 39. 

IL  Fraudulent  enlistment— As  proof  of  desertion.    C.  M.  0. 23,  1910,8.    S«  o&o  DESER- 
TION, 51;  FRAUDULENT  ENLISTMENT,  37, 38, 51. 


ARMY.  33 

12.  General  court-martial— Trial  of  Marine  by  Army  court-martial — Sentence  mitigated 

by  President  after  return  of  accused  to  naval  jurisdiction.  See  MARINES  SERVING 
WITH  ARMY,  6. 

13.  General  court-martial  record  as  evidence^— A  record  of  a  trial  by  general  court- 

martial  of  an  accused  while  serving  an  enlistment  in  the  Armv  is  inadmissible  in 
evidence  before  a  naval  court-martial  to  show  that  the  accused  was  mentally  irre- 
sponsible, and  a  request  by  the  defense  for  postponement  until  copy  of  such  record 
of  trial  is  secured  was  properly  overruled.  C.  M.  O.  17,  1910,  9. 

14.  General  Orders  of  Army— A  general  order  of  headquarters  of  California,  United  States 

Army,  is  such  a  document  as  may  properly  be  admitted  in  evidence  for  certain  pur- 
poses. C.  M.  O.  49, 1910. 10. 

15.  General  Order  No.  11O,  Navy  Departinenty-A  soldier  who  enlists  in  Marine  Corps 

for  first  time  upon  the  termination  of  an  enlistment  in  Army  is  not  a  reenlisted  man 
within  purview  of  G.  0. 110.  See  GENERAL  ORDER  No.  110,  JULY  27, 1914,  19. 

16.  Guard  duty.    See  MANSLAUGHTER,  9. 

17.  Manual  of  Interior  Guard  Duty,  1914 — Court  may  take  judicial  notice  of.    See 

JUDICIAL  NOTICE,  6. 

18.  Marines  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

19.  Medical  Reserve  Corps  of.    See  MEDICAL  RESERVE  CORPS  OF  THE  NAVY,  1. 

20.  Mitigation  of  sentence  after  final  approval — The  convening  authority  of  an  Army 

court-martial  has  no  authority  under  the  112th  Article  of  War  to  mitigate  after 
final  approval.  C.  M.  0. 1, 1912,  4.  See  also  ARTICLES  OF  WAR,  3. 

21.  Previous  convictions — Of  marine  while  serving  temporarily  with  Army,  under  execu- 

tive order,  admissible  in  a  subsequent  trial  by  naval  court-martial,  if  otherwise 
admissible.  See  PREVIOUS  CONVICTIONS,  3. 

22.  Same — Previous  convictions  while  serving  an  enlistment  in  the  Army  is  inadmissible 

in  a  subsequent  trial  by  naval  court-martial.    See  PREVIOUS  CONVICTIONS,  2. 

23.  Promotion—  Officer  shall  be  examined  for  promotion  prior  to  the  existence  of  the 

vacancy.    See  PROMOTION,  131, 132. 

24.  Same — Where  examined  afler  existence  of  vacancy.    See  PROMOTION,  131,  132. 

25.  Regulations,  Army.    See  REGULATIONS,  NAVY,  5,  13. 

26.  Sentence — Imposed  by  Army  court-martial  mitigated  by  President  after  return  of 

accused  to  naval  jurisdiction.    See  MARINES  SERVING  WITH  ARMY,  6. 

27.  Summary  court — No  jurisdiction  over  Marines  on  Army  transport.    See  ARMY,  7. 

28.  Transports — Marines  embarked  upon— No  jurisdiction  by  Army  summary  court. 

See  ARMY,  7. 

29.  Trials— Time  of  day  Army  courts-martial  convene  for  trials.    C.  M.  O.  27,  1913,  10. 

See  also  COURT,  171. 

ARMY  AND  NAVY  CLUB  OF  MANILA,  P.  I. 

1.  Officer  expelled  from.    C.  M.  0. 5, 1909, 1;  File  26260-1392,  J.  A.  G.,  June  29, 1911,  p.  18. 

ARMY  AND  NAVY   CLUB   OF  WASHINGTON.    See  C.  M.  O.  15,  1916,  3. 

ARRAIGNMENT. 

1.  Additional  charges  and  specifications — May  be  preferred  by  convening  authority, 

even  after  arraignment.    See  ADDITIONAL  CHARGES  AND  SPECIFICATIONS. 

2.  Errors  In— Where  the  record  failed  to  show  that  the  accused  had  been  arraigned  on  all 

specifications,  but  merely  on  one,  and  the  court  made  a  similar  error  in  its  findings, 
the  department  held  that  as  it  was  impossible  to  ascertain  to  which  specification  the 
accused's  plea  of  guilty  was  directed  and  that  the  accused  was  certainly  not  informed 
as  to  which  specification  he  was  pleading,  such  errors  were  fatal  and  necessitated  a 
disapproval  of  the  findings  by  the  department.  C.  M.  O.  49,  1910,  14. 

3.  Same-;-It  is  improper  to  arraign  the  accused  as  follows:  "How  say  you  to  the  specifi- 

cation of  the  first  charge  *  *  *"  when  there  is  but  one  charge  against  the  accused. 
It  is  also  improper,  in  such  case,  to  record  that  the  court  finds  the  accused  guilty  of  the 
first  charge.  C.  M.  O.  21,  1910,  11.  Seealso  ARRAIGNMENT,  6, 16,  28,  29. 

4.  Same — Where  the  record  showed  that  the  accused,  upon  arraignment,  pleaded  guilty 

to  the  specification  of  the  second  charge,  but  con  tamed  no  entry  as  to  what  his  plea 
was  to  the  charge,  the  finding  as  to  that  charge  was  disapproved.  C.  M.  O.  51. 1905. 

5.  Same — An  accused  charged  with  desertion,  pleaded  guilty  of  absence  without  leave, 

and  not  guilty  to  so  much  of  the  specification  as  alleged  desertion.  The  court  neither 
accepted  nor  rejected  his  plea,  but  called  his  attention  to  Navy  Regulations,  1905, 
R-897[N.  R.,  1913,  R-3632(4)].  The  accused  was  then  arraigned  a  second  time  and 


34  ARRAIGNMENT. 

pleaded  guilty  to  both  charge  and  specification.  Held,  That  this  procedure  of  the 
court  was  irregular,  and  in  view  of  Navy  Regulations,  1905,  R-900  [N.  R.,  1913,  R- 
3633],  improper.  The  proceedings,  findings,  and  sentence  were  disapproved.  C.  M. 
O.  4, 1906. 

6.  Same — It  is  an  error  for  the  first  question  to  refer  to  "charges  and  specifications  "  if  there 

is  but  onecharge  and  specification.  C.  M.  0. 78, 1905.  See  also  ARRAIGNMENT,  3. 16, 
28, 29. 

7.  Same — Accused  pleaded  in  bar  of  trial  the  statute  of  limitations,  but  court  decided  that 

said  plea  was  not  valid.  Thereupon,  without  arraigning  the  accused,  who  was  given 
no  opportunity  to  plead  to  the  general  issue,  the  judge  advocate  began  the  prosecu- 
tion. The  accused  was  found  guilty  and  sentenced.  The  department  held  "that  if, 
as  appears  from  the  record,  the  accused  was  not  arraigned  upon  the  charge  and  specifi- 
cation preferred  against  him,  such  omission  constitutes  a  fatal  defect  in  the  proceed- 
ings of  the  court,  and  that,  even  if  the  error  in  this  regard  is  one  of  record  only,  and 
not  of  fact,  the  evidence  adduced  is  wholly  insufficient  to  establish  the  offense 
charged."  The  sentence  was  accordingly  disapproved.  C.  M.O  .  28, 1902. 

8.  Same — The  record  showed  that  the  accused  was  arraigned  on  the  first  specification  of 

the  second  charge  and  on  the  third  specification  of  the  second  charge,  but  failed  to  show- 
that  the  accused  had  been  arraigned  and  pleaded  to  the  second  specification  of  said 
second  charge.  The  accused  was  acquitted,  and  the  department  for  the  above  and 
other  reasons  disapproved  the  findings  and  acquittal.  C.  M.  O.  27, 1913, 10, 11. 

9.  Same — The  entry  referring  to  the  arraignment  of  the  accused  was  incomplete,  as  it  was 

not  shown  that  the  accused  was  arraigned  on  the  charge.  The  entry  upon  the  record 
showed  that  the  accused  was  arraigned  upon  the  specification  of  the  charge,  and 
stood  mute;  it  should  also  show  that  he  was  arraigned  upon  the  charge.  C.  M.  0. 14, 
1910,  8. 

10.  Same — The  record  of  proceedings  in  this  case  shows  that  the  accused  was  arraigned  on 

the  first,  second,  and  third  specifications  of  the  charge,  and  the  charge,  but  does  not 
disclose  an  arraignment  on  the  fourth  specification  of  the  charge.  He  pleaded 
"guilty  "to  the  charge  and  to  the  specifications  on  which  he  was  arraigned.  The 
court  found  all  four  specifications  "proved  by  plea  "and  the  accused  "guilty  "of  the 
charge.  If,  as  appears  from  the  record,  the  accused  was  not  arraigned  upon  the 
fourthspecificationofthecharge  preferred  against  him,  such  omission  constitutes  a 
fatal  defect  as  to  that  specification,  and  for  this  reason  the  finding  on  the  fourth 
specification  is  set  aside.  (See  Forms  of  Procedure,  1910,  p.  24;  C.  M.  O.  28, 1902; 
51,1905,  1;  49.1910, 14;  14,1910,8;  27,1913.11;  G.C.  M.  Rec.  No.  27273;  Shelpfl.U.  S., 
81  Fed.,  701;  Harv.  Law  Revie-\y,  June,  1914,  p.  760.)  This  irregula.ity  in  the  pro- 
ceedings does  not  vitiate  the  findings  as  to  the  remainder  of  the  specifications  or  the 
charge  nor  affect  the  legality  of  the  sentence.  (See  Carter  v .  McClaughry,  183  U.  S., 
365.)  C.  M.  O.  17,  1915,  1-2. 

11.  Same — The  department  disapproved  the  findings  on  a  charge  and  specification  there- 

under when  the  accused  was  not  arraigned  on  the  charge.    C.  M.  O.  28, 1894,  4. 

12.  Same — Where  the  record  did  not  show  that  the  accused  was  arraigned  on  the  third 

specification  of  the  third  charge  the  department  returned  the  record,  and  the  court 
in  revision  made  a  notation  that  the  accused  was  arraigned  on  this  specification. 
File  26251-8344,  Sec.  Navy,  Apr.  14, 1914;  G.  C.  M.  Rec.  No.  28681. 

13.  Failure  to  arraign.    See  ARRAIGNMENT,  2-12. 

14.  Findings  set  aside.    See  ARRAIGNMENT,  10. 

15.  Irregular  pleading — The  accused,  upon  being  arraigned,  pleaded  to  the  first  charge 

and  specification  as  follows:  "To  the  specification,  'not  guilty';  to  the  charge, 
'guilty'."  Such  a  plea  should  not  be  allowed  by  the  court,  as  the  form  of  the  plea 
is  strictly  inadmissible.  It  neither  confesses  anything  nor  contests  anything,  out 
consists  of  two  incompatible  answers  which  nullify  the  issue,  and  can  not  be  ad- 
mitted as  pleas  by  the  court.  In  view  of  the  above  the  findings  on  the  first  charge 
and  specification  thereunder  were  disapproved.  C.  M.  O.  8,  1897,  2;  146,  1901?  4. 

16.  Same — The  arraignment  of  the  accused  was  carelessly  conducted,  the  accused  being 

called  upon  to  plead  to  the  "first  specification"  of  both  charges,  whereas  there  was 
but  one  specification  under  each  charge;  and  the  plea  of  the  accused  to  the  first 
charge  and  specification  was  irregular  in  form,  his  answer  to  the  spocification  being 
"guilty  in  a  less  degree  than  charged,"  and  to  the  charge  "guilty  in  less  degree." 
Neither  of  these  irregularities  were  sufficient  to  invalidate.  C.  M.  O.  35,  1900, 1. 
See  also  ARRAIGNMENT,  3,  6,  28,  29. 

17.  Joinder,  trial  in.    See  JOINDER,  TRIAL  IN. 


AKRAIGNMENT.  35 

18.  Mute — Procedure  where  accused  stands  mute  after  withdrawing  a  plea  of  nolo  con- 

tendere — Where  an  accused  withdraws  a  plea  of  "nolo  contendere,"  stating  "The 
accused  withdraws  his  plea  of  'nolo  contendere'  and  stands  mute."  he  should  be 
arraigned  on  both  the  specification  and  the  charge,  and  if  he  made  no  answer  to 
either,  the  fact  of  his  having  stood  mute  on  both  occasions  should  have  been  entered 
upon  the  record,  and  the  trial  should  have  proceeded  as  if  he  had  not  pleaded  "not 
guilty."  It  would  be  improper  for  the  judge  advocate  to  enter  a  plea  of  "not 
guilty."  C.M.  0.26,1910,6.  See  also  NOLO  CONTENDERE. 

19.  Same— When  the  accused  stands  mute  on  arraignment,  it  should  be  so  entered  upon 

the  record,  and  the  trial  then  proceed  as  though  the  accused  had  pleaded  "not 
guilty."  It  is  improper  for  the  court  to  direct  the  judge  advocate  to  enter  a  plea  of 
"not  guilty."  C.  M.  O.  14,  1910,  8;  26,  1910,  7.  See  also  C.  M.  O.  28,  1891,  2;  90, 
1897,  4. 

20.  Same— "The  accused  stood  mute  when  asked  to  plead  to  the  first  charge  and  specifi- 

cation."   C.  M.  O.  9, 1908, 1. 

21.  Same — "  To  which  charges  and  specifications  thereunder  the  accused,  when  called  upon 

to  plead,  stood  mute."    C.  M.  0. 18, 1907. 

22.  Same — In  joinder,  the  accused  were  arraigned  together  instead  of  separately,  but  inas- 

much as  they  stood  mute,  this  arraignment  was  sufficient  in  law. 

23.  Same — When  accused  stands  mute  on  arraignment,  no  comment  should  be  made,  as  he 

is  within  his  rights  in  so  doing.    C.  M.  O.  76, 1901. 

24.  Same — When  the  accused  stands  mute  when  arraigned  on  the  specification,  he  should 

also  be  arraigned  on  the  charge  and  the  record  should  show  that  he  was  arraigned  on 
both  the  charge  and  the  specification.  C.  M.  O.  14,  1910,  8.  See  also  C.  M.  O.  26, 
1910,  6-7. 

25.  Name  of  accused— Should  be  spelled  correctly  in  the  arraignment.    C.  M.  0. 28, 1910, 7. 

26.  Same — The  name  used  in  the  arraignment,  findings,  and  sentence  should  agree  with 

that  in  the  specification  if  the  latter  is  the  correct  name  of  the  accused.  C.  M.  0. 15. 
1910,  7. 

27.  Name  and  designation  of  the  accused — Shall  be  included  in  the  arraignment. 

C.  M.  O.  49,  1910, 14. 

28.  One  charge  and  specification — Where  only  one  charge  with  but  one  specification 

thereunder,  the  word  "first"  should  not  be  used  in  the  arraignment.  C.  M.  O.  21, 
1910, 11.  See  also  ARRAIGNMENT,  3,  6, 16,  29. 

29.  Same — Do  not  use  "charges  and  specifications."    C.  M.  O.  78, 1905, 1.    See  also  C.  M.  O. 

35, 1900;  ARRAIGNMENT,  3, 6, 16, 28. 

30.  Plea  not  accepted  or  withdrawn — The  accused  should  be  rearraigned  when  an  irregu- 

lar plea  is  not  accepted  or  plea  is  withdrawn.    C.  M.  O.  26, 1910,  6. 

31.  Record— The  questions  constituting  the  arraignment  and  the  answers  to  them  must  be 

distinctly  recorded.  C.  M.  O.  47,  1892;  102,  1893;  104,  1893;  1,  1894,  3;  13,  1894,  2; 
24,  1894,  2;  38, 1895,  2. 

32.  Summary  court-martial — If  there  are  two  or  more  specifications,  the  accused  should 

be  arraigned  upon  each  separately,  referring  to  each  of  them  by  number,  and  the  gen- 
eral form  of  arraignment  should  be  the  same  as  in  general  courts-martial.  C.  M.  0 . 5, 
1914,  4. 

33.  Warning — When  record  did  not  show  that  the  accused,  upon  his  plea  of  "guilty, "  was 

warned  by  the  court  of  the  consequences  of  so  pleading  and  of  the  further  fact  that 
the  questions  and  answers  constituting  the  arraignment  did  not  appear  upon  the 
record,  the  proceedings,  finding,  and  sentence  were  disapproved.  See  ACCUSED,  64; 
WARNING,  2. 

ARREST. 

1.  Army — Deserters  from — Civil  authorities  have  authority  to  arrest  deserters  from  the 

Army.    C.  M.  O.  22  1915,  7.    See  also  DESERTERS,  2. 

2.  Breaking  arrest— Should  be  charged  as  "breaking  arrest."    See  BREAKING  ARREST,  2. 

3.  Civil  authorities — Arrest  by.    See  DESERTERS,  2-6;  Crra,  AUTHORITIES,  17;  JURIS- 

DICTION, 16. 

4.  Same — Court-martial  prisoners.    See  CIVIL  AUTHORITIES,  37;  GENERAL  ORDER  No.  121, 

September  17, 1914, 16. 

5.  Same — Arrest  by  civil  authorities  no  defense  to  unauthorized  absence  if  convicted; 

otherwise  if  acquitted.    See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD 
EXPIRED,  3-5.    See  also  ARREST,  7;  COMMANDING  OFFICERS,  2. 

6.  Same— Persons  on  naval  territory.    See  JURISDICTION,  9, 12, 13,  22-24,  69,  83-87,  90-96, 

103,  105,  108,  117-122. 


36  ARREST. 

7.  Commanding  officer — Arrested  by  civil  authorities  and  acquitted— No  defense  to 

unauthorized  absence  because  he  failed  to  report  his  whereabouts  either  to  his  imme- 
diate superior  or  to  the  Secretary  of  the  Nayy.  See  COMMANDING  OFFICERS,  2. 

8.  Convening  authority— In  proper  cases  in  his  action  on  general  court-martial  cases 

should  release  accused  from  arrest  and  restore  him  to  duty.  See  CONVENING  AU- 
THORITY, 4. 

9.  Court-martial  orders— Should  show,  in  proper  cases,  that  the  accused  (officer)  was 

released  from  arrest  and  restored  to  duty.  C.  M.  O.  40, 1915.  See  also  C.  M.  O.  32, 
1915;  14, 1916,  where  this  was  not  done.  See  also  CONVENING  AUTHORITY,  4;  COURT- 
MARTIAL  ORDERS,  22. 

10.  Definition— The  question  of  what  constitutes  an  arrest  has  been  considered  by  the  civil 

courts  in  numerous  decisions  and  may  now  be  regarded  as  finally  settled. 

"  An  arrest  in  the  strict  legal  sense  of  the  term  involves  three  elements — authority, 
intention,  and  a  restraint  of  the  person. 

"  The  authority  must  exist:  Without  it  there  may  be  a  false  imprisonment,  but  not 
an  arrest.  This  authority  may  be  either  real  or  assumed. 

"The  intention:  There  must  be  an  intention,  understood  by  the  one  arrested,  to 
accomplish  the  arrest. 

"  Restraint  is  necessary:  A  restriction  of  the  right  of  locomotion  is  the  most  charac- 
teristic element  of  the  arrest."  (2  A.  <&  E.  Enc.  L.  834.) 

"  Except  in  the  case  of  a  submission,  there  must  be  either  a  physical  touching  or 
restraint,  mere  words  addressed  to  the  person  said  to  be  arrested  not  being  sufficient. 
Such  words  are  enough,  however,  if  there  is  also  submission  to  one  who  has  the  ap- 
parent power  of  carrying  his  design  into  effect."  (2  A.  &  E.  Enc.  L.  838.) 

"The  merest  touch,  however,  without  restraint,  will  suffice  to  constitute  an  arrest." 
(2  A.  &E.  Enc.  L.  836.) 

If  the  person  making  the  arrest  "placed  his  hand  upon  the  shoulder  of  the  accused 
when  putting  him  under  arrest,"  this  must  be  accepted  as  sufficient  to  constitute  an 
arrest,  in  the  technical  or  "strict  legal  sense  of  the  term,"  provided  that  the  intention 
of  the  person  making  the  arrest  thereby  to  place  the  accused  under  arrest  was  "  under- 
stood by  the  one  arrested,"  i.  e.,  the  accused.  (C.  M.  O.  7,  1911,  11-12.) 

"A  consciousness  of  restraint  in  the  party  arrested  or  detained  is  essential  to  con- 
stitute an  arrest."  (Herring  v.  Boyle,  1  C.  M.  &  R.,  377;  2  A.  &  E.  E.,  834,  note.) 
C.  M.  O.  7, 1911, 11-12.  See  also  BREAKING  ARREST,  14. 

11.  Definition  In  A.  G.  N.  43— "Arrest,"  as  used  in  A.  G.  N.  43,  does  not  relate  to 

preliminary  arrest  or  detention  of  accused  but  to  the  arrest  resulting  from  preferring 
charges  by  proper  authority  and  convening  of  court-martial.  (19  Op.  Atty.  Gen.,  472; 
U.  S.  v.  Smith,  197  U.  S.,  386.)  See  ARREST,  20,  39. 

12.  Same— Surrender  of  sword.    See  ARREST,  26,  39. 

13.  Deserters  from  Army.    See  DESERTERS,  2. 

14.  Deserters  from  naval  service.    See  DESERTERS,  2-6. 

15.  Drunken  enlisted  men— Arrest  of.    See  DRUNKENNESS,  6, 87,  90. 

16.  Duty— An  officer  or  enlisted  man  may  be  tried  by  general  court-martial  who  refuses, 

or  fails  to  use  his  utmost  exertions  to  detect,  apprehend,  and  bring  to  punishment 
all  offenders,  or  to  aid  all  persons  appointed  for  that  purpose.  (A.  G.  N.  8  (17).) 
File  26251,  Sec.  Navy,  July  7,  1913. 

17.  Evidence— Of  person  arresting  accused  should  be  corroborated  if  practicable.    0.  M.  O. 

7,  1911, 10-12.    See  also  File  2»202-1065;  EVIDENCE,  6,  33,  34. 

18.  Habeas  corpus— The  question  of  whether  or  not  a  commanding  officer  should  deliver 

up  a  person  in  the  naval  service  to  the  civil  authorities  is  completely  covered  in 
General  Order  No.  121,  September  17, 1914.  See  GENERAL  ORDER  No.  121,  Septem- 
ber 17, 1914,  11,12. 

19.  Same— Arrest  of  petitioner  after  discharge.    See  HABEAS  CORPUS,  2. 

20.  Insular  authorities — San  Juan,  P.  R.— By  service  of  process.    See  JURISDICTION,  108. 

21.  Leave  of  absence— Persons  arrested  by  civil  authorities  may  be  granted  leave  of 

absence.    See  GENERAL  ORDER  No.  121,  September  17, 1914, 14. 

22.  Midshipmen— Status  of,  while  under  arrest.    See  MIDSHIPMEN,  17. 

23.  Same— Midshipmen  arrested  by  civil  authorities.    C.  M.  0. 10, 1909. 

24.  Military  service— Deserters  from.    See  DESERTERS,  2. 

25.  Naval  service— Deserters  from.    See  DESERTERS.  2^6. 

26.  Officers— An  officer  need  only  be  required  to  deliver  his  sword  to  his  commanding 

officer  when  he  is  placed  under  arrest  at  the  time  the  charges  and  specifications  are 
given  him  preliminary  to  his  trial  by  a  general  court-martial,  and  such  procedure 
fa  not  necessary  or  proper  in  placing  an  officer  under  suspension.  File  26806-78, 
J.  A.  G.,  Feb.  13, 1911.  See  also  ARREST,  39. 


ARREST.  37 

27.  Same — Court-martial  orders  should  show  in  proper  cases  that  officers  were  released 

from  arrest  and  restored  to  duty.    See  ARREST,  9;  CONVENING  AUTHORITY,  4; 

28.  Same— Arres'ted  by  civil  authorities.    C.  M.  O.  24, 1886;  10, 1909;  7, 1914;  19, 1915,  8-9; 

G.  C.  M.  Rec.  31509. 

29.  Officer  serving  in  a  fleet.    File  27958-4,  Sec.  Navy,  Aug.  18, 1916. 

30.  Pay — During  unauthorized  absence  if  acquitted.    See  PAY,  1. 

31.  Prisoners,  court-martial.    See  JURISDICTION,  109-111.    See  also  GENERAL  ORDER  No. 

121,  September  17, 1914, 16,  23. 

32.  Record  of  proceedings— Should  show  that  accused  (officer)  in  proper  cases  was 

released  from  arrest  and  restored  to  duty.    C.  M.  O.  40, 1915.    See  also  C.  M.  O.  32, 
1915:  14, 1916,  where  this  was  not  done.    See  also  CONVENING  AUTHORITY,  4. 

33.  Resisting  arrest.   See  RESISTING  ARREST. 

34.  Reward  for  arrest  of  deserters.*  See  REWARDS. 

35.  Sword — Delivery  of  sword  to  commanding  officer  when   placed   under  arrest.    See 

ARREST,  26,  39. 

36.  Testimony — Of  person  arresting  accused  should  be  corroborated  if  practicable.    See 

ARREST,  17;  EVIDENCE,  6,33.  34. 

37.  Unjust  arrest— By  civil  authorities  of  a  petty  officer.    File  7657-330,  Sec.  Navy,  Dec. 

29. 1915. 

38  What  constitutes  arrest— Where  accused  was  charged  with  "breaking  arrest" 
and  the  evidence  showed  that  the  master  at  arms  had  merely  placed  his  hand  on 
the  accused  shoulder,  telling  him  that  he  was  under  arrest  and  to  stand  where  he 
was  while  the  master  at  arms  "  tried  to  stop  the  further  gathering  of  a  crowd  in 
the  street";  that  the  accused  apparently  did  not  comprehend  that  he  was  under 
arrest;  and  that  he  left  the  scene  of  the  affray,  but  voluntarily  returned  to  his  ship 
the  next  morning.  Held,  That  the  evidence  was  not  sufficient  to  show  that  the 
accused  had  "a  criminal  intent  to  evade  the  due  course  of  justice,"  and  that  the 
charge  of  "breaking  arrest"  was  not  proved.  File  26262-1065.  See  also  C.  M.  O. 
7, 1911,  4-13;  ARREST,  10;  BREAKING  ARREST,  14. 

39.  Same — Of  an  officer  preparatory  to  trial  by  general  court-martial — The  Attorney  Gen- 
eral has  construed  the  provisions  of  arts.  24,  43,  and  44  of  the  Articles  for  the  Gov- 
ernment of  the  Navy,  and  the  conclusions  announced  in  that  opinion  (19  Op.  Atty. 
Gen.  472)  have  been  approved  by  the  Supreme  Court  in  United  States  v.  Smith 
(197  U.  S.,  386).  The  Attorney  General  said  (ib.,  475):  Construing  articles  24, 43, and 
44  together,  it  is,  in  my  opinion,  clear  that  there  may  be  two  arrests— first,  an  arrest 
in  an  emergency  or  upon  the  discovery  of  the  alleged  wrongdoing, »with  a  view  to  a 
preliminary  examination,  and  if  necessary  the  formulation  and  specification  of 
charges;  and,  second,  in  the  language  of  article  44,  "an  arrest  for  trial."  I  think  it 
equally  clear  that  article  43,  providing  that  "the  accused  person  shall  be  furnished 
with  a  true  copy  of  the  charges,  with  the  specifications,  at  the  time  he  is  put 
under  arrest"  has  reference  to  the  second  and  formal  arrest  for  trial,  as  referred  to 
in  article  44.  File  26806-78,  J.  A.  G.,  Feb.  13, 1911,  p.  2.  See  also  ARREST,  26. 

ARSON.    See  CORPUS  DELICTI,  1,  2. 

ARTICLE  4893,  NAVAL  INSTRUCTIONS,  1913.    See  NAVAL  INSTRUCTIONS,  1913, 1- 
4893. 

ARTICLES  OF  WAR. 

1.  Army  Code.    C.  M.  O.  31, 1915,  9.    See  also  C.  M.  O.  49.  1915,  23. 

2.  Marine  Corps — Subject  to,  when  detached  by  order  of  the  President  for  service  with 

the  Army.  C.  M.  O.  31, 1915, 7-11.  See  also  MARINE  CORPS,  85-99;  MARINES  SERV- 
ING WITH  ARMY. 

3.  Sentence— It  has  been  held  by  the  Attorney  General  that  officers  of  the  Army  who 

are  authorized  to  convene  general  courts-martial  have  no  power  under  the  One  Hun- 
dred and  Twelfth  Article  of  War  to  mitigate  the  punishment  adjudged  by  such  courts 
after  final  approval  by  them  (19  Op.  Atty.  Gen.  106).  It  will  be  noted  in  this  con- 
nection that  this  article  of  war  does  not  in  express  terms  require  that  the  convening 
authority's  power  of  mitigation  be  exercised  on  revision  of  the  court's  proceedings, 
as  does  article  54  of  the  Articles  for  the  Government  of  the  Navy.  C.  M.  0. 1, 1912, 4. 

ASSAULT. 

1.  Aiding  and  abetting.    See  AIDING  AND  ABETTING,  1,  2. 

2.  "And  strike"— Found  not  proved.    See  AIDING  AND  ABETTING,  2. 


38  ASSAULT. 

3.  "Assault"  and  "maliciously"  found  not  proved — An  enlisted  man  was  tried  by 

general  court-martial  under  the  charges  (1)  "Using  obscene  language  toward  his 
superior  officer"  and  (2)  "Assaulting  and  striking  his  superior  officer  while  in  the 
execution  of  the  duties  of  his  office." 

The  specification  of  the  second  charge  alleged  that  the  accused  did  willfully  and 
maliciously  and  without  justifiable  cause  assault  and  strike  his  superior  officer,  who 
was  in  the  discharge  of  his  duties. 

The  court  found  the  specification  of  the  second  charge  proved  in  part,  proved 
except  the  words  "and  maliciously"  and  the  words  "assault  and,"  which  words  the 
court  found  not  proved. 

The  court  accordingly  found  the  accused  of  the  second  charge  "guilty  in  less  degree 
than  charged,"  guilty  of  "striking  his  superior  officer  while  in  the  execution  of  the 
duties  of  his  office." 

With  reference  to  the  finding  of  the  court  upon  the  second  charge  the  department 
is  of  opinion  that  such  is  inconsistent.  In  other  words,  the  court  goes  on  record  as 
being  of  the  opinion  that  the  accused  is  guilty  of  striking  but  not  assaulting  his 
superior  officer.  It  is  not  apparent  to  the  reviewing  authority  that  a  man  may 
intentionally  and  wrongfully  strike  another  person  without  assaulting  him. 

An  assault  is  an  attempt  or  even  an  offer  to  strike  the  person  of  another,  and  of 
course  includes  a  successful  attempt  or  an  actual  striking.  (1  Words  and  Phrases, 
523.) 

The  record  was  therefore  returned  to  the  court  for  tne  purpose  of  revising  its  find- 
ings and  sentence.  C.  M.  O.  30, 1910,  8-9. 

4.  "Assaulting  and"  found  not  proved — An  accused  was  charged  with  "assaulting 

and  striking  another  person  in  the  service,"  and  the  court  found  the  accused  guilty 
of  the  charge  except  the  words  "assaulting  and."  The  department  stated  in  part: 
"It  is  difficult  to  understand  how  the  accused  could  be  found  guilty  of  striking 
another  person  in  the  service  and  at  the  same  time  not  guilty  of  assaulting  such 
person.  There  may  be  an 'assault' without  a 'striking' or 'battery.'  An  assault 
is  included  in  every  battery.  Subject  to  the  above  remarks,  the  proceedings,  findings, 
and  sentence  of  the  court  in  this  case  are  approved,  and  the  sentence  will  be  duly 
executed."  C.  M.  O.  43,  1894,  3. 

5.  Battery— An  assault  is  included  in  every  battery.    C.  M.  O.  43, 1894,  3;  10, 1912,  6.    See 

also  BATTEKY.  1. 

6.  Same— Distinguished  from  assault.    See  BATTEKY,  1. 

7.  Definition — An  assault  is  "an  attempt  or  offer  with  force  and  violence  to  do  a  corporal 

hurt  to  another."  (Clark's  Criminal  Law,  224.)  2  Bishop  New  Criminal  Law,  para- 
graph 23,  states  that  "an  assault  is  an  unlawful  physical  force  partly  or  fully  put  in 
motion  creating  a  reasonable  apprehension  of  immediate  physical  injury  to  a  human 
being."  "  (a)  An  attempt  unlawfully  to  apply  the  least  actual  force  to  the  person  of 
another,  directly  or  indirectly;  (ft)  the  act  of  using  a  gesture  toward  another,  giving 
him  reasonable  grounds  to  believe  that  the  gesture  means  to  apply  such  actual  force 
to  his  person  as  aforesaid."  (Stephen's  Digest  of  Criminal  Law,  art.  241.)  In  State 
v.  Hampton  (63  N.  C.,  13)  it  was  held  that  a  turning  about  with  the  hand  clenched 
and  bent  at  one's  side,  but  npt  drawn  back,  and  saying  "  I  have  a  great  mind  to 
strike  you."  whereupon  prosecutor  walks  away  in  another  direction,  amounts  to  an 
offer  of  violence  and  constitutes,  therefore,  an  assault.  "It  is  very  generally  held  that 
where  a  threatening  act  is  done,  the  effect  of  which  is  to  create  a  well-grounded  appre- 
hension of  danger  and  cause  the  person  threatened  to  act  on  the  defensive  or  retreat, 
there  is  an  assault."  (Clark's  Cr.  Law,  pp.  226-227:  see  aim  3  Cyc.,  1025-1026.)  C.  M. 
0.8,1911,6-7. 

8.  Same — "An  offer  or  an  attempt  to  do  a  corporal  injury  to  another."    (United  States  v. 

Hand,  26  Fed.  Cas.  No.  15297.) 

"  An  assault  is  any  attempt  or  offer,  with  force  or  violence,  to  do  a  corporal  hurt  to 
another,  whether  from  malice  or  wantonness,  with  such  circumstances  as  denote, 
at  the  time,  an  intention  to  do  it,  coupled  with  a  present  ability  to  carry  such  inten- 
tion into  effect."  (3  Cyc.,  1020.)  C.  M.  O.  10, 1912,  6. 

9.  Same— An  actual  striking,  or  a  motion  of  striking,  which  creates  in  the  person  struck 

or  menaced  a  reasonable  apprehension  of  immediate  physical  injury,  constitutes 
assault,  even  though  the  person  striking  or  making  a  motion  as  if  to  strike,  does  so 
jokingly.  However,  if  jokingly  done,  and  if  the  court  so  believes,  such  may  be  con- 
sidered as  good  grounds  for  recommendation  to  clemency.  C.  M.  O.  8,  1911,  6-7. 
See  also  G.  C.  M.  Rec.  21453,  21454,  22369,  23409;  CLEMENCY,  6. 

10.  Drunkenness— As  a  defense.    See  ASSAULT,  17, 18;  DRUNKENNESS,  7-9;  INTENT,  5, 42. 

11.  Enlisted  man— Charged  with  "assault."    C.  M.  O.  33, 1893;  8, 1913,  5. 


ASSAULT.  39 

12.  Feint  to  strike  is  an  assault— The  accused  was  charged  with  "  Assaulting  and  striking 

a  sentinel,"  the  specification  thereunder  alleging  that  he  willfully  and  maliciously 
and  without  justifiable  cause  assaulted  and  struck  another  enlisted  man  who  was 
regularly  on  duty  as  a  sentinel.  The  evidence  clearly  established  the  fact  that  the 
accused  made  a  motion  withhis hand,  that  is,  "feint,  '  with  his  hand  partly  open,  at 
the  sentinel,  and  it  would  seem  that  the  accused  was  at  least  guilty  of  assault.  The 
court,  however,  acquitted  the  accused  and  the  department  returned  the  record  for 
a  reconsideration  of  the  finding  and  sentence.  The  court,  in  revision,  revoked  its 
former  finding  and  acquittal  and  found  the  accused  guilty  as  charged.  C.  M  O. 
o,  1911,  6-7. 

13.  Felonious  intentr— Accused  was  charged  with  "assaulting  and  attempting  to  kill 

another  person  in  the  Navy."  the  specification  alleging  that  the  accused  did  "while 
being  searched  as  a  preliminary  to  being  placed  in  confinement  for  drunkenness, 
assault  with  a  knife  and  attempt  to  kill"  the  chief  master-at-arms.  The  depart- 
ment disapproved  the  findings  on  this  charee  and  specification  because  the  felonious 
intent  on  the  part  of  the  accused  was  not  charged.  C.  M.  O.  15, 1895,  2.  See  in 
this  connection  ASSAULT,  14;  FELONIOUSLY,  2. 

14.  "Feloniously" — Not  necessary  to  allege  that  the  act  was  committed  feloniously  or 

with  intent  to  commit  a  felony  under  a  charge  of  "assaulting  with  a  deadly  weapon 
and  wounding  another  person  in  the  service."  C.  M.  O.  8, 1911,  5.  See  also  AS- 
SAULT, 24;  FELONIOUSLY,  2;  U.  S.  v.  Gallagher,  2  Paine,  447,  Fed.  Cas.  No.  15185. 

15.  General  Intent — In  the  offense  of  simple  assault,  the  general  Intent  to  commit  the  act 

is  presumed  and  evidence  to  show  drunkenness  when  the  act  was  committed  is  inad- 
missible and  does  not  form  ground  for  clemency.  C.  M.  O.  7,  1911,  13;  8, 1911,  4-6. 
See  also  DRUNKENNESS,  9. 

16.  Intent — In  simple  assault  the  general  intent  is  presumed  though  the  accused  was 

drunk  when  committing  act.    See  ASSAULT,  15;  DRUNKENNESS,  9;  INTENT,  5, 42. 

17.  Intent  to  kill — The  accused  was  tried  under  the  charges  (1)  assault  with  intent  to  kill 

ana  (2)  assaulting  with  a  deadly  weapon  and  wounding  another  person  in  the  service. 
It  was  noticed  that  the  specificacion  under  the  two  charges  is  identical  with  the 
exception  that  the  specification  of  the  charge  of  assault  with  intent  to  kill 
includes  the  words  "with  intent  to  kill  him,  the  said  *  *  *."  The  court 
found  that  specification  proved  except  the  words  quoted,  and  acquitted  the  accused 
of  that  charge,  but  found  the  specification  of  the  second  charge  proved  and  the 
accused  of  that  charge  guilty. 

A  careful  consideration  of  the  evidence  adduced  in  this  case  raises  a  serious  doubt 
as  to  the  propriety  of  the  acquittal.  It  was  clearlv  shown  that  the  accused,  while  in 
company  with  another  enlisted  man,  unjustifiably  and  without  warrant  viciously 
attacked  Private  *  *  *  with  a  deadly  weapon  (a  large  knife)  and,  after  having 
knocked  him  down,  while  calling  him  vile  names  inflicted  27  stab  wounds  upon 
*  *  *,  from  the  results  of  which  *  *  *  lifewasendangered.  These  facts  stand- 
ing unrebutted  would  undoubtedly  justify  a  finding  of  guilty  of  assault  with  intent 
to  kill.  The  rule  has  been  observed  in  the  Federal  courts,  that  in  a  case  of  assault 
mth  intent  to  kill,  the  act  itself,  when  proved,  offers  circumstantial  evidence  of  the 
specific  intent,  and  that  the  inference  mat  every  sane  man  intends  the  natural  and 
necessary  consequences  of  his  own  acts  is  entitled  to  weight,  but  that  the  intent  must 
ba  found  from  a  consideration  of  all  the  evidence.  (Acers  v»  U.  S.,  164  U.  S.,  388; 
U.  S.  v.  Riddle,  27  Fed.  Cas.,  16  162,  p.  809.) 

While  it  was  shown  that  the  accused  at  the  time  of  the  stabbing  was  under  the 
influence  of  intoxicating  liquor,  it  was  not  shown  that  he  was  so  far  intoxicated  as 
to  be  disabled  from  entertaining  the  degree  of  intent  required.  The  fact  that  one 
was  drunk  at  the  time  of  the  commission  of  the  act  will,  in  certain  cases ,  constitute  a 
good  defense,  but  such  is  a  matter  of  defense  only,  and  the  burden  of  proving  drunken- 
ness is  upon  the  party  claiming  such  to  be  the  fact.  "It  is  a  well-settled  general 
rule  that  voluntary  drunkenness  at  the  time  a  crime  was  committed  is  no  defense. 
If  a  person  voluntarily  drinks  and  becomes  intoxicated,  and  while  in  that  condition 
commits  an  act  which  would  be  a  crime  if  he  were  sober,  he  is  fully  responsible 
unless  his  drunkenness  had  resulted  in  insanity,  or  unless  it  rendered  him  incapable 
of  entertaining  a  specific  intent  which  is  an  essential  ingredient  of  the  offense." 
(12  Cyc.,  170.)  Drunkenness  will  be  a  defense  in  those  crimes  in  the  commission  of 
which  a  specific  intent  is  requisite,  but  it  must  be  shown  that  the  accused  "  was  by 
drink  so  entirely  deprived  of  his  reason  that  he  did  not  have  the  mental  capacity  to 
entertain  the  necessary  specific  intentrequiredtoconstitutethecrime"(12Cyc.,  172), 
and  the  burden  of  showing  such  to  have  been  the  case,  being  a  matter  of  defense 


40  ASSAULT. 

merely,  rests  upon  the  defendant.  A  resume1  of  the  evidence  as  to  the  drunkenness 
of  the  accused  at  the  time  of  the  stabbing  will,  it  is  believed,  fail  to  disclose  that  his 
drunkenness  had  resulted  "in  insanity"  or  that  he  was  "so  entirely  deprived  of  his 
reason  as  to  be  thereby  rendered  incapable  of  entertaining  the  specific  intent  requisite 
to  constitute  the  crime."  The  department  disapproved  the  finding  upon  the  first 
charge  and  the  specification  thereunder  and  approved  the  proceedings,  the  findings 
upon  the  second  charge  and  specification  thereunder  and  the  sentence.  ,C.  M.  O. 
19. 1912,  6-8.  See  also  DRUNKENNESS,  50. 

18.  Intoxication  is  no  defense  to  simple  assault — In  order  to  commit  the  offense  of 

simple  assault  it  is  not  necessary  to  entertain  the  specific  intent.  "  The  condition 
of  the  prisoner's  mind  not  being  an  element  of  the  offense  of  assault  and  battery, 
evidence  of  intoxication  at  the  time  of  the  alleged  offense  is  not  admissible."  (17  A. 
&  E.  Enc.  412.)  C.  M.  0. 8, 1911, 5.  See  also  ASSAULT,  17, 19;  DRUNKENNESS,  7-9. 
INTENT,  5.  42. 

19.  "Maliciously"  found  not  proved — Accused  was  charged  with  "assaulting  with  a 

deadly  weapon  and  wounding  another  person  in  the  United  States  naval  service1' 
and  "drunkenness  on  post. "  Court  found  him  guilty  of  the  second  charge,  found  the 
word  "maliciously"  not  proved  in  the  specification  under  the  first  charge,  and,  in 
lieu  of  that  charge,  found  him  guilty  of  wilfully  and  without  justifiable  cause  shooting 
and  wounding  another  person  in  the  naval  service.  The  only  explanation  for  the 
elimination  of  the  word  "maliciously"  would  appear  that  the  accused  was  drunk, 
while  a  sentry  on  post,  when  he  shot  and  wounded  the  other  man.  "A  drunken 
man  equally  with  a  sober  man  is  presumed  to  intend  his  acts."  (Clark's  Crim. 
Law,  71.)  Department  approved  the  proceedings,  findings,  and  sentence  Subject 
to  the  above  remarKS.  C.  M.  O.  7, 1911, 13-14.  See  also  MALICIOUSLY,  1. 

20.  Officer— Assaulting  a  civilian.    C.  M.  O.  26, 1914. 

The  Forms  of  Procedure,  1910,  p.  90,  furnishes  a  form  for  a  charge  of  "assault." 

21.  "Ruffianly  assault"— Committed  by  accused  upon  a  brother  officer.    G.  0. 157,  May 

24,  1870. 

22.  Sailmaker— Charged  with.    C.  M.  O.  90, 1897. 

23.  Specific  intent— Not  necessary  to  prove  the  specific  intent  hi  assault  and  battery. 

C.  M.  O.  8, 1911,  5. 

24.  Same— No  specific  intent  necessary  hi  order  to  complete  the  commission  of  the  assault 

and  wounding  under  a  charge  of  "assaulting  with  a  deadly  weapon  and  wounding 
another  person  in  the  service,"  the  specification  thereunder  alleging  that  the  accused 
did  "wilfully,  maliciously,  and  feloniously  and  without  justifiable  cause,  assault 
and  cut  with  a  knife  or  other  sharp  instrument"  another  person  in  the  service. 
It  is  not  necessary  to  allege  that  the  act  was  done  with  any  specific  intent,  and  in 
the  case  of  United  States  v.  Gallegher  (2  Paine  447;  Fed.  Cas.  No.  15, 185),  which  was 
a  case  of  assault  with  a  dangerous  weapon,  the  court  held  that  it  was  not  necessary 
to  charge  that  the  assault  was  committed  feloniously,  or  with  intent  to  commit  a 
felony.  C.  M.  O.  8,  1911.  4,  5. 

25.  Stabbing— Is  an  assault.    C.  M.  0. 10, 1912,  5-6.    See  also  ASSAULT,  28. 

26.  Striking— Is  an  assault.    C.  M.  O.  30, 1910,  8-9.    See  also  ASSAULT,  3.  4. 

27.  "Unjustifiable"— Found  not  proved  in  assault— Effect  of.    See  C.  M.  O.  30,  1910,  9: 

8,  1911.  7.  See  FINDINGS,  02  where  "without  justifiable  cause"  was  found  not 
proved. 

28.  "Wilfully  and  maliciously"  and  "assault  and"  not  proved— Accused  was  charged 

with  "assaulting  with  a  deadly  weapon  and  wounding  another  person,"  the  speci- 
fication thereunder  alleging  that  accused  did  "  wilfully  and  maliciously,  and  without 
justifiable  cause,  assault  and  stab  with  a  knife"  a  civilian.  The  court  found  this 
specification  proved  in  part,  proved  except  the  words  "  willfully  and  maliciously, 
and"  also,  except  the  words  "  assault  and  ";  all  of  which  words  were  found  not 
proved;  and  that  the  accused  was  of  this  charge  "guilty  in  a  less  degree  than 
charged,  guilty  of  wounding  another  person  with  a  deadly  weapon." 

With  respect  to  the  foregoing  finding  that  the  word  "assault"  was  found  not 
proved,  it  is  evident  that  the  court  was  not  aware  of  the  fact  that  the  battery,  i.  e., 
the  stabbing,  necessarily  included  an  assault. 

The  finding  would  indicate  that  the  court  believed  that  the  stabbing  or  cutting 
was  neither  consciously  nor  designedly  nor  knowingly  done  by  the  accused,  and 
also  that  it  was  done  without  legal  malice— i.  e.,  without  the  willful  purpose  to  stab. 
which  he  must  have  known  would  be  liable  to  injure  his  adversary.  It  is  not  believed 
that  such  a  finding  was  really  intended  by  the  court.  The  department  accordingly 
disapproved  the  finding  on  this  charge  and  specification.  C.  M.  O.  10, 1912,  5-7. 
See  also  C.  M.  0. 146, 1901,  4;  120, 1898, 1;  41, 1903;  WILFULLY  AND  MALICIOUSLY,  2. 


ASSAULT   WITH    A    DEADLY    WEAPON.  41 

ASSAULT  AND  BATTERY.    See  also  ASSAULT. 

1.  Gunner— Charged  with  "assault  and  battery,  in  violation   of  article"   8,    A.    G.    N. 

C.  M.  O.  96,  1907.    See  also  FORMS  OF  PROCEDURE,  p.  315;  NAVY  REGULATIONS, 
1913,  R-900  (  LIMITATIONS  TO  PUNISHMENT  UNDER  ARTICLE  8.) 

2.  Officer— Charged  as  above.    G.  C.  M.  Rec.  9505. 

ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  35, 1913. 

.ASSAULT  WITH  ATTEMPT  TO  COMMIT  SODOMY. 

1.  Enlisted  man— Charged  with.    G.  C.  M.  Rec.  30935. 

ASSAULT  WITH  INTENT  TO  KILL. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 19, 1912,  6. 

2.  Intent— Is  inferred  from  act.    C.  M.  O.  19, 1912,  7.    See  also  ASSAULT,  17. 

ASSAULTING  AND  STRIKING  A  SENTINEL. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  8, 1911,  6.    See  also  C.  M.  O.  1,  1917. 

2.  "Feint"— Is  an  assault.    C.  M.  O.  8, 1911,  6-7.    See  also  ASSAULT,  12. 

ASSAULTING  AND  STRIKING  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Warrant  officer— Charged  with.    C.  M.  O.  69. 1904;  212, 1901;  G.  C.  M.  Rec.  11583;  22718. 

2.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  O.  28, 1915. 

ASSAULTING  AND  STRIKING  ANOTHER  PERSON  IN  THE  SERVICE. 

1.  Warrant  officer— Charged  with.    C.  M.  O.  42, 1909;  43, 1909. 

ASSAULTING  AND  STRIKING  HIS  SUPERIOR  OFFICER  WHILE  IN  THE 
EXECUTION  OF  THE  DUTIES  OF  HIS  OFFICE. 

1.  "And  strike" — Found  not  proved  in  specification.    C.  M.  O.  55,  1910,  5-6.    See  also 

AIDING  AND  ABETTING,  2. 

2.  Enlisted  men— Charged  with.    C.  M.  O.  47, 1910, 8;  55, 1910, 5;  30, 1910, 8. 

3.  "Striking"— Is  an  assault.    C.  M.  O.  30, 1910,  8-9.    See  also  ASSAULT,  3,  4,  26. 

4.  Officer— Charged  with.    G.  C.  M.  Rec.  8363. 

ASSAULTING  AND  STRIKING  AN  ENLISTED  MAN  IN  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  0. 1, 1883. 

ASSAULTING  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  21,  1910,  10;  File  26251-12171,  Sec.  Navy, 
Aug.  10, 1916. 

ASSAULTING  ANOTHER  PERSON  IN  THE  SERVICE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  41, 1903,  2. 

2.  Gunner  -Charged  with.    G.  C.  M.  Rec.  11939. 

3.  Warrant  officer,  acting— Charged  with.    G.  C.  M.  Rec.  9077. 

ASSAULTING  WITH  A  DEADLY  WEAPON  AND  WOUNDING  ANOTHER  PER- 
SON IN  THE  NAVY. 
1.  Enlisted  man^-Charged  with.    C.  M.  O.  31,  1915,  6-7. 

ASSAULTING  WITH  A  DEADLY  WEAPON  AND  WOUNDING  ANOTHER  PER- 
SON IN  THE  SERVICE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  8, 1911,  4;  19, 1912,  6. 

ASSAULTING  WITH  A  DEADLY  WEAPON  HIS  SUPERIOR  OFFICER  WHILE 
IN  THE  EXECUTION  OF  THE  DUTIES  OF  HIS  OFFICE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  25, 1914,  3. 

ASSAULTING  WITH  A  DEADLY  WEAPON  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Warrant  officer— Charged  with.    C.  M.  O.  8, 1904. 

ASSAULTING  WITH  A  DEADLY  WEAPON  AND  WOUNDING  ANOTHER  PER- 
SON IN  THE  UNITED  STATES  NAVAL  SERVICE. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  7, 1911, 13;  8, 1911,  4;  10, 1912,  5;  19,  1912,  6. 

2.  "Feloniously  "—Not  necessary  to  allege.    C.  M.  O.  8, 1911,5.    See  also  ASSAULT,  14,  24. 

3.  Specific  Intent^Not  necessary.    C.  M.  O.  8,  1911,  5-6;  19,  1912,  6-8. 

4.  Stabbing— Is  an  assault.    C.  M.  O.  10, 1912,  5-6.    See  also  ASSAULT,  25,  28. 


42  ATTEMPTING   TO   DESERT. 

ASSIGNMENT  OF  WAGES. 

1.  Enlisted  man  of  Marine  Corps — Contrary  to  law — Where  an  assignment  of  wages  is 
made  by  an  enlisted  man  of  the  Marine  Corps  it  should  be  disregarded,  as  such  assign- 
ment is  contrary  to  law.  See  2  A.  and  E.  Enc.,  2d  Ed.,  1033;  File  8269-2,  M.  Ciand 
Bureau  Books  No.  55,  p.  9;  File  8269-2,  J.  A.  G.;  26251-797;  ALLOTMENTS,  4. 

ASSISTANT  GENERAL  STOREKEEPER. 

1.  Drunkenness  on  duty— Tried  by  general  court-martial.    C.  M.  O.  5,  1915. 

ASSISTANT  PAYMASTERS. 

1.  Appointment  of— Midshipmen  eligible  for.    See  MIDSHIPMEN,  18,83. 

2.  Same— Board  found  him  mentally,  morally,  and  physically  qualified,  but  in  view  of  his 

record  in  the  Army,  which  was  unsatisfactory,  reported  that  he  had  failed  to  estab- 
lish his  fitness  for  appointment.  Department  approved  the  finding.  File  26544- 
293,  Sec.  Navy,  1916. 

3.  Same— Age  of  appointment — The  invariable  practice  of  this  department  has  always 

been  to  construe  the  law  providing  for  appointment  of  assistant  paymasters  as  ex- 
cluding all  candidates  who  are  "more  than  twenty-six  years  of  age" — that  is  to  say, 
who  have  passed  their  twenty-sixth  birthday — and  not  as  including  candidates  who 
are  in  their  twenty-seventh  year.  This  practice  is  known  to  Congress,  and  has  received 
its  sanction  in  the  formof  special  legislation  authorizing  theappointment  of  a  candidate 
in  his  twenty-seventh  year.  The  same  practice  has  been  applied  to  the  laws  fixing 
the  age  limit  for  appointment  to  other  offices  in  the  Navy,  ana  is  supported  by  opinions 
of  the  Attorney  General  as  well  as  by  decisions  of  the  courts  involving  substan- 
tially the  same  question.  File  27223-12,  Sec.  Navy,  Jan.  28,  1915;  C.  M.  O.  6.  1915. 
15-16.  See  also  File  26544-301:8,  J.  A.  G.,  Feb.  23, 1916. 

4.  Instruction  of— Assistant  paymasters  sent  to  Auditor's  office  for  instruction.    C.  M.  O. 

17.  1915. 

5.  Promotion— Advanced  in  rank  but  not  in  grade.    See  COMMISSIONS,  9. 

6.  United  States  Marine  Corps— Clerks  to  Assistant  Paymasters.    See  PAYMASTER'S 

CLERKS,  MARINE  CORPS,  4,  5. 

ASSUMED  NAMES. 

1.  Enlistment  of  applicants— Under  assumed  names  properly  refused.  See  NAME, 
CHANGE  OF,  5. 

ATTACHES.    See  COMMERCIAL  ATTACHE;  NAVAL  ATTACHES;  RETIRED  OFFICERS,  13. 
ATTEMPT  TO  COMMIT  FRAUD.    C.  M.  O.  4, 1916.    See  also  FRAUD,  5. 
ATTEMPTED  BRIBERY.    See  BRIBERY,  ATTEMPTED. 

ATTEMPTED   SUICIDE. 

1.  Scandalous  conduct  tending  to  the  destruction  of  good  morals— Enlisted 
man  tried  by  general  court-martial.  C.  M.  O.  9,  1910,  3;  G.  C.  M.  Rec.  28659. 

ATTEMPTING     TO  ABSENT  HIMSELF   FROM  HIS    STATION  AND    DUTY 
WITHOUT  LEAVE. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 15, 1889. 

ATTEMPTING   TO   ASSAULT    HIS    SUPERIOR  OFFICER  WHILE    IN    THE 
EXECUTION  OF  HIS  OFFICE. 

1.  Gunner— Charged  with.    C.  M.  0. 1, 1893. 

ATTEMPTING  TO  ASSAULT  WITH  A  KNIFE  ANOTHER  PERSON  IN  THE 
SERVICE. 

1.  Officer— Charged  with.    C.  M.  O.  60, 1904. 

ATTEMPTING  TO  BRIBE  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  23, 1886. 

ATTEMPTING  TO  DESERT. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  7,  1881;  21,  1881;  54,  1882;  11,  1883;  33,  1886: 

46,  1888;  15,  1889;  54,  1890;  35,  1891;  36,  1891;  138,1896;  23,  1910,6;  G.  C.  M.  Rec.  382 
(1821). 

2.  Irregular— To  charge  an  accused  with  "attempting  to  desert,"  and  "absence  from  his 

station  and  duty  without  leave  from  proper  authority,"  for  same  period  of  unau- 
thorized absence  is  irregular.  Charge  should  be  "desertion,"  and  where  this  was 
not  done  the  findings  upon  the  second  charge  and  specification  thereunder  were 
disapproved.  C.  M.  O.  23, 1910, 6.  See  also  DESERTION,  20. 


ATTORNEY    GENEEAL.  43 

ATTEMPTING  TO  SMUGGLE  LIQUOR. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  31, 1888. 

ATTEMPTING  TO  STRIKE  HIS  SUPERIOR  OFFICER  WHILE  IN  THE   EXE- 
CUTION OF  HIS  OFFICE. 

1.  Master— Charged  with.    C.  M.  O.  21, 1882. 

ATTORNEY.   See  also  COUNSEL;  PRIVILEGE;  WORDS  AND  PHRASES. 

1.  Fees — For  Influencing  legislation.    See  DEBTS,  18;  LEGISLATION,  2. 

2.  Influencing  legislation.    See  DEBTS,  18;  LEGISLATION,  2. 

3.  Records  of  the  department— Examination  of.    See  RECORDS  OF  THE  DEPARTMENT,  6, 7. 

ATTORNEY  GENERAL.    See  also  DEPARTMENT  OF  JUSTICE. 

1.  Blank  forms — The  law  does  not  require  the  Attorney  General  to  examine  and  approve 

forms  of  obligations,  permits,  bonds,  and  affidavits  for  future  use  in  the  other  depart- 
ments. The  establishment  of  such  a  practice  would  require  his  entire  time  and 
necessitate  the  imagining  of  the  various  contingencies  in  which  their  validity  might 
in  future  be  questioned  and  passing  judgment  on  these  possible  future  problems. 
(20  Op.  Atty.  Gen.,  738.  £iU  see  27  Op.  Atty.  Gen.,  173;  File  3355-88,  Nov.  7, 
1906.) 

2.  Bound  by  the  decisions  of  United  States  courts  of  competent  jurisdiction— The 

Attorney  General  has  himself  repeatedly  held  that  he  is  bound  by  the  decisions  of 
the  United  States  courts  of  competent  jurisdiction.  C.  M.  O.  42,  1915,  12. 

3.  Changing  the  law — Questions  as  to  desirability  of  changing  the  law — On  May  27, 

1909,  the  Attorney  General  submitted  draft  of  a  bill  to  the  Secretary  of  the  Navy, 
with  suggestion  that  it  be  introduced  in  Congress  for  purpose  of  curing  defects  in  a 
law  considered  by  him  in  an  official  opinion.  File  22724-7  i.  But  see  19  Op.  Atty. 
Gen.,  598;  6  Op.  Atty.  Gen.,  432;  22  Op.  Atty.  Gen.,  512;  24  Op.  Atty.  Gen.,  69; 
25  Op.  Atty.  Gen.,  98. 

4.  Collision  of  naval  vessel — Notwithstanding  the  fact  that  the  damages  suffered  by  a 

naval  vessel  as  the  result  of  a  collision  is  small,  the  Department  of  Justice  will  take 
cognizance  of  the  matter,  and  instruct  the  United  States  Attorney  to  bring  suit 
against  a  private  vessel  responsible  for  the  loss.  File  2337-97;  199-97. 

5.  Comptroller  of  the  Treasury — Attorney  General's  jurisdiction  notcurtailed  by  powers 

given  Comptroller — The  Comptroller  of  the  Treasury  has  uniformly  recognized  the 
superior  facilities  of  the  Department  of  Justice  to  decide  important  questions  of  law, 
even  where  disbursements  are  involved;  while,  on  the  other  hand,  the  Attorney 
General  has  repeatedly  recognized  the  superior  qualifications  of  the  Comptroller  of 
the  Treasury  to  decide  certain  classes  of  questions  which  involve  the  use  of  appro- 
priations and  technical  questions  of  accounting.  (See  for  example  21  Op.  Atty.  Gen., 
405.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915.  See  also  REGULATIONS,  NAVY,  10. 

6.  Same — Upon  request  of  the  Secretary  01  the  Navy  the  Attorney  General  reviewed  and 

reversed  several  decisions  of  the  Comptroller  of  the  Treasury  concerning  the  legality 
of  a  Navy  regulation,  although  the  comptroller  declined  to  concur  in  a  reference  of 
the  matter  to  the  Attorney  General,  holding  that  his  decisions  were  final  and  con- 
clusive upon  the  executive  branch  of  the  Government.  (30  Op.  Atty.  Gen., ; 

21  Comp.  Dec.,  554,  357,  245.)    File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  19. 

7.  Department  declined  to  request  opinion — Upon  a  question  concerning  pay  of  the 

personnel  which  has  been  decided  by  the  Comptroller  of  the  Treasury,  as  the  Attorney 
General  has  held  that  he  will  not  render  an  opinion  upon  such  a  question  "except 
in  matters  of  great  importance  "  or  "without  being  advised  that  it  would  be  entirely 
agreeable"  to  the  comptroller  to  do  so.  File  26254-517:1,  Sec.  Navy,  Jan.  17,  1911, 
citing  20  Op.  Atty.  Gen.,  129. 

8.  District  attorney — To  assist  court  of  inquiry — Procedure  to  secure.    File  9608-44:3, 

Sec.  Navy,  Mar.  21, 1914. 

9.  Same — The  Attorney  General  will  not  authorize  the  appointment  of  a  person  to  assist 

a  United  States  district  attorney  in  the  preparation  of  a  case  unless  requested  by 
the  district  attorney.  File  536-4.  Oct.  18, 1907. 

10.  Embezzlement— Attorney  General's  opinion  with  reference  to.    C.  M.  O.  4, 1913;  39, 

1913;  25, 1916;  EMBEZZLEMENT,  20,  25;  28  Op.  Atty.  Gen.  2-6;  29  Op.  Atty.  Gen.  563. 

11.  Foreign  law — The  existence  of  a  foreign  law  is  a  question  of  fact  to  be  proved  by  com- 

petent evidence.  The  Attorney  General  can  not  give  an  opinion  as  to  the  law  of  a 
foreign  nation.  Whether  the  statements  of  a  foreign  ambassador  as  to  the  true 
construction  of  the  legislation  of  his  own  Government  and  the  practice  thereunder 
should  be  accepted  as  true  is  a  question  to  be  decided  by  the  Secretary  of  State 
and  not  by  the  Attorney  General.  See  File  26543-124,  Aug.  4,  1914. 


44  ATTORNEY    GENERAL. 

12.  Jurisdiction — The  Attorney  General  has  held  that  he  does  not  possess  the  power  to 

review  decisions  rendered  by  the  head  of  another  department,  lie  has  also  held 
that  he  has  no  jurisdiction  to  decide  questions  of  pay,  with  certain  exceptions. 
File  11130-23,  Sec.  Navy,  Feb.  25,  1914.  See  also  File  26253-391:1,  Sec.  Navy,  Aug. 
21, 1915. 

13.  Navy  Regulation,  validity  of— Whether  a  Navy  regulation  has  binding  force  as  law 

on  the  accounting  officers  of  the  Government  is  a  question  of  law  and  not  one  of 
accounting,  and  the  Attorney  General  will  render  an  opinion  thereon  upon  request 
of  the  Secretary  of  the  Navy,  although  the  Comptroller  of  the  Treasury  claims  his 
j  urisdiction  to  be  exclusive  and  declines  to  concur  in  the  submission  to  the  Attorney 

General.    (30  Op.  Atty.  Gen., ;  21  Comp.  Dec., 554,  560.)    See  File  26254-1451:11, 

Apr.  13, 1915.    See  also  REGULATIONS,  NAVY,  10. 

14.  Question  Judicially  determined— Opinion  of  Attorney  General  should  not  be  asked 

where  question  has  been  judicially  determined.    C.  M.  O.  42,  1915,  12. 

15.  Regulations — The  Attorney  General  can  not  be  required  to  interpret  executive  regu- 

lations. (18  Op.  Atty.  Gen.,  521;  20  Op.  Atty.  Gen., 049;  21  Op.  Atty.  Gen.,36.255; 
25  Op.  Atty.  Gen.,  183.)  The  Attorney  General,  however,  will  consider  and  has 
repeatedly  rendered  opinions  upon  the  question  whether  a  proposed  or  existing 
regulation  is  legal.  (20  Op.  Atty.  Gen.,  649;  22  Op.  Atty.  Gen.,  163;  29  Op.  Atty. 
Gen.,  264;  30  Op.  Atty.  Gen. ,  234.)  Even  the  fact  that  a  particular  regulation  relates 
to  the  compensation  of  Government  employees  does  not  oust  the  Attorney  General's 
jurisdiction  to  render  an  opinion  upon  the  question  of  its  legality.  (22  Op.  Atty. 
Gen.,  163.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 19L5,  p.  18. 

16.  Requests  for  opinions  of— ''When  an  opinion  is  requested  of  the  Department  of  Jus- 

tice on  behalf  of  the  head  of  another  executive  department,  the  facts  must  be  definitely 
formulated  and  clearly  stated  by  the  person  asking  the  opinion.  The  Attorney 
General  can  not  be  required  to  extract  a  finding  of  facts  from  correspondence  or 
reports."  (22  Op.  Atty.  Gen.,  342.)  "The  unvarying  practice  of  the  Attorney 
General,  from  the  foundation  of  the  Government,  has  been  to  require  a  succinct 
statement  of  the  facts  and  of  the  question  of  law  arising  thereupon  upon  which  an 
opinion  is  desired."  (20  Op.  Atty.  Gen.,  493.)  File  26254-1263,  Sec.  Navy,  Aug.  19, 
1913.  See  also  File  2G254-1<>(>1,  Sec.  Navy,  Nov.  5,  1914;  C.  M.  6.  10,  1915,  7. 

17.  Same — It  is  directed  that  all  requests  for  opinions  of  the  Attorney  General  be  accom- 

panied by  the  written  opinion  of  the  Judge  Advocate  General  or  the  Solicitor,  who 
will  also  prepare  the  request  for  the  Attorney  General's  opinion  in  accordance  with 
articles  R-117  (1)  and  R-134  (2),  Navy  Regulations,  1913.  File  22991:1,  Sec.  Navy, 
Jan.  15, 1915. 

In  accordance  with  a  rule  of  the  Department  of  Justice,  which  has  been  in  effect 
since  1906,  the  written  opinion  of  the  law  officer  of  the  Navy  Department  (Judge 
Advocate  General  or  the  Solicitor  as  the  case  may  be)  must  accompany  the  request 
of  the  Secretary  of  the  Navy  for  an  opinion  of  the  Attorney  General  on  any  subject. 
File  27223-12,  Sec.  Navy,  Jan.  28,  1915. 

A  question  which  is  not  a  "pending  question"  in  the  Navy  Department  is  not 
within  section  356,  Revised  Statutes,  which  authorizes  the  heads  of  departments  to 
require  opinions  of  the  Attorney  General.  File  27223-12,  Sec.  Navy,  Jan.  28,  1915; 
C.  M.  O.  6. 1915,  7. 

18.  Same— The  Attorney  General  has  requested  that  the  opinion  of  the  law  officer  of  a 

department  accompany  the  request  for  his  opinion  by  the  head  of  such  department; 
and  has  declined  to  render  an  opinion  upon  a  question  of  law  involving  the  per- 
sonnel of  the  Navy  until  an  opinion  on  such  question  has  been  prepared  by  the 
Judge  Advocate  General  of  the  Navy.  File  22724-16:1,  Jan.  25, 1911;  27223-12,  Jan. 
20, 1915. 

19.  Required  to  render  his  opinion— The  Attorney  General  is  required  by  R.  S.  356  to 

render  his  opinion  to  the  head  of  any  Executive  department  "on  any  question  of 
law  arising  in  the  administration  of  his  department."  File  26254-1451:11,  J.  A.  G., 
Apr.  12, 1915,  p.  18.  See  also  SECRETARY  OF  THE  NAVY,  39. 

20.  Reviewing  decisions  of  other  executive  departments — In  a  long  line  of  cases  extend- 

ing from  the  early  history  of  the  Government  to  recent  times,  the  Attorney  General 
has  consistently  declined  to  render  opinions,  even  when  requested  by  the  head  of  a 
department,  where  it  appears  that  the  officer  requesting  the  opinion  has  already 
decided  the  case,  and  requests  the  opinion  of  the  Attorney  General  merely  at  the 
instance  of  the  claimants,  or  interested  parties,  who  seek  to  have  the  existing  decision 
reversed.  File  27231-51:6,  Sec.  Navy,  July  15, 1915;  C.  M.  O.  27, 1915, 6-7. 


AUTOPSY.  45 

AUCTION. 

1.  Clothing— Of  former  enlisted  man.    File  27222-41,  Sec.  Navy,  July  1,  1916. 

AUCTIONEER. 

1.  Appointment  of,  and  commissions  for — To  make  sale  of  vessels  condemned  as 
prizes.  File  3977-98;  5933-98.  See  also  Revised  Statutes  4650. 

AUDITOR  FOR  THE  NAVY  DEPARTMENT. 

1.  Appeals — By  the  Secretary  of  the  Navy  from  auditor's  action  to  the  Comptroller  of 

the  Treasury.    File  26254-431:1;  26254-599;  26254-1003. 

2.  Assistant  paymasters — Sent  to  Auditor's  Office  for  instruction.    C.  M.  0. 17, 1915,  2. 

3.  Death  gratuity— Act  of  July  31, 1894  (28  Stat.  205-211)  quoted  and  discussed  in  reference 

to  payment  of  death  gratuities  and  power  of  auditor  to  review.  See  DEATH 
GRATUITY,  6,  23. 

4.  Same — Payment  of  death  gratuity  is  under  cognizance  of  Paymaster  General  of  the 

Navy.  See  DEATH  GRATUITY,  21-23. 

5.  Jurisdiction  of — The  Navy  Department  maintains  that  the  promotion  of  officers  of 

the  Navy  and  the  determination  of  all  questions  relating  thereto,  including  the 
qualification  of  the  officer,  the  existence  of  the  vacancy,  and  the  application  of 
section  1505  R.  S.,  are  matters  exclusively  within  the  jurisdiction  of  the  Navy 
Department,  whose  action  thereupon  is  not  subject  to  review  by  any  other  executive 
department  of  the  Government  or  office  thereof.  The  Navy  Department  accord- 
ingly would  not  furnish  the  Auditor  for  the  Navy  Department  with  certain  infor- 
mation which  he  requested  for  the  evident  purpose  of  reviewing  and  possibly  over- 
ruling the  action  taken  by  the  Secretary  of  the  Navy  in  the  case  presented.  File 
26260-347:0,  Sec.  Navy,  Oct.  20, 1909.  See  also  DEATH  GRATUITY,  23;  SECRETARY 
OF  THE  NAVY,  50. 

6.  Pay  erroneously  checked — Where  a  pay  officer  erroneously  checks  the  accounts  of  an 

enlisted  man  for  additional  pay  under  continuous  service  and  G.  O.  No.  34.  because 
of  alleged  unauthorized  extension  of  enlistment,  basing  his  action  upon  the  comp- 
troller's decision  of  June  13, 1913  (148  S.  &  A.  Memo.,  2653),  and  overlooking  that  this 
decision  was  expressly  modified  by  the  comptroller  in  his  decision  of  November  10. 
1913  (154  S.  &  A.  Memo.,  2919),  there  is  no  reason  why  the  man  should  be  required 
by  the  pay  officer  to  make  claim  on  the  auditor  for  the  amount  due  him,  which  was 
erroneously  checked  by  the  pay  officer,  since  the  extension  of  his  enlistment  for  one 
year  was  legal;  and  he  is,  therefore,  entitled  to  all  the  benefits  of  such  extension 
under  the  comptroller's  decision  last  cited.  File  7657-281,  J.  A.  G.,  Feb.  27, 1915; 
C.  M.  0. 10, 1915, 12. 

AUTHENTICATION  OF  COURTS  OF  INQUIRY.    See  COURTS  OF  INQUIEY,  4. 
AUTHENTICATION  OF  DOCUMENTS.    See  EVIDENCE,  DOCUMENTARY,  2,  3. 

AUTHENTICATION  OF  RECORDS  OF  PROCEEDINGS.    See  RECORDS  OF  PRO- 
CEEDINGS, 10-16. 

AUTHENTICATION  OF  SENTENCES. 

1.  Follow  immediately — "  It  is  considered  desirable  that  the  authentication  of  the  sentence 

should  follow  immediately  after  the  recording  thereof,"  and  it  is  particularly  undesir- 
able that  a  blank  space  of  practically  an  entire  page  be  left  between  the  recording  of 
the  sentence  and  the  authentication  "thereof.  C.  M.  O.  6,  1913,3.  SeeaUoG.  M.  O. 
78, 1905,  1;  COURT,  175;  MEMBERS  OF  COURTS-MARTIAL,  12,  48;  SUMMARY  COURTS- 
MARTIAL,  4. 

2.  Judge  advocate— Must  sign  sentence.    C.  M.  O.  30,  1900. 

3.  Members — May  be  ordered  to  sign.    See  MEMBERS  OF  COURTS-MARTIAL,  48. 

AUTOMOBILE. 

1.  Officer— Killed  while  speeding.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  87. 

2.  Same — Tried  by  general  court-martial  for  exceeding  speed  limit.    G.  C.  M.  Rec.  31509, 

p.  6  of  charges  and  specifications. 

3.  Taxation  by  States— Of  automobiles  owned  by  Federal  Government.    (28  Op.  Atty. 

Gen.,  604.)    File  28028-241. 

AUTOPSY. 

1.  Discussion  and  general  rules — For  discussion  of  the  general  rules  and  decisions  bearing 
upon  the  question  of  the  legality  of  making  autopsies  and  post-mortem  examinations 
where  there  are  and  where  there  are  not  circumstances  indicating  that  death  resulted 


46  AUTOPSY. 

from  violent  or  unlawful  means,  in  cases  where  the  law  requires  the  coroner  or  attend- 
ing physician  to  make  a  report  showing  the  cause  of  death,  cases  where  the  law  re- 
quires a  burial  certificate  to  be  issued  before  interment  of  the  remains,  etc.    See  File 
13673-1587  J.  A.  G. 
2.  Evidence— Disclosed  by  autopsy.    C.  M.  O.  128,  1905,  4. 

AVIATION. 

1.  Naval  Militia.    See  AIR  SERVICE;  AIRCRAFT;  NAVAL  MILITIA,  1. 

AWAITING  SENTENCE. 

1.  Prisoners— Pay  of.    See  PAY,  15. 

BAD-CONDUCT  DISCHARGE. 

1.  Ambiguous — Courts-martial  should  indicate  in  sentences  the  character  of  discharge  in 

order  to  avoid  ambiguity.    C.  M.  O.  49, 1910, 14-15.    See  also  DISCHARGE,  3. 

2.  Deck  courts— A  deck  court  is  not  authorized  to  adjudge  a  sentence  including  bad- 

conduct  discharge.    C.  M.  O.  24,  1909,  3;  1,  1914,  5;  35,  1915,  7. 

3.  Execution  of — Where  discharge  is  executed  before  sufficient  pay  has  accumulated  under 

the  provisions  of  H893  to  execute  total  loss  of  pay  adjudged  by  sentence,  the  bad- 
conduct  discharge  operates  itself  as  a  remission  of  the  balance.  C.  M.  O.  53, 1914,  C; 
22, 1915,  5.  See  also  DISCHARGE,  19,21;  SET  OFF,  1. 

4.  Foreign  countries — Summary  courts-martial  may  sentence  petty  officers  and  persons 

of  inferior  ratings  to  discharge  from  the  service  with  bad-conduct  discharge;  but  the 
sentence  shall  not  be  carried  into  effect  in  a  foreign  country.  See  File  26287-580; 
262S7-800;  A.  G.  N.  30. 

5.  General  court-martial — May  adjudge  a  sentence  including  bad-conduct  discharge. 

See  C.  M.  O.  92,  1895;  17,  1910,  7;  33,  1914,  4;  36,  1914,  2;  49  1914  1,  2;  3,  1916,  1. 

6.  Same — The  department  has  returned  cases  for  revision  in  which  bad-conduct  discharges 

have  been  adjudged  where  the  schedule  of  punishments  in  General  Order  No.  110 
prescribes  that  a  dishonorable  discharge  should  be  a  portion  of  the  sentence.  (See 
File  26251-11322,  Sec.  Navy,  Dec.  16.  1915;  G.  C.  M.  Rec.  31401.  See  also  File  26251- 
11343.)  C.  M.  O.  49, 1915. 11-12.  See  also  GENERAL  ORDER  No.  110,  July  27, 1914, 20. 

7.  Same— Should  adjudge  only  bad-conduct  and  dishonorable  discharges.    C.  M.  O.  49, 

1910. 14-15.    See  also  DISCHARGE,  3. 

8.  General  Order  No.  1 1O.    See  GENERAL  ORDER  No.  110,  July  27,  1914, 19. 

9.  Pay,  forfeiture  of — Remitted  by  the  execution  of  bad-conduct  discharge.    See  BAD- 

CONDUCT  DISCHARGE,  3;  PAY,  87. 

10.  Summary  courts-martial— In  every  case  where  a  sentence  involving  bad-conduct 

discharge  has  been  imposed,  it  shall  be  the  duty  of  the  convening  authority,  before 
acting  upon  the  proceedings,  to  spread  upon  the  record  a  brief  synopsis  of  the  service 
of  the  accused  and  of  the  offenses  committed  by  him  during  his  current  enlistment. 
C.  M.  O.  1, 1914,  4;  36, 1914,  3,  4. 

11.  Same— This  shall  be  done  even  when  the  bad-conduct  discharge  has  been  conditionally 

remitted  under  the  provisions  of  General  Order  No.  110.    C.  M.  O.  36, 1914,  3-4. 

BADGES,  CAMPAIGN.    See  CAMPAIGN  BADGES;  CHINA  CAMPAIGN  BADGES;  PHILIPPINE 
CAMPAIGN  BADGES. 

BADGES  OF  MOURNING. 

1.  Officer—  Failing  to  wear,  for  death  of  naval  officer  when  ordered— Tried  by  general 
court-martial.    C.  M.  O.  35, 1892. 

BAIL. 

1.  Enlisted  man — Who,  after  arrest  by  the  civil  authorities  while  on  leave  for  a  criminal 

offense,  is  granted  bail  and  returns  to  his  ship,  may  be  allowed  leave  of  absence  to 
appear  for  trial,  upon  an  official  statement  from  the  court  as  to  the  facts.  File  4496-7. 
See  also  File  5322,  May  23,  1906;  26254-45,  June  19,  1912;  GENERAL  ORDER  No.  121, 
Sept.  17, 1914, 14;  JURISDICTION,  8. 

2.  Same— An  enlisted  man  of  the  naval  service,  released  from  the  custody  of  the  civil 

authorities  on  bail,  who  reports  at  his  regular  station  for  duty,  is  not  to  be  deprived 
of  his  pay  after  so  reporting  simply  because,  due  solely  to  the  fact  that  he  was  on 
bail,  no  naval  duty  was  assigned  him.  (22  Comp.  Dec.,  374.  See  also  File  9663-31.) 
C.  M.  O.  3, 1916,  3.  See  also  File  26524-222:4. 


BATTERY.  47 

BALL    VXD  CHAIN. 

1.  Sentence  of  general  court-martial— Held  to  be  fatally  defective  and  set  aside.  G.  O. 
116,  March  23, 1869.  See  also  C.  M.  O.  29,  1890. 

BALL,  PLATING. 

1.  Sunday,  on — Navy  yards,  at.    See  SUNDAY  LAWS. 

BANDS. 

1.  Marine  Band— The  President  has  authority,  as  Commander  in  Chief,  to  order  Marine 

Band  to  Raleigh,  N.  C.  (File  3679-2),  and  to  detail  it  to  appropriate  duty  anywhere 
(File  4288-6,  April  22, 1907),  including  its  participation  in  a  charityfete.  (File  4288-4, 
April  18, 1907.)  See  also  PBESIDENT  OF  THE  UNITED  STATES,  4. 

2.  Same — "  The  most  famous  organization  of  the  kind  connected  with  the  public  establish- 

ment."   14  Sol.  27,  May  27,  1908  (14  J.  A.  G.,  27). 

3.  Same-;-The  Marine  Band  and  members  thereof  are  not  prohibited  from  engaging  in 

their  profession  in  civil  life  by  sec.  35  of  the  act  of  June  3,  1916  (39  Stat.,  188-189), 
without  remuneration,  even  though  this  may  possibly  interfere  to  some  extent  with 
the  employment  of  local  civilians.  File  4924-435,  J.  A.  G.,  June  20,  1916;  4850-219, 
J.  A.  G.,  Jan.,  1917.  See  also  C.  M.  O.  3,  1917,  6. 

4.  Navy  bands— Held:  That  the  term  "Navy  bands"  includes  the  U.  S.  Marine  Band, 

within  the  meaning  of  the  act  of  May  13,  1908  (35  Stat.,  127,  153);  14  Sol.  24,  May  27, 
1908  (14  J.  A.  G.,  27). 

5.  Same— The  act  of  May  13, 1908  (35  Stat.,  127, 153),  as  held  by  the  Attorney  General,  is  to 

be  "strictly  construed  "  (27  Op.  Atty.  Gen.,  90, 95),  and  certainly  can  not  be  held  to 
prohibit  any  member  of  a  Navy  band  from  instructing  amateur  bands,  as  the  giving 
of  lessons  or  instructions  does  not  constitute  "furnishing  music."  File  4850-210, 
J.  A.  G.,  April  22, 1916.  See  in  this  connection  the  Act  of  Aug.  29, 1916  (39  Stat.,  612). 

BANISHMENT. 

1.  Guam— In  the  case  of  an  enlisted  man  of  the  Marine  Corps  who  was  tried  by  the  civil 
courts  of  Guam  for  an  offense  and  sentenced  to  banishment  for  six  months  and  pay- 
ment of  costs,  it  was  recommended  "that  the  governor  of  the  island  of  Guam  be 
directed  to  issue  immediately  the  necessary  order  or  decree  abolishing  the  pun- 
ishment of  banishment  as  an  appropriate  sentence  to  be  adjudged  by  the  civil  courts 
of  said  island  in  the  cases  of  all  persons  in  the  naval  or  military  service  of  the  United 
States,"  and  "that  the  governor  be  directed,  under  the  paramount  authority  of  the 
department,  and  under  his  authority  to  grant  reprieves  and  pardons,  to  remit  that 
part  of  the  sentence  adjudged"  in  this  man's  case, so  far  as  it  relates  to  banishment. 
File  9351-976,  J.  A.  G.,  Dec.  3, 1910. 
2.  Subig  Bay  Naval  Reservation.  See  JURISDICTION,  96. 

BAPTISM,  CERTIFICATE  OF.    C.  M.  O.  217, 1902,  3. 

BAR  OF  TRIAL,  PLEA  IN.    See  JEOPARDY,  FOEMEE;  PLEA  IN  BAR. 

BARGE,  NAVY  COAL. 

1.  Capsized  and  lost  in  typhoon.    C.  M.  0. 7, 1915. 

BARRACKS,  MARINE.    See  MARINE  COEPS. 

BASEBALL  ON  SUNDAY  AT  NAVY  YARDS.    See  SUNDAY  LAWS. 

BASKET  BILGE  STRAINERS. 

1.  Chief  machinist— Installed  one  hi  main  feed  tank  improper  for  purpose.  C.  M.  O. 
36,  1915, 1-2. 

BATTALIONS. 

1.  Separate  or  detached— Convening  of  summary  courts-martial.  See  SUMMARY  COUBTS- 
MARTIAL,  22. 

BATTERY. 

1.  Definition—  "Two  offenses  against  the  person  and  personal  security,  usually  existing 
in  the  facts  of  cases  together,  and  practically  regarded  by  the  law  as  one;  are  assault 
and  battery.  A  battery  is  any  unlawful  beating,  or  other  wrongful  physical  violence 
or  constraint,  inflicted  on  a  human  being  without  his  consent;  an  assault  is  less  than 
a  battery,  where  the  violence  is  cut  short  before  actually  falling;  being  committed 
whenever  a  reasonable  apprehension  of  immediate  physical  injury,  from  a  force 
already  partly  or  fully  put  in  motion,  is  created.  An  assault  is  included  hi  every 
battery."  (1  Bish.  Cr.  L.,  sec.  548.) 

50756°— 17 4 


48  BATTERY. 

"A  battery,  or,  as  it  is  sometimes  called,  an  assault  and  battery,  is  an  unlawful 
touching  of  the  person  of  another  by  the  aggressor  himself,  or  by  any  other  substance 
put  in  motion  by  him."  (3  Cyc.,  1021.) 

"In  most  instances  a  battery  is  an  assault  which  has  traveled  to  the  accomplish- 
ment of  its  purpose;  being  the  substantive  offense,  to  commit  which  the  assault  is 
the  attempt.  The  distinction  appears  to  be  that  in  every  battery  there  is  an  assault. " 
(2  Bish.  Cr.  L.,  sec.  71.) 

2.  Drunkenness— As  a  defense.    C.  M.  O.8, 1911,  5.    See  also  ASSAULT,  17,18;  DRUNK- 

ENNESS,  7-9. 

3.  "Mere  battery."    C.  M.  O.  42, 1909, 10. 

BATTERIES,  STORAGE. 

1.  Submarines— Officer  tried  by  general  court-martial  for  faulty  inspection  of.  C.  M.  O. 
41,  1915. 

BATTLE. 

1.  Battle  signal  book — Officers  tried  by  general  court-martial  for  loss  of.    C.  M.  O.  7, 191C; 

8, 1916.    See  also  BOOKS,  6;  CONFIDENTIAL  PUBLICATIONS,  1, 3. 

2.  Commanding  officers — General  rule  to  observe  should  be  "  Fight  if  there  is  a  chance 

of  victory"  and  not  "Do  not  fight  if  there  is  a  chance  of  defeat."    G.  O.  68,  Dec.  6, 

1865. 

BATMAN. 

1.  Hospital  Corps,  ot— Tried  by  general  court-martial.    See  C.  M.  O.  29,  1880;  29,  1890; 

132,  1896. 

2.  Same— Enlistment  of.    U.  S.  Keg.  Navy  Cir.  No.  5,  June  1, 1877. 

BEER. 

1.  Specifications — Under  "Drunkenness"  alleged  that  accused  was  under  influence  of 
beer.  C.  M.  0. 20, 1888.  See  also  DBUNKENNESS,  10. 

BEGGING. 

1.  Enlisted  man— Tried  by  general  court-martial  under  charge  of  "Scandalous  conduct 
tending  to  the  destruction  of  good  morals."  C.  M.  O.  31, 1915,  2. 

BEING  DISRESPECTFUL  TO  HIS  SUPERIOR  OFFICER  IN  LANGUAGE  AND 
DEPORTMENT  WHILE  IN  THE  EXECUTION  OF  THE  DUTIES  OF  HIS 
OFFICE. 

1.  Officer— Charged  with.    C.  M.  0. 15, 1914, 1. 

BENEFICIARY.    See  DEATH  GKATUITY;  WILLS. 
BENEFICIARY  SLIPS.    See  DEATH  GRATUITY,  8. 
"BEST  EVIDENCE  RULE."    See  CABBON  COPIES. 

BETTER  EVIDENCE. 

1.  Court-martial— Should  call  for  it  if  it  is  available.    C.  M.  O.  28, 1909,  3;  37, 1909,  5,  9. 

BIBLE. 

1.  Acting  master's  mate — Dismissed  for  teaching  disbelief  in  Bible  and  God.  File 
26367-2,  J.  A.  G.,  July  8,  1909.  See  also  File  26256-111:2. 

BICHLORIDE  OF  MERCURY. 

1.  Death — Hospitalapprenticeadministeredtopatient(enlistedman)bymistake.  C. M. O. 
6, 1915, 12.  See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  74, 75. 

BILLS. 

1.  MessbUIs.   See  MESSES. 

BILLS  OF  EXCEPTIONS. 

1.  No  such  thing— As  a  bill  of  exceptions  in  naval  court-martial  proceedings.  C.  M.  O. 
31, 1911,  7.  See  also  EXCEPTIONS,  2, 3. 

BINDING  OF  COURT-MARTIAL  RECORDS. 

1.  Records  should  be  bound  properly— Forms  of  Procedure,  1910,  page  10,  provide  that 
"the  record,  before  being  forwarded  to  the  convening  authority,  must  have  all  the 
pages,  documents,  and  exhibits  securely  bound  together  by  at  least  two  through  fasten- 
ers at  the  top  margin,  and  care  shall  be  exercised  to  see  that  the  fasteners  are  through 


BINDING    OF   COURT-MARTIAL   RECORDS.  49 

every  such  page,  document,  and  exhibit."  Navy  Regulations  provide  that "  records 
of  proceedings  of  summary  courts-martial  shall  be  kept  and  made  up  in  the  manner 
hereinafter  prescribed  for  records  of  general  courts-martial  and  in  accordance  with  the 
instructions  contained  in  the  authorized  forms  of  procedure"  (Navy  Regulations,  1913, 
R-624),  and  they  also  provide  that  "the  record  of  all  naval  courts-martial"  shall 
leave  a  margin  at  the  top  of  each  leaf  of  2J  inches,  through  which  margin, "  the  leaves 
are  to  be  fastened."  (Navy  Regulations,  1913,  R-826.)  It  is,  therefore,  improper  to 
use  "clips"  instead  of  "  fasteners"  since  the  former  do  not  comply  with  the  instruc- 
tions above  outlined.  The  above  regulations  are  held  to  be  binding  upon  convening 
authorities  and  senior  officers  present  as  well  as  the  members  and  recorders  of  sum- 
mary courts-martial.  File  26287-2985,  J.  A.  G.,  Mar.  22, 1915;  C.  M.  0. 16, 1915.  See 
also  G.  C.  M.  Rec.  30485. 
2.  Same— Should  be  bound  at  top,  not  left,  margin.  C.  M.  O.  20, 1915,  5. 

BINNACLE  LIST.    See  ORDERS,  38. 

BIRTH. 

1.  Applicant  for  enlistment— Date  and  place  of.    See  OATHS,  39. 

BIRTH  CERTIFICATE. 

1.  Minor— Enlistment  of— Birth  certificate  as  proof  of  minority.  C.  M.  O.  6, 1915, 14.  See 
also  FRAU  DULENT  ENLISTMENT,  59. 

BLACKMAIL.    See  File  26251-12159,  Sec.  Navy,  Oct.  7, 1916;  LIBEL;  PRIVILEGE. 
BLANK  FORMS.    See  ATTORNEY  GENERAL,  1. 

BLOCKADES. 

1.  "  Blockading  vessels  and  cruisers  "—Instructions  for.  See  General  Order  No.  492. 
June  20, 1898.  See  also  File  4496-60,  June  15, 1907. 

BLOTTER. 

1.  Gouging  by  warrant  officer— A  warrant  officer  (gunner)  was  tried  by  general  court- 
martial  on  the  charges  of  "Conduct  to  the  prejudice  of  good  order  and  discipline" 
and  "Conduct  unbecoming  and  officer  and  a  gentleman,"  the  specifications  there- 
under alleging  that  he  did,  while  undergoing  a  written  professional  examination, 
knowingly,  wilfully,  corruptly,  fraudulently,  secretly,  and  without  the  knowledge 
or  permission  of  the  examining  board,  take  into  examining  room  four  blotters,  having 
written  and  copied  upon  them  facts  in  answer  to  questions  that  might  be  asked  him. 
He  was  found  guilty  and  dismissed.  File  26251-11982,  June  23,  1916;  G.  C.  M.  Rec. 
32300;  C.  M.  O.  20, 1916.  See  also  GOUGING;  MIDSHIPMEN,  22;  OFFICERS,  13. 

BOARDS. 

1.  Constitution  of— Certain  boards,  not  existing  or  convened  by  statutory  authority  as 

boards  of  survey  on  equipage  or  supplies,  may  consist  of  a  single  officer.  Boards  of 
medical  survey  may  consist  of  a  single  officer.  Some  statutory  boards,  consisting  of 
several  members,  may  act  when  but  one  member  is  present,  in  certain  exceptional 
cases,  by  act  of  July  25, 1882  (22  Stat.,  175).  Some  statutory  boards,  consisting  of  sev- 
eral members,  may  act  when  a  specified  quorum  is  present,  or  by  some  definite  num- 
ber, by  sections  2039.  2041,  2042,  4827.  5582  of  the  Revised  Statutes.  But  where  the 
language  of  the  statute  is  couched  in  the  plural  number,  more  than  one  member  of  the 
board  is  required  for  the  board  to  act.  But  the  intent  of  the  law  would  be  the  con- 
trolling principle  in  determining  whether  one  medical  officer  can  constitute  a  ' '  board 
of  naval  surgeons,"  and  it  is  not  believed  to  be  the  intent  of  the  law  that  one  medi- 
cal officer  can  constitute  a  board  as  provided  for  in  section  1493 ,  R.  S.  File  26521-30, 
J.  A.  G.,  Jan.  25, 1912.  See  also  BOARD  OF  MEDICAL  EXAMINERS,  2. 

2.  Members — It  is  not  necessary  that  all  the  members  of  a  court  or  board  sitting  at  a  navy 

yard  or  naval  station  should  first  report  to  the  commandant,  but  the  president  should 
do  so,  giving  the  commandant  a  list  of  the  officers  on  such  court  or  board.  File 
811-44. 

3.  Precedence  of  members.    See  PRECEDENCE,  10. 

4.  Statutory— Constitution  of.    See  BOARDS,  1. 

BOARD,  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY.    See  ACADEMIC  BOARD 
OP  THE  NAVAI.  ACADEMY. 

BOARDS,  EXAMINING.    See  MARINE  EXAMINING  BOARDS;  NAVAL  EXAMINING  BOARDS. 


50  BOARDS    OF    INVESTIGATION. 

BOARDS  OF  INQUEST. 

1.  Constitution  of— Boards  of  inquest  shall  be  composed  of  not  less  than  three  commis- 

sioned officers,  of  whom  one  at  least  shall  be  of  the  Medical  Corps.    (R-321.) 

2.  Judge  Advocate  General — Shall  revise  and  report  upon  the  legal  features  of  and  have 

recorded  the  proceedings  of  boards  of  inquest.    (R-134.) 

3.  Nature  of— The  proceedings  of  a  board  of  inquest  is  in  no  sense  a  trial  of  an  issue  or  of 

an  accused  person.  This  board  performs  no  real  judicial  function,  but  is  convened 
only  for  the  purpose  of  informing  the  department  in  a  preliminary  way  as  to  the  facts 
involved  in  the  inquiry.  C.  M.  0. 7, 1914, 6. 

The  evidence  adduced  before  a  board  of  inquest  in  the  Navy,  no  member  of  the 
board  or  any  witness  being  sworn  "  is  solely  for  the  information  of  the  Navy  Depart- 
ment and  for  the  purpose  of  enabling  the  department  to  decide  as  to  the  necessity 
and  expediency  of  further  action."  File  26250-839:4.  Sec.  Navy,  Oct.  9,  1916. 

4.  Oatbs  not  authorized— Neither  the  members  of  the  board  nor  any  person  that  may 

be  examined  may  be  sworn.    (R-321(3).)    File  26250-839:4,  Sec.  Navy,  Oct.  9, 1916. 

5.  Opinion  to  be  expressed  on  line  of  duty  and  misconduct— In  every  case  the  board 

shall  carefully  investigate  and  state  in  the  record,  whether  or  to  what  extent,  in  their 
opinion,  the  deatn  9f  the  individual  was  due  to  disease  contracted  or  casualties  or 
injuries  received  while  in  tne  line  of  his  duty  and  not  the  result  of  his  own  misconduct. 
In  all  cases  where  the  board  of  inquest  expresses  the  opinion  that  death  was  not  in 
the  line  of  duty,  the  board  will,  in  addition  to  such  opinion,  state  whether  or  not,  in 
its  opinion,  the  deceeased  met  his  death  as  the  result  of  his  own  misconduct.  C.  M.  O. 
42,  1915,  9.  See  also  File  26250-735,  Sec.  Navy,  Nov.  30,  1915;  26250-812,  Sec.  Navy, 
June  6, 1916. 

6.  Private  litigation — Where  a  copy  of  the  record  of  a  board  of  inquest  was  requested  for 

use  "  in  connection  with  possible  private  litigation  by '  the  parents  of  this  young  man ' 
against"  a  city  street  railway  company,  the  department  declined  to  grant  the 
request.  File  26250-839:2,  J.  A.  O.,  Sept.  27,  1916. 

7.  Revision — The  record  may  be  returned  to  the  board  for  such  revision  as  is  thought 

necessary. 

"BOARD  OF  INQUIRY." 

1.  Naval  Academy— The  act  of  April  9,  1906  (34  Stat.  104),  provides  that  the  truth  of  any 
issue  of  fact  raised  as  to  whether  the  continued  presence  of  any  midshipman  at  the 
Naval  Academy  is  contrary  to  the  best  interests  of  the  service, '" shall  be  determined 
by  a  board  of  inquiry  convened  by  the  Secretary  of  the  Navy  under  the  rules  and 
regulations  for  the  government  of  the  Navy."  C".  M.  O.  31,  1915,  11. 

BOARDS  OF  INSPECTION  AND  SURVEY  FOR  SHIPS.    C.  M.  O.  41,  1915. 

BOARDS  OF  INVESTIGATION. 

1.  Approval  or  disapproval— Neither  approval  or  disapproval  is  mandatory  upon  the 

department.    File  26283-522,  J.  A.  G.,  Feb.  12  1913. 

2.  Civil  employee — Under  the  law  and  regulations  all  boards  of  investigation  in  the  naval 

service  are  to  be  revised  and  reported  upon  by  the  Office  of  the  Judge  Advocate 
General.  Although  such  boards  may  be  convened  to  investigate  the  conduct  of  civil- 
ian employees  at  navy  yards,  they  should  be  reviewed  and  reported  upon  by  the 
Judge  Advocate  General,  not  only  because  of  the  express  provisions  of  law  and  regu- 
tion.  but  also  because  of  the  fact  that  the  commandant  of  the  yard,  or  other  persons 
in  the  Navy  may  be  responsible  for  the  irregularities  or  misconduct  of  civilian  em- 
ployees as  well  as  other  subordinates.  (See  C.  M.  O.  129,  1898.)  File  26283-789, 
1.  A.  G.,  May  17,  1915. 

3.  Collision — Board  inquiring  into  circumstances.    See  COLLISION,  3. 

4.  Counsel — A  midshipman  under  investigation  was  represented  by  counsel  of  his  own 

choice.    File  5252-73,  Oct.  2, 1915. 

5.  Evidence,  as— The  statement  made  by  an  accused  before  a  board  of  investigation ,  when 

such  statement  takes  the  complexion  of  an  admission  against  interest  or  a  confession , 
is  admissible  as  evidence  before  courts-martial.  G.  C.  M.  Rec.  No.  11279. 

6.  Same — A  court-martial  erred  in  excluding  evidence  of  the  statement  of  the  accused  to 

the  investigating  board,  but  the  court  properly  excluded  the  conclusions  of  that 
board  and  the  comments  thereon  of  the  commander  in  chief  and  the  Secretary  of  the 
Navy.  C.  M.  O.  101, 1903,  10. 

7.  Same— The  proceedings  of  the  court  were  regular,  but  an  error  was  made  in  not  admit- 

ting in  evidence  the  statements  made  by  the  accused  before  the  board  that  investi- 
gated the  circumstances  leading  to  the  present  trial.  Statements  of  this  character 
are  uniformly  admitted  by  courts-martial,  as,  for  instance,  the  statement  made  by 


BOARDS    OF    INVESTIGATION.  51 

an  accused  person,  a  deserter,  upon  investigation  by  the  commanding  officer  of  the 
vessel  on  board  or  which  he  is  delivered.  C.  M.  O.  43,  1906. 

8.  Same — The  judge  advocate  was  unable  to  locate  or  secure  two  witnesses  who  had  testi- 

fied under  oath  before  a  board  of  investigation  involving  the  subject  matter  for  which 
the  accused  was  undergoing  trial  by  general  court-martial.  The  judge  advocate, 
therefore,  offered  in  evidence  the  sworn  testimony  of  these  two  witnesses  before  this 
board  of  investigation.  Counsel  for  accused  objected  but  the  court  admitted  the 
evidence,  whereupon  counsel  for  accused  withdrew  the  objection.  G.  C.  M.  Rec. 
30684,  pp.  294,  306,  307. 

9.  False  statements — Before  a  board  of  investigation.    See  FALSE  STATEMENTS,  1. 

10.  Index  for — When  over  20  pages.    See  IXDEX,  3. 

11.  Judge  Advocate  General — Under  the  law  and  regulations  should  revise  and  report 

upon  all  boards  of  investigation.    See  BOARDS  OF  INVESTIGATION,  2. 

12.  Junior  officer— Investigating  senior.    See  File  20283-945,  Sec.  Navy,  Dec.  9, 1915. 

13.  Nature  of — A  board  of  investigation  is  convened  to  enable  those  in  authority  to  obtain 

accurate  information  in  order  that  responsibility  may  be  properly  placed,  if  any 
exists,  to  take  appropriate  action  in  the  premises,  and  when  strangers  are  involved 
to  protect  the  Government  from  unjust  claims.  This  can  not  be  done  unless  the 
board  performs  its  duty  with  great  care  and  thoughtfulness.  File  26835-525:1, 
Sec.  Navy,  Nov.  30, 1915. 

14.  Oaths.    See  OATHS,  7. 

15.  "One  officer"  boards  of  investigation — An  officer  was  tried  by  general  court-martial, 

but  before  final  action  was  taken  the  department  appointed  one  officer  as  a  board  to 
conduct  a  searching  investigation  into  all  matters  pertaining  to  the  case.  C.  M.  O. 
26,  1914,  2.  See  also  File  28478-15:1;  26543-151:1;  Bd.  of  Invest.  No.  5301;  6134;  File 
16711:3,  July  12,  1911;  28478-34:2,  July  7, 1916;  9351-1564,  Aug.  15, 1916;  R-316. 

16.  Reconvened — Because  of  the  "careless  manner"  in  which  the  investigation  was  con- 

ducted and  for  failing  "to  carry  out  provisions  of  the  precept,"  and  for  conducting 
the  investigation  in  a  "careless,"  "cursory,"  and  "perfunctory"  manner.  File 
26835-525:1,  Sec.  Navy,  Nov.  30, 1915. 

BOARDS  OF  MEDICAL  EXAMINERS. 

1.  Commander  in  chief— Not  authorized  to  make  changes  in.    See  BOARDS  OP  MEDICAL 

EXAMINERS,  5. 

2.  Constitution  of— The  board  of  naval  surgeons  prescribed  by  section  1493.  Revised 

Statutes,  should  consist  of  more  than  one  medical  officer.  While  in  a  number  of 
cases  the  convening  of  such  a  board  composed  of  but  a  single  officer  has  been 
sanctioned  on  grounds  of  convenience,  it  is  believed  that  the  plain  intent  of  Congress 
is  clearly  stated  to  be  that  such  a  board  should  consist  of  more  than  one  naval  surgeon. 
Had  Congress  intended  otherwise,  it  might  well  have  made  such  intent  evident. 
File  26521-30,  J.  A.  G.,  Jan.  25,  1912.  See  also  File  8006-1,  Sept.  6,  1907;  28687-14; 
J.  A.  G.,  Dec.  14, 1916,  p.  2;  BOARDS,  1. 

3.  Marine  Corps.   See  PROMOTION,  165. 

4.  Medical  Reserve  Corps— An  officer  of  the  Medical  Reserve  Corps  is  available  for  any 

naval  (military)  service  that  could  be  properly  assigned  to  any  naval  medical  officer, 
or,  as  designated  in  section  1493,  Revised  Statutes,  any  naval  surgeon,  provided  he  be 
upon  active  duty  and  the  duty  be  appropriate  to  his  grade,  and  there  be  no  specific 
restriction  in  law  prohibiting  such  assignment.  It  was  therefore  held.-  That  there  is 
no  restriction  upon  a  member  of  the  Medical  Reserve  Corps,  on  active  duty,  acting 
as  a  member  of  a  board  of  medical  examiners  where  duly  authorized.  File  26521-128. 
J.  A.  G.,  Oct.  20,  1915;  C.  M.  O.  35,  1915, 10. 

5.  Nature  of,  and  law  authorizing—  Section  1493  of  the  Revised  Statutes  provides  for 

examinations  by  boards  of  medical  examiners  as  follows:  "No  officer  shall  be  pro- 
moted to  a  higher  grade  on  the  active  list  of  the  Navy,  except  in  the  case  provided 
in  the  next  section  [physical  disqualification  occasioned  by  wounds  received  in  line 
of  duty],  until  he  has  been  examined  by  a  board  of  naval  surgeons  and  pronounced 
physically  qualified  to  perform  all  his  duties  at  sea."  Although  the  language  of  this 
section  of  the  Revised  Statutes  does  not  specifically  require  the  President,  or  the 
Secretary  acting  for  him,  to  sign  precepts  convening  boards  of  medical  examiners, 
the  fact  that  the  Secretary  of  the  Navy  does  sign  the  precept  convening  them 
has  become  such  an  established  custom  as  to  have  the  force  of  law.  In  view  of  the 
above  the  department  held  that  the  commander  in  chief  of  a  fleet  has  no  authority, 
nor  can  he  legally  be  granted  authority  by  the  department,  to  make  changes  in  the 
constitution  of  naval  examining  boards  and  boards  of  medical  examiners.  File 
28026-1080:2,  Sec.  Navy,  Aug.  4,  1915;  C.  M.  O.  29,  1915,  6. 


52  BOARDS    OF   MEDICAL    EXAMINERS. 

6.  Officer— Has  not  a  legal  right  to  be  ordered  before  a  board  of  medical  examiners  for 

promotion  instead  of  being  ordered  before  a  retiring  board,  where  he  is  due  for  pro- 
motion, but  the  records  of  the  department  in  his  case  are  such  as  to  establish  prima 
facie  his  physical  incapacity  for  active  duty.  C.  M.  O.  22, 1915,  10. 

7.  Same-^-  An  officer  is  ordered  before  a  board  of  medical  examiners  with  a  view  to  deter- 

mining his  physical  fitness  for  promotion;  in  other  words,  this  examination  is  made 
for  the  sole  purpose  of  establishing  whether  or  not  an  officer  is  qualified  for  the  duties 
of  a  higher  grade,  and  is  not.  and  never  was  intended  to  be,  a  useless  formality  which 
must  be  observed,  despite  the  fact  that  the  department's  records  already  fully  estab- 
lish that  the  officer  is  prima  facie  not  physically  qualified  for  active  duty.  File 
27231-63,  J.  A.  G.,  May  27,  1915. 

8.  "One  officer"  board.   See  BOARDS,  1;  BOARDS  OF  MEDICAL  EXAMINERS,  2. 

BOARDS  OF  OFFICERS  OF  THE  REGULAR  NAVY. 

1.  Naval  Militia— Physical  examination  prescribed  by  General  Order  No.   150.    See 
NAVAL  MILITIA,  29. 

BOARDS  OF  NAVAL  SURGEONS.    See  BOARDS  OF  MEDICAL  EXAMINERS. 

BOARDS  OF  SURVEY. 

1.  Lloyds — Officer  granted  permission  to  accept  fee.    See  MERCHANT  VESSELS,  4. 

2.  One  officer — May  consist  of  a  single  officer.    See  BOARDS,  1. 

BOARDS,  RETIRING.    See  MARINE  RETIRING  BOARDS;  NAVAL  RETIRING  BOARDS. 

BOARDING  CALLS. 

1.  Officer  drunk— Tried  by  general  court-martial.    C.  M.  O.  39, 1909. 

BOATSWAINS.    See  also  WARRANT  OFFICERS. 

1.  Acting  boatswain— Tried  by  general  court-martial.    C.  M.  O.  102, 1905. 

2.  Same — Sentence  of  dismissal  confirmed  by  the  President.    C.  M.  0. 102, 1905. 

3.  Chlel  boatswains.    See  CHIEF  BOATSWAINS. 

4.  Deck  courts— Boatswain  actually  in  command  of  a  naval  vessel  may  convene.    See 

DECK  COURTS,  4. 

5.  Deck  court  officer— Boatswain  not  authorized  to  act  as.    See  DECK  COURTS,  62. 

6.  General  courts-martial— Not  eligible  to  sit  as  member  of.    C.  M.  O.  7, 1914, 11. 

7.  Same— Boatswains  tried  by.    C.  M.  O.  11, 1915;  13, 1915. 

8.  Promotion  of— Suspension  from  promotion.    See  PROMOTION,  205. 

9.  Same — To  ensign.    See  APPOINTMENTS.  18. 

10.  Summary  courts-martial— Boatswain  actually  in  command  of  a  naval  vessel  may 

convene.    C.  M.  O.  6. 1915,  5.    See  also  SUMMARY  COURTS-MARTIAL,  7,  21. 

11.  Same— Not  eligible  to  sit  as  member  of.    C.  M.  O.  7, 1914, 11;  6, 1915,  5.    See  also  SUM- 

MARY COURTS-MARTIAL,  7,  21. 

BODIES,  DISPOSITION  OF.    See  DISPOSITION  OF  BODIES. 
BOILERS. 

1.  Explosions.    See  C.  M.  O.  36,  1915;  37,  1915;  38,  1915;  LINE  OF  DUTY  AND  MISCON- 

DUCT CONSTRUED,  6. 

2.  Naval  Instructions,  1913— It  is  provided  that  "should  any  difficulty  be  experienced  in 

feeding  a  boiler,  the  combustion  shall  be  checked  at  once,  by  closing  the  dampers 
and  ash-pan  doors  if  necessary,  and  steps  taken  to  find  the  cause."  (1-3117  (1).)  It  is 
further  provided  that,  "whenever  the  water  in  any  water-tube  boiler  falls  oelow  the 
lowest  try  cock  and  out  of  sight  in  the  gauge  glasses  the  fires  shall  be  hauled.  *  *  * 
No  attempt  shall  be  made  to  restore  the  normal  water  level  by  increasing  the  supply 
of  feed  water.  Fire  extinguishers,  if  fitted,  or  otherwise  a  fire  hose  or  wet  ashes, 
shall  be  used  to  quench  or  deaden  coal  fires  before  hauling  them.  (1-3118(2).) 
C.  M.  O.  37,  1915. 

3.  Tubes.    See  VESSELS,  1,  2. 
BOOKS. 

1.  Battle  signal  books— Officers  tried  by  general  court-martial  for  loss  of.    C.  M.  O.  7, 

1916;  8, 1916.    See  also  CONFIDENTIAL  PUBLICATIONS,  1. 

2.  Law  books.    See  LAW  BOOKS. 

3.  Library  book  lost— Checkage  of  pay.    See  PAY.  18. 

4.  Obscene  book.    Sending  througn  mails.    See  OBSCENE  BOOKS  AND  POSTAL  CARDS. 

5.  Officers  publishing— Permission  granted  to  publish  specific  articles  or  books  but 

must  first  be  submitted  to  the  department.    File  2479-3,  5, 1907. 

6.  Tactical  signal  book — Officer  tried  oy  general  court-martial  for  loss  of.    C.  M.  O.  12, 

1910.    See  also  BATTLE,  1;  CONFIDENTIAL  PUBLICATIONS,  1, 3. 


BREAKING    ARREST.  53 

BORROWING  MONET. 

1.  Master-at-anns — Charged  with  "Violation  of  a  lawful  regulation  issued  by  the  Sec- 

retary of  the  Navy,"  the  specifications  thereunder  alleging  that  accused  loaned 
money  at  interest  to  crew.  C.  M.  O.  21,  1910,  6.  See  also  LENDING  MONEY. 

2.  Officer  from  enlisted  man — Officer  borrowed  money  from  ward-room  steward, 

giving  his  commission  as  security.  Tried  by  general  court-martial  and  dismissed. 
G.  O.  150.  Feb.  11, 1870. 

3.  Warrant  officer  from  enlisted  men— Tried  by  general  court-martial  under  "Viola- 

tion of  a  lawful  order  issued  by  the  Secretary  of  the  Navy."  Lost  numbers  and 
publicly  reprimanded.  C.  M.  O.  7, 1909;  34, 1916,  2.  See  also  C.  M.  0. 121, 1907. 

BOUNTY. 

1.  Clothing  outfits — On  enlistment.    See  CLOTHING  OUTFITS. 

BOXING. 

1 .  Line  of  duty  and  misconduct.  See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  7-9. 

2.  Manslaughter.    See  MANSLAUGHTER,  13. 

BRACKETS. 

1.  Findings — Use  of  brackets  in  findings.    See  FINDINGS,  9. 

BREACH  OF  TRUST. 

1.  Never  trivial— A  breach  of  financial  trust  or  misuse  of  public  funds  is  never  trivial. 
C,  M.  O.  107, 1901,  2. 

BREAD  AND  WATER. 

1.  Confinement  on  bread  and  water — Summary  courts-martial  will  exercise  care  and 

discretion  in  resorting  to  this  punishment,  and  not  award  it  in  any  case  for  a  longer 
period,  consecutively,  than  five  days.  Cir.,  Sec.  Navy,  May  18.  1872;  R-619  (4). 

2.  General  courts-martial — May  impose  a  sentence  including  bread  and  water.    C.  M. 

O.  15,  1890;  26,  1893;  103,  1893;  1,  1914,  4;  9,  1914  3. 

3.  Severe  punishment — "The  frequency  with  which  punishment,  by  solitary  confine- 

ment on  bread  and  water,  or  on  diminished  rations,  is  imposed  by  the  sentences  of 
summary  courts-martial,  meets  with  the  disapprobation  of  the  department.  This 
punishment  is  a  severe  one;  and  it  was  not,  probably,  contemplated  by  the  law 
that  it  should  be  generally  resorted  to  for  the  correction  of  offenders.  It  is  believed 
that  other  authorized  punishments  will,  in  most  cases,  prove  more  effectual  than 
this.  In  cases  where  punishment  by  confinement  on  breaa  and  water  or  diminished 
rations  is  imposed  by  sentence  of  courts-martial,  that  portion  of  such  sentences  will 
be  disapproved  by  the  department."  G.  O.  287,  Feb.  3, 1882.  But  see  A.  G.  N.  30. 

4.  "Solitary"  confinement — An  enlisted  man  of  the  Navy  was  tried  by  summary  court- 

martial  and  sentenced  to  confinement  for  fifteen  days  on  bread  and  water,  with  full 
ration  every  third  day.  Since  sentences  involving  confinement  on  bread  and  water 
or  on  diminished  rations  are  illegal  unless  it  is  expressly  provided  that  such  con- 
finement is  to  be  "solitary"  (A.  G.  N.  30;  Navy  Regulations,  1913,  R-619  (1);  Forms 
of  Procedure,  1910,  p.  162;  C.  M.  0. 15, 1910,  p.  11),  the  department  directed  that  the 
sentence  be  set  aside.  File  26287-3017,  Sec.  Navy,  June  25, 1915;  C.  M.  O.  22, 1915,  5. 

5.  Same— Certificate  of  medical  officer.    See  CONFINEMENT,  5. 

BREAKING  ARREST.    See  also  ARREST. 

1 .  Articles  for  the  Goyernmen  t  of  the  Navy — "  Breaking  arrest "  is  not  specifically  men  • 

tioned  in  the  Articles  for  the  Government  of  the  Navy.    C.  M.  O.  7,  1911,  12. 

2.  Charge— The  offense  of  breaking  arrest  should  be  specified  under  the  charge, "  Breaking 

arrest."  While  the  offense  of  "breaking  arrest"  is  not  specifically  mentioned  in 
the  Articles  for  the  Government  of  the  Navy,  it  is  in  the  Limitation  of  Punishment 
prescribed  thereunder  by  tne  President.  (Navy  Regulations,  1913,  R-900,  page 
93  R;  Forms  of  Procedure,  1910,  p.  319.)  A  form  of  specifications  is  also  shown  under 
the  caption  "Breaking  Arrest"  on  page  92,  Forms  of  Procedure,  1910.  Instructions 
were  issued  in  Court-Martial  Order  No.  7,  1911,  p.  12  (Case  of  Bryhn)  to  the  effect 
that  "  while  a  form  of  specification  is  shown  under  the  caption  '  Breaking  arrest'  in 
the  'Forms  of  Procedure'  issued  by  the  department,  and  many  precedents  exist  for 
so  charging  this  offense,  it  would  seem  that  it  should  more  properly  be  charged  as 
'conduct  to  the  prejudice  of  good  order  and  discipline,' in  conformity  with  article  1705. 
paragraph  4,  of  the  Navy  Regulations,  1909  [Navy  Regulations,  1913,  R-712  (4)].'* 
See  File  26262-1065.  These  instructions,  however,  were  issued  prior  to  November 
9, 1911,  the  date  of  C.  N.  R.  No.  17,  which  added  the  offense  of  "  Breaking  arrest," 


54  BREAKING    ARREST. 

and  a  punishment  therefor,  to  the  Limitation  of  Punishment.  The  offense  of  "  Break- 
ing arrest"  should,  therefore,  be  specified  under  the  charge  of  "Breaking  arrest" 
and  not  under  "Conduct  to  the  prejudice  of  good  order  and  discipline."  See  C.  M.  O. 
7,  1911.  10-13.  See  also  ARKEST,  38. 

3.  Same— Where  an  enlisted  man  was  held  pending  investigation  of  a  report  of  miscon- 
duct against  him,  after  expiration  of  enlistment,  and  broke  arrest  and  deserted 
before  the  determination  of  the  advisability  of  his  trial  by  general  court-martial  for 
said  misconduct,  Held,  that  the  breaking  of  arrest  should  be  charged  as  "Conduct 
to  the  prejudice  of  good  order  and  discipline"  and  that,  although  such  occurred 
after  expiration  of  term  of  enlistment,  he  was  amenable  to  trial  therefor,  since  the 
misconduct  occurred  before  he  had  been  discharged.  An  enlistment  can  be  termi- 
nated by  death  or  discharge  only,  and  the  enlisted  man  can  not  himself  terminate 
the  enlistment.  File  2f  1251-5447,  J.  A.  O.,  Dec.  8, 1911.  See  also  BREAKING  AEREST,2. 

4.  "Conduct  to  tlie  prejudice  of  good  order  and  discipline" — "Breaking  arrest" 

should  not  bo  charged  under.    See  BREAKING  ARREST,  2. 

5.  Enlisted  men— Charged  with.    C.  M.  O.  208,  1902,  2;  209,  1902,  2;  23,  1910,  6;  7,  1911,  5; 

5,  1914  2;  14   1914, 1;  5,  1916, 1. 

6.  Escape— Breaking  arrest  was  designated  as  escape  at  common  law.    File  26202-1065, 

J.  A.  G.    Seealso  ESCAPE,  1,  2. 

6.  Midshipman—Charged  with.    G.  C.  M.  Rec.  25104. 

7.  Officer — Breaking  arrest  after  being  placed  under  arrest  by  Mexican  civil  authorities. 

C.  M.  O.  7, 1914. 

8.  Pharmacist— Charged  with.    C.  M.  O.  96, 1906, 1. 

9.  Proof  of— Before  the  charge  of  "Breaking  arrest"  can  be  proved,  it  must  appear  that 

the  accused  was  actually  placed  under  arrest.  C.  M.  O.  7, 1911,  10-12.  See  also  AR- 
REST, 38;  BREAKING  ARREST,  14. 

10.  Suspension  from  duty.    See  SUSPENSION  FROM  DUTY,  6. 

11.  Technical.   C.  M.  O.  7,  1911,  12. 

12.  Warrant  officer— Charged  with  breaking  arrest  under  "Conduct  to  the  prejudice  of 

good  order  and  discipline."    C.  M.  O.  17,  1912,  1.    But  see  BREAKING  ARREST,  2. 

13.  Same— Charged  with  "breaking  arrest."    C.  M.  O.  30, 1905. 

14.  What  constitutes— Where  accused  was  charged  with  "breaking  arrest"  and  evi- 

dence showed  that  the  master-at-arms  had  merely  placed  his  hand  on  the  accused's 
shoulder,  telling  him  that  he  was  under  arrest  and  to  stand  where  he  was  while 
tne  master-at-arms  "tried  to  stop  the  further  gathering  of  a  crowd  in  the  street "; 
that  the  accused  apparently  did  not  comprehend  that  he  was  under  arrest;  and  that 
he  left  the  scene  of  tne  affray  but  voluntarily  returned  to  his  ship  the  next  morn- 
ing, Held,  that  the  evidence  was  not  sufficient  to  show  that  the  accused  bad  a 
"criminal  intent  to  evade  the  due  course  of  justice"  and  that  the  charge  of  "break- 
ing arrest"  was  not  proved.  C.  M.  O.  7,  1911,  10-13.  See  also  File  26262-1005; 
ARREST,  10,  38. 

BRIBE. 

1.  Acting  ensign— Dismissed  by  general  court-martial  for  taking  $50  from  recruits  in 

return  for  using  his  influence  to  have  them  transferred.    G.  O.  46,  Jan.  5, 1865. 

2.  Enlisted  man— Charged  with  accepting  a  bribe  under  "Scandalous  conduct  tending 

to  the  destruction  of  good  morals."    C.  M.  O.  42, 1915,  5. 

BRIBERY.    See  C.  M.  O.  22, 1915,  3;  42,  1915,  5. 

BRIBERY,  ATTEMPTED. 

1.  Upon  person— In  naval  service,  by  civilians.    File  7657-142,  J.  A.  G.,  March  21,  1912. 

BRIBING  PATROL.    See  C.  M.  O.  22, 1915,  3. 

BRIEFS.    See  also  APPEALS. 

1.  Arguments— Oral  arguments  upon  the  admissibility  of  evidence  and  upon  inter- 

locutory proceedings  may  be  allowed,  but  shall  not  be  recorded;  briefs  of  such  argu- 
ments, if  prepared  at  his  own  expense  and  subsequently  submitted  to  the  court  by 
the  party  who  made  the  same  shall  be  appended  to  the  record.  C.  M.  O.  27, 1913, 
12;  31, 1914,  2;  49. 1915,  9.  Seealso  ARGUMENTS,  4. 

2.  Civilian  counsel— Briefs  submitted  to  department.    C.  M.  O.  129,  1898,  7;  4,  1914; 

7, 1914,  4. 

3.  Officers  acting  as  counsel— Briefs  submitted  to  department.    C.  M.  O.  6, 1915,  6. 


BUREAU   CHIEFS.  55 

BRIG  OP  RECEIVING  SHIP. 

1 .  Prisoners  In — Treatment  of,  while  awaiting  trial.    See  PRISONERS,  4. 

2.  "Sweat  box."    See  SWEAT  BOXES,  1. 

BRIGADES,  MARINE.    See  CONVENING  AUTHORITY,  27;  JURISDICTION,  77;  MARINE  CORPS, 
9,10. 

BRIGADIER  GENERAL. 

1.  Marine  Corps.    See  MARINE  CORPS,  11, 36;  PROMOTION,  16-18. 

BROMIDE  OF  POTASH  AND  CHLORAL. 

1.  Officer— Taken  by.    C.  M.  O.  56, 1880,  2. 

BROTHER. 

1.  Death  gratuity — Beneficiary.    See  DEATH  GRATUITY,  9. 

"BRUTAL"  HAZING.    See  HAZING,  6. 

BUGLER,  UNITED  STATES  NAVY. 

1.  General  court-martial— Tried  by.    C.  M.  O.    6,  1915,  8. 

BULLETIN  IN  COURT-MARTIAL  ORDERS. 

1.  Explanatory  note  concerning— The  following  digest  is  published  for  the  information 

of  the  service  in  general.  Heretofore  the  practice  has  been  to  limit  "Remarks"  in 
Court-Martial  Orders  to  questions  growing  out  of  the  records  of  courts-martial  which 
have  been  reviewed,  which  practice  will  be  continued.  However,  there  being 
many  important  decisions  and  opinions  involving  matters  of  law  and  precedent 
which  are  not  presented  in  the  review  of  court-martial  records,  it  has  been  decided 
to  publish  a  digest  thereof  as  a  "Bulletin"  in  the  monthly  Court-Martial  Orders. 
These  cases  will  be  separated  from  the  Court-Martial  "Remarks"  and  are  published 
in  the  Court-Martial  Orders  merely  as  a  matter  of  convenience;  they  are  not 
intended  to  have  the  full  force  and  effect  of  regulations  as  do  "Remarks"  forming  a 
part  of  Court-Martial  Orders  proper  under  article  R-901  (3),  Navy  Regulations, 
1913.  C.  M.  O.  6,  1915,  7. 

2.  Original  bulletin— In  Court-Martial  Order  No.  6,  1915,  7. 

3.  Regulations,  not— Cases  in  bulletin  have  not  the  force  of  regulations.    See  BULLETIN 

IN  COURT  MARTIAL  ORDERS,  1. 

BULLY. 

1.  Hazer— A  hazer  is  essentially  a  bully.    C.  M.  O.  12, 1913,  2. 

BURDEN  OF  PROOF. 

1.  Desertion.   C.  M.  O.  30, 1910, 10.    See  also  DESERTION,  103, 104. 

2.  Citizenship.    See  CITIZENSHIP,  6. 

3.  Drunkenness.    See  DRUNKENNESS,  11. 

4.  Embezzlement — Authorities  hold  that  accused  must  satisfactorily  explain  shortage. 

C.  M.  O.  39,  1913,  5.    See  also  EMBEZZLEMENT,  3,  24,  25. 

f>.  Same — When  shortage  is  proved,  paymaster  is  prima  facie  guilty  and  must  show  what 
has  become  of  the  missing  funds.    G.C.M.  Rec.  27899.   See  also  EMBEZZLEMENT,  27. 

6.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  12. 

7.  Promotion — Burden  of  proving  fitness  is  on  the  candidate.    See  PROMOTION,  19-21. 

8.  Shifting.    SeeC.M.  0.42,1909,  4;  49. 1910,6:30,1910, 10. 

9.  Theft.    C.  M.  0. 42, 1909,  4;  49, 1910,  6.    See  also  THEFT,  17. 

BURDEN  OF  ASCERTAINING  TIME  OF  EXPIRATION   OF  LEAVE  OR  LIB- 
ERTY.   See  LEAVE  OF  ABSENCE,  3. 

BUREAU. 

1.  Marine  Corps— Not  a  bureau.    See  MARINE  CORPS,  12. 

BUREAU  CHD3FS. 

1 .  Civil  War  service.    See  BUREAU  CHIEFS,  8, 10. 

2.  Construction  and  Repair.    See  BUREAU  CHIEFS,  9. 

3.  Depositions.    See  DEPOSITIONS,  4. 

4.  Medicine  and  Surgery.    See  BUREAU  CHIEFS,  9;  BUREAU  OF  MEDICINE  AND  SURGERY. 

5.  Navigation.    See  BUREAU  CHIEFS,  8, 10  BUREAU  OF  NAVIGATION. 
0.  Ordnance.    See  BUREAU  CHIEFS,  10. 


56  BUREAU   CHIEFS. 

7.  Promotion  examinations — Of  chiefs  of  bureaus  while  serving  as  such — For  enumera- 

tion of  those  cases  of  officers  examined  for  promotion  while  serving  as  chiefs  of  bureaus. 
See  15  J.  A.  G.,  292,  May  31.  1911. 

8.  Rank  and  commissions  for — Under  appropriation  act  of  June  24, 1910  (36  Stat.,  605)— 

TheChief  of  the  Bureau  of  Supplies  and  Accounts  should  be  given  a  new  commission 
as  paymaster  general  with  the  rank  of  commodore  from  the  date  of  his  appointment 
as  such  chief  of  bureau. 

The  Chief  of  the  Bureau  of  Navigation  should  receive  a  new  commission  with  the 
rank  of  rear  admiral  from  June  24, 1910,  upon  the  ground  of  his  having  had  Civil  War 
service. 

That  the  advancement  and  commissioning  of  the  Chief  of  the  Bureau  of  Navigation 
with  the  rank  of  rear  admiral  would  create  a  vacancy  in  the  grade  of  captain  in  such 
sense  as  to  authorize  the  promotion  of  an  officer  to  fill  the  vacancy . 

The  commissioning  of  the  Chief  of  the  Bureau  of  Navigation  as  a  rear  admiral  would 
operate  to  make  him  an  additional  number  on  the  active  list  in  the  already  existing 
grade  of  rear  admiral. 

The  Chief  of  the  Bureau  of  Navigation  will  continue  to  be  an  additional  number  so 
long  as  he  remaitis  on  the  active  list. 

The  Chief  of  the  Bureau  of  Navigation  should  be  advanced  to  the  upper  nine  in  the 
grade  of  rear  admiral  with  the  regular  number  next  following  him  on  the  list  of  officers 
of  that  grade.  [But  see  ADDITIONAL  NUMBERS,  1 .] 

The  Chief  of  the  Bureau  of  Navigation  is  not  required  to  be  examined  for  his  ad- 
vancement to  the  grade  of  rear  admiral  in  accordance  with  the  provisions  of  sections 
1493  and  1496  of  the  Revised  Statutes. 

The  advancement  in  numbers  and  precedence  of  the  Chief  of  the  Bureau  of  Navi- 
gation will  be  permanent.  File  22724-16:1.  J.  A.  G.,  Feb.  13,  1911.  See  also  File 
4649-02,  July  17,  1902;  22724-16:3;  22724-18,  Dec.  4.  6,  1911,  and  Jan.  3,  1912;  5038-19, 
Feb.  29, 1912;  28025-385:5.  Oct.  30, 1915;  22724-33,  J.  A.  G.,  Aug.  22, 1916. 

9.  Same— Section  1473  of  the  Revised  Statutes  is  the  only  statute  providing  as  to  rank 

upon  retirement  for  age  or  length  of  service  in  the  cases  of  the  Chiefs  of  the  Bureaus 
of  Medicine  and  Surgery,  Supplias  and  Accounts  (formerly  Provisions  and  Clothing), 
Steam  Engineering,  and  Construction  and  Repairs.  Other  bureau  chiefs  are  gov- 
erned bv  the  provisions  of  sections  1443,  1444,  and  1457  of  the  Revised  Statutes  and 
act  of  May  13. 1908  (35  Stat.,  128).  File  22724-16:1,  J.  A.  G.,  Apr.  24, 1911. 

10.  Same— TheChief  of  the  Bureau  of  Navigation  and  the  Chief  of  the  Bureau  of  Ordnance 

are  not  entitled  (act  of  June  24, 1910,  36  Stat.,  605)  to  be  retired  for  age  or  length  of 
service  with  rank  of  such  bureau  chief  unless  such  officer  had  Civil  War  service.  File 
22724-16:1,  J.  A.  G.,  Apr.  24, 1911. 

11.  Same — The  clause  relating  to  chiefs  of  bureaus  in  the  act  of  June  24, 1910  (36  Stat.,  605), 

was  not  meant  to  afiect  anv  officers  subordinate  to  such  chiefs  of  bureaus.  File 
5038-18  and  19,  J.  A.  G.,  Feb".  29, 1912. 

12.  Same— Under  the  provisions  of  the  clause  in  the  act  of  June  24, 1910  (36  Stat.,  605.  607), 

it  is  necessary  to  determine  in  the  case  of  each  chief  of  bureau  just  what  would  be  t he 
rank  and  title  of  the  particular  officer  if  he  were  now  retired  for  age  or  for  length  of 
service.  File  22724-16:1,  J.  A.  G.,  Apr.  24,  1911. 

13.  Same — When  a  chief  of  a  bureau  is  given  a  commission  as  such  with  the  rank  of  rear 

admiral  under  the  act  of  June  24, 1910  (36  Stat.,  605),  such  commission  does  not  create 
a  vacancy  in  the  grade  which  said  chief  of  bureau  holds  when  made  and  commis- 
sioned as  chief  of  bureau.  File  5038-18  and  19,  J.  A.  G..  Feb.  29, 1912. 

14.  Retired  officers— As  chiefs  of  bureaus.    File  21,  Nov.  25, 1902.    See  also  File  21-5,  Dec. 

11,1907,  Op.  Sol.;  15315-5. 

15.  Retirement  of.    See  RETIREMENT  OF  OFFICERS,  14. 

16.  Status  of— A  chief  of  a  bureau  has  a  dual  status:  (1)  He  occupies  a  position  of  an  officer 

of  the  Navy  of  the  grade  from  which  he  is  appointed  as  chief  of  bureau,  or  of  the  grade 
to  which  he  may  be  promoted  thereafter,  and  holds  a  commission  as  of  such  grade. 
(2)  He  also  temporarily  occupjes  a  separate  and  distinct  office  as  chief  of  bureau, 
and  holds  a  separate  commission  as  such  for  the  term  of  four  years.  15  J.  A.  G., 
290,  May  31, 1911. 

17.  Steam  Engineering'    See  BUREAU  CHIEFS,  9. 

18.  Supplies  and  Accounts.    See  BUREAU  CHIEFS,  9;  BUREAU  OF  SUPPLIES  AND  AC- 

COUNTS. 

19.  Titles— Brief  history  of  controversy  regarding  titles.    13  J.  A.  G.  385,  Nov.  29, 1904;   13 

J.  A.  G.,393. 


BYSTANDER.  57 

BUREAU  OF  MEDICINE  AND  SURGERY.  See  also  HOSPITALS;  HOSPITAL  FUND; 
HOSPITAL  SHIPS;  MEDICAL  ATTENDANCE;  MEDICAL  OFFICERS  OF  THE  NAVY;  MEDI- 
CAL RECORDS;  MEDICAL  RESERVE  CORPS  OF  THE  NAVY. 

1.  Chief  of — Supplying  enlisted  men's  records.    See  MEDICAL  RECORDS,  3-6. 

2.  Health  records.    See  MEDICAL  RECORDS,  1.  ... 

3.  Hospitals.    See  GOVERNMENT  HOSPITAL  FOR  THE  INSANE;  HOSPITALS. 

4.  Hospital  ships.    See  HOSPITAL  SHIPS. 

5.  Medical  treatment— Of  officers'  families.    See  FAMILIES;  MEDICAL  ATTENDANCE. 

6.  Nurse  Corps — "  United  States  citizenship  will  be  a  required  qualification  for  admis- 

sion to  the  Navy  Nurse  Corps  "  and  one  who  is  not  a  citizen  of  the  United  States  "  is 
ineligible  for  appointment  at  this  time."  File  26252-110,  Sec.  Navy,  Jan.  6,  1917. 
See  also  MEDICAL  OFFICERS  OF  THE  NAVY,  11. 

BUREAU  OF  NAVIGATION. 

1.  Court-martial  orders — Indorsements  published  in  C.  M.  O.  41,  1915,  4;  43,  1915;  44, 

1915;  6,  1916,  2;  12,  1916,  2;  19,  1916,  2;  26,  1916,  4;  27,  1916,  5;  28,  1916;  31, 1916;  38, 
1916. 

2.  Same — All  court-martial  orders,  after  printing,  shall  be  distributed  by.    (R-602.) 

3.  Courts  of  inquiry  records— Referred  to.    See  BUREAU  OF  NAVIGATION,  7. 

4.  General  court-martial  records — Referred  to.    See  BUREAU  OF  NAVIGATION,  7. 

5.  Indorsement  of — As  evidence.    See  INDORSEMENTS,  2. 

6.  Orders  of— Not  sufficient  to  make  an  officer  a  member  or  a  judge  advocate  of  a  general 

court-martial.    See  COURT,  37,  38,  40. 

7.  Questions  of  discipline — Questions  of  naval  discipline,  rewards,  and  punishments 

shall  be  submitted  by  this  bureau  for  the  action  of  the  Secretary  of  the  Navy.  The 
records  of  all  general  courts-martial  and  courts  of  inquiry  involving  the  personnel 
of  the  Navy  shall,  before  final  action,  be  referred  to  this  bureau  for  comment  as  to 
disciplinary  features.  (R-132.) 

8.  Rank  and  commission  for  chief  of.    See  BUREAU  CHIEFS,  8, 10. 

BUREAU  OF  ORDNANCE. 

1.  Rank  and  commission— For  chief  of.    See  BUREAU  CHIEFS,  10. 

BUREAU  OF  STEAM  ENGINEERING. 

1.  Inspection  officer— Tried  by  general  court-martial  for  not  properly  informing  bureau. 

C.  M.  O.  41, 1915. 

2.  Rank  and  commission— For  chief  of  bureau.    See  BUREAU  CHIEFS,  9. 

BUREAU  OF  SUPPLIES  AND  ACCOUNTS. 

1.  Court-martial  order— Remarks  published  in.    C.  M.  0. 17, 1915,  2. 

2.  Rank  and  commission— For  chief  of.    See  BUREAU  CHIEFS,  9. 

BURGLARY. 

1.  Attempted  burglary.    C.  M.  0. 14, 1908, 3. 

2.  Corpus  delicti.    See  CORPUS  DELICTI,  2. 

3.  Drunkenness— There  are  crimes  which  can  be  consummated  only  where  a  peculiar  and 

distinctive  intent,  or  a  conscious  deliberation  or  premeditation,  has  concurred  with 
the  act,  which  could  not  well  be  possessed  or  entertained  by  an  intoxicated  person. 
Thus  in  cases  of  such  offenses  as  larceny,  robbery,  or  burglary,  which  require  for 
their  commission  a  certain  specific  intent,  evidence  of  dninkenness  is  admissible  as 
indicating  whether  the  offender  was  capable  of  entertaining  this  intent,  or  whether 
the  act  was  anything  more  than  a  mere  battery,  trespass,  or  mistake.  C.  M.  O. 
42, 1909, 10.  See  also  C.  M.  O.  8, 1911, 5;  DRUNKENNESS,  49;  INTENT,  2.5. 

4.  Enlisted  man— Charged  with.    C.  M.  O.  13,  1916,  1;  G.  C.  M.  Rec.  29071. 

5.  Same — Charged  with  "  Burglary  in  violation  of  the  Twenty-second  Article  for  the  Gov- 

ernment of  the  Navy."    C.  M.  O.  7,  1890. 

6.  Specific  Intent—  Required.    C.  M.  O.  42, 1909, 10;  8, 1911,  5.    See  also  BURGLARY,  3. 

7.  Time— As  essence  of,  material.    File  26287-1125,  J.  A.  G.,  March  19, 1912. 

BURIAL  CERTIFICATE.    See  AUTOPSY,  1. 
BURIAL  EXPENSES.    See  DEATH  .GRATUITY,  21. 

BYSTANDER. 

1.  Killed — When  member  of  guard  shot  at  escaping  prisoner.    C.  M.  O.  49,  1915,  12.    See 
also  MANSLAUGHTER,  9. 


58  CARELESSNESS    IN    OBEYING    ORDERS. 

CADETS,  NAVAL.     See  NAVAL  CADETS. 

CALLS  FOB  EVIDENCE  BY  COURT  OF  CLAIMS.    See  COURT  OF  CLAM. 

CAMPAIGNS. 

1 .  China.   See  CHINA  CAMPAIGN  BADGES. 

2.  Philippine.   See  PHILIPPINE  CAMPAIGN  BADGES. 

CAMPAIGN  BADGES. 

1.  China  Campaign  Badge.    See  CHINA  CAMPAIGN  BADGES. 

2.  New  York  State  Campaign  Badge.    File  19245-54,  J.  A.  G.,  March  2,  1916. 

3.  Philippine  Campaign  Badge.    See  PHILIPPINE  CAMPAIGN  BADGES. 

CAPITATION  TAXES.    See  POLL  TAXES. 
CAPTAIN.    See  COMMANDING  OFFICERS. 

CAPTAIN  OF  FORECASTLE,  U.  S.  NAVY. 
1.  General  courHnartial— Tried  by.    C.  M.  O.  20, 1889. 

CAPTAIN  OF  THE  AFTERGUARD. 

1.  General  court-martial— Tried  by.    C.  M.  0. 23, 1879. 

CAPTAIN  OF  THE  HOLD,  U.  S.  NAVY. 

1.  General  court-martial— Tried  by.    C.  M.  0. 11, 1879. 

"CAPTAIN  OF  TOP." 

1.  General  court-martial— Tried  by.    C.  M.  O.  58, 1880;  15, 1887;  35, 1889;  37, 1892. 

CARBOLIC  ACID. 

1.  Suicide — Enlisted  man  committed  suicide  by  drinking.  See  LINE  OF  DUTY  AND  MIS- 
CONDUCT CONSTRUED,  75. 

CARBON  COPIES. 

1.  Evidence,  as— Letterpress  copies  are  at  best  secondary  evidence.  Carbon  copies  signed 
in  carbon  by  the  same  act  as  the  signing  of  the  original  or  signed  separately  in  the 
same  manner  as  the  original,  are  counterparts  or  duplicate  originals. 

Papers  prepared  in  duplicate  or  multiplicate,  requiring  no  signature  to  complete 
them  are  all  original  duplicates. 

For  the  purpose  of  this  office,  having  in  mind  the  character  of  the  papers  prepared 
herein,  carbon  copies  would  have  to  be  signed  either  in  carbon  by  the  same  act  as  the 
signing  of  the  original,  or  signed  separately  in  the  same  manner  as  the  original,  to 
become  primary  evidence.  Unless  so  signed  they  would  simply  be  secondary  evi- 
dence, to  be  used  in  the  same  manner  as  letterpress  copies,  and  as  between  the  two. 
as  secondary,  evidence,  letterpress  copies  would  be  more  easily  identified  and  woula 
present  less  chance  of  errors  by  reason  of  the  fact  that  it  frequently  happens  that 
changes  made  in  the  original  are  overlooked  and  not  made  in  the  carbon  copies. 

The  press  copy  is  secondary  evidence,  and  can  be  used  in  evidence  only  after  proof 
of  the  loss  or  destruction  of  the  original,  or  notice  to  the  opposite  party  to  produce  it 
when  it  is  shown  to  have  been  in  his  possession. 

Under  the  "  Best  Evidence  Rule  "  the  highest  degree  of  proof  of  which  the  case  from 
its  nature  is  susceptible  must,  if  accessible,  be  produced. 

As  between  a  press  copy  and  a  carbon  copy  the  press  copy  is  the  better  in  eases  where 
resort  must  be  to  secondary  evidence.  File  28067-27:15,  J.  A.  G.,  Nov.  17, 1911. 

CARELESS  AND  NEGLIGENT  IN  THE  PERFORMANCE  OF  DUTY. 

1.  Officers— Charged  with.    G.  C.  M.  Rec.  7220;  7221. 

CARELESS  IN  THE  PERFORMANCE  OF  DUTY.    C.  M.  O.  11,  190i. 

CARELESSNESS.    See  also  MISCONDUCT,  3. 

1.  Court.  SeeCouRT,  10;  CRITICISM  OF  COURTS-MARTIAL,  5,  25. 

2.  Death— Carelessness  causing  death.    C.  M.  O.  33,  1914,  11;  49,  1915,  12.    See  also  MAN- 

SLAUGHTER, 12. 

3.  Intent— Replacing  criminal  intent.    See  INTENT,  12. 

4.  Judge  advocate.   See  CERTIFIED  COPIES,  1;  COURT,  10;  JUDGE  ADVOCATE,  13. 

CARELESSNESS  IN  OBEYING  ORDERS. 

1.  Gunner— Charged  with.    C.  M.  O.  65. 1903. 

2.  What  constitutes— Carelessness  in  obeying  orders.    File  26251-668:a. 


CERTIFICATES.  59 

CARPENTERS. 

1.  Chief  carpenters.   See  CHIEF  CARPENTERS. 

2.  General  court-martial— Tried  by.    C.  M.  O.  32, 1914. 

CARRYING  CONCEALED  WEAPONS. 

1.  Midshipmen — Tried  by  general  court-martial — "Carrying  concealed  weapons  is  an 
offense  of  which  civil  courts  take  cognizance,  indicating,  moreover,  a  readiness  to 
resort  to  murder  on  fancied  or  real  provocation.  The  procedure  of  the  accused  in 
deliberately  arming  himself  with  a  concealed  revolver  before  he  went  into  a  disrepu- 
table quarter  of  *  *  *,  his  very  presence  therein  amidst  enlisted  men,  clearly 
indicates  deficiency  of  moral  sentiment,  self-restraint,  and  gentlemanlike  qualities." 
The  charge  in  this  case  was  conduct  unbecoming  an  officer  and  a  gentleman. 
C.  M.  O.  7, 1912;  8,  1912,  3. 

CASHIERED. 

1.  Defined— Dismissal  and  cashiering  were  formerly  regarded  as  quite  distinct  in  military 

law;  the  latter  involving  in  addition  to  a  dishonorable  separation  from  the  service  a 
disability  to  hold  military  office.  There  is  now  no  practical  difference  in  the  use  of  the 
terms.  Naval  courts-martial  should  adjudge  "dismissal. " 

In  G.  O.  52,  April  15,  1865,  where  an  officer  was  cashiered  the  department  in  the 
same  order  referred  to  him  as  having  been  "dismissed." 

2.  Officer— Sentenced  to  be  cashiered.    G.  O.  44,  Dec.  7, 1864;  52,  Apr.  15, 1865;  C.  M.  O. 

125, 1900,  2. 

3.  Same — Sentenced  "to  be  cashiered,  and  forever  disqualified  from  holding  any  office  or 

appointment  under  the  Government  of  the  United  States. "  Department  held  that 
"a  court-martial  can  not  disqualify  any  person  in  this  manner,"  and  remitted  that 
part  of  the  sentence.  G.  O.  44,  December  7,  1864. 

4.  Same— Members  of  general  courts-martial  may  be  cashiered.    See  COURT,  170;  MEMBERS 

OF  COURTS-MARTIAL,  5. 

"CATCH-ALL"  CLAUSE. 

1.  A.G.  N.  22 — "All  offenses  committed  by  persons  belonging  to  the  Navy  which  are  not 
specified  in  the  foregoing  articles  shall  be  punished  as  a  court-martial  may  direct." 
C.  M.  O.  4,  1913,  45;  49,  1915, 17, 18;  File  26251-9280;  26251-12159,  p.  18. 

CATERER  OF  THE  MESS.    C.  M.  O.  98, 1894,  2. 

CAUSING  TO  BE  PREPARED  A  FALSE  AND  FRAUDULENT  VOUCHER  IN 
VIOLATION  OF  ARTICLE  FOURTEEN,  A.  G.  N. 

1.  Officer— Charged  with.    C.  M.  0. 129,  1898. 

CAUTION.    See  WARNING. 

CELLS. 

1.  Brig.  See  BRIG  OF  RECEIVING  SHIP. 

2.  Storage  battery.  C.  M.  O.  41, 1915. 

CENSURE.  See  ADEQUATE  SENTENCES;  CRITICISM  OF  COURTS-MARTIAL;  CERTIFIED  COP- 
IES, 2;  COURT.  90,  93,  113,  148;  JUDGE  ADVOCATE,  14,  59,  60;  SECRETARY  OF  THE  NAVY, 
63. 

CEREMONIAL  OCCASIONS. 

1.  Officer's  monument— The  President  as  Commander  in  Chief  has  authority  to  order 
a  naval  detachment  to  Raleigh,  N.  C.,  to  participate  in  ceremonies  attending  the 
unveiling  of  a  monument  to  a  deceased  naval  officer.  File  3679-2.  See  also  BANDS,  1. 

CERTIFICATES. 

1.  Baptism.    C.  M.  O.  217, 1902,  3.    See  also  MINORS,  6. 

2.  Birth  certificates.    See  FRAUDULENT  ENLISTMENT,  59;  MINORS,  6. 

3.  Civil  officer — It  is  improper  for  a  judge  advocate  to  read  to  the  court  without  offering 

in  evidence  a  certificate  from  the  civil  officer  to  the  effect  that  the  accused  surrendered 
himself  and  when  brought  on  board  his  ship  stated  that  he  considered  himself  a 
straggler,  or  to  append  a  certified  copy  to  the  record.  C.  M.  0. 37, 1909,  8. 

4.  Same;— It  is  improper  for  a  judge  advocate  to  introduce  as  evidence  a  certificate  from  a 

civil  officer  setting  forth  the  fact  that  the  accused  did  not  surrender  himself  to  the 
police  authorities  and  that  he  was  a  deserter  from  the  naval  service.  The  best  evi- 
dence of  the  facts  set  forth  in  the  certificate  should  have  been  obtained  by  placing 
the  writer  thereof  on  the  stand  to  testify  under  oath  and  subject  to  cross-examination. 
C.  M.  O.  47,  1910,  4. 


60  CERTIFICATES. 

5.  Same— It  is  improper  for  a  judge  advocate  to  refer  to  a  certificate  of  a  civil  officer  (refer- 
ring to  apprehension  and  delivery  of  accused)  in  his  remarks,  and  append  certified 
copy  to  record  when  said  document  had  not  been  introduced  in  evidence.  The  depart- 
ment stated:  "  There  appears  to  be  no  authority  for  the  court's  action  in  permitting 
the  judge  advocate  to  arbitrarily  append  this  document  to  the  record,  since,  under  the 
circumstances,  it  has  no  place  therein.  Had  it  been  attempted  to  introduce  this 
statement  in  evidence,  it  would  have  been  subject  to  objection  as  hearsay  or  secondary 
evidence."  C.  M.  O.  1, 1911,  4. 

6.  Continuous  service  certificate.    See  CONTINUOUS  SKEVICE  CERTIFICATE. 

7.  Death.    See  MEDICAL  RECORDS,  5. 

8.  Deposit— Certificate  of  deposit.    See  C.  M.  O.  4, 1913.  5,  6,  7. 

9.  Discharge — "Certificate  of  discharge."    See  CIVIL  WAR  SERVICE,  1. 

10.  False  certificate— Specification  alleging  the  making  of  false  certificate  upon  a  quarterly 

return  of  clothing,  etc.    C.  M.  O.  52, 1910, 1. 

11.  Medical  officer — On  court-martial  records.    See  CONFINEMENT,  5. 

12.  Naturalization.    See  CITIZENSHIP,  23,  26. 

13.  Seaman  gunner.    See  SEAMAN  GUNNERS,  4. 

14.  Witness— Certificate  of  claim  for  civilian  witness  fee.    See  ADDRESS,  3. 

CERTIFIED  COPIES. 

1.  Document — When  an  officer  certifies  over  his  signature  a  document  to  be  a  true  copy 

of  some  other  writing,  it  is  presumed  to  be  an  exact  copy  thereof,  and  not  a  summary 
of  the  substance  of  the  remarks  contained  therein. 

The  department  has  frequently  noted,  in  reviewing  records  of  proceedings  of  general 
courts-martial  that  copies  of  precepts  and  other  documents,  purporting  to  be  true 
coptes  of  the  original,  and  signed  as  such  by  the  judge  advocate  of  the  court,  are  not  exact 
copies,  and  often  differ  materially  from  the  originals.  This  indicates  carelessness  on 
the  part  of  judge  advocates,  in  certifying  such  documents  without  first  satisfying 
themselves  that  they  are  exact  copies  of  the  originals.  C.  M.  O.  17, 1910,  3. 

2.  Same — The  department  noted  that  an  exhibit  in  a  general  court-martial  case,  purporting 

to  be  a  true  copy  of  an  original  writing,  was  in  fact  not  a  true  and  exact  copy  of  such 
writing,  ajthough  so  certified  to  by  the  judge  advocate.  The  department  considered 
such  manifest  carelessness  as  deserving  of  censure.  C.  M.  O.  23, 1910,  3. 

A  copy  of  a  document  is  never  good  evidence  where  legally  possible  to  produce 
original,  etc.  See  CARBON  COPIES;  EVIDENCE,  DOCUMENTARY,  10,  58. 

3.  Same — Certified  copy  of  extract  read  as  evidence  should    be  appended  to  record. 

C.  M.  O.  10,  1908;  41, 1914  45. 

4.  Enlistment  record. — Certified  copy  of  extract  read  in  desertion  case.    See  SERVICE 

RECORDS,  23. 

rtiflfid  conv  of  indictment.    Sr.r.  CIVIL  AUTHORITIES.  16. 

record  in  gen- 

7.  Record  of  proceedings— Notation  should  be  made  in  record  whether  original  or  certi- 

fied copy  of  document  read  is  appended  to  record.    C.  M.  O.  16,  1908;  41, 1914,  4-5. 

8.  Reports  on  fitness— If  introduced  in  evidence,  certified  copies  need  not  be  appended  to 

record.    See  REPORTS  ON  FITNESS,  5. 

CHALLENGES. 

1 .  Courts-martial— Until  sworn  can  only  hear  and  determine  challenges.    See  COURT,  120. 

Has  no  authority  to  excuse  any  of  its  members  from  sitting  in  a  case  except  upon 
challenge  duly  made  and  sustained  by  the  court.  Therefore,  a  court-martial  commits 
an  error  if  it  excuses  a  member  from  sitting ,  although  he  requests  it  and  states  he  in  ves- 
tigated  the  case  and  believes  the  accused  guilty.  C.  M.  O.  127, 1900, 1.  But  see  File 
20504-138,  Sec.  Navy,  May  13,  1912,  with  reference  to  self-challenge,  which  modifies 
this. 

2.  Courts  of  Inquiry — Challenge  of  members.    See  COURTS  OF  INQUIRY,  5. 

3.  Deck  Court — If  accused  objects  to  being  tried  by  deck  court,  he  shall  be  tried  by  sum- 

mary court-martial.    (R-506.)    See  CHALLENGES,  20;  DECK  COURTS,  9,50. 

4.  Insisting  upon— The  challenger  can  not  insist  upon  his  challenge  in  opposition  to  the 

decision  of  the  court.    (R-769.) 

5.  Judge  advocates — The  judge  advocate  can  not  be  challenged  on  any  grounds.     (R- 

769.) 

G.  Same — Will  properly  assist  the  accused  in  presenting  in  due  form  such  challenges  as 
the  latter  may  desire  to  urge,  when  the  accused  is  not  represented  by  counsel.  C.  M.  O. 
C,  1909, 3. 


CHALLENGES.  61 

Duty  to  challenge  a  member  of  the  court  for  privately  consulting  and  receiving 
advice  from  a  medical  expert  in  regard  to  evidence  in  the  case,  whether  the  irregular- 
ity may  have  tended  to  the  injury  of  the  prosecution  or  the  defense.  C.  M.  O. 128, 1905. 

7.  Marine  examining  board— Challenge  of  members  by  candidate.     See  PBOMOTION, 

2.".-27. 

8.  Material  witness— G.  C.  M.  Rec.  13370,  p.  2.    See  also  CHALLENGES,  16. 

9.  Member  by  judge  advocate — At  close  of  case  for  the  prosecution,  the  judge  advocate 

challenged  a  member  on  three  grounds:  (1)  That  he  nad  privately  consulted  and  re- 
ceived advice  from  a  medical  expert  in  regard  totheevidence  in  the  case;  (2)  that  he  had 
so  argued  with  witnesses  as  to  show  he  was  greatly  interested  in  a  certain  theory  of  the 
case;  (3)  that  he  had  taken  a  decided  stand  either  for  the  prosecution  or  defense,  without 
saying  which.  The  court  did  not  sustain  the  challenge.  The  department  held  that 
the  court  erred  in  not  sustaining  the  challenge  on  the  first  ground.  That  so  far  as 
practicable,  nothing  affecting  the  case  should  be  allowed  to  reach  the  mind  of  one  mem- 
ber unless  it  reached  all,  and  the  person  furnishing  it  speak  under  oath,  subject  to  cross- 
examination.  Inasmuch,  however,  as  counsel  for  the  accused  objected  with  emphasis 
to  challenge  and  argued  against  its  being  sustained,  the  accused  must  be  held  to  have 
no  right  to  complain  of  the  court's  ruling.  C.  M.  0. 128, 1905.  See  also  COUNSEL,  5. 

10.  Member  withdrawing— It  is  customary,  though  not  necessary,  that  a  member 

objected  to  should  withdraw,  after  offering  such  explanation  as  he  may  believe  neces- 
sary, and  the  court  shall  then  be  cleared  and  proceed  to  deliberate  and  decide  upon  the 
the  validity  of  the  objection.  (R-769.) 

11.  Opinion  formed.    See  CHALLENGES,  16, 17. 

12.  Possibility  of— No  officer  should  be  named  in  the  precept  as  a  member  against  whom 

either  the  judges  advocate  or  the  accused  can  reasonably  object  when  called  upon  to 
exercise  the  privilege  of  challenge.  (R-702.)  See  COURT,  34. 

13.  Prejudice — Members  were  challenged  for  prejudice.    Each  member  was  thereupon 

sworn  upon  his  voir  dire,  and  duly  interrogated,  after  which  the  accused  withdrew 
his  challenge.  13  J.  A.  G.,  324,  June  11,  1904,  p.  2.  See  also  CHALLENGES,  9;  MEM- 
BERS OF  COURTS-MARTIAL,  39. 

14.  Quorum— Court  reduced  below.    See  CHALLENGES,  22. 

15.  Rank,  title,  or  relative  position  ot  members — An  error  in  statement  of  the  rank, 

title,  or  relative  position  of  any  member  in  the  precept  will  not  affect  the  validity  of 
the  order.  Therefore,  court  erred  when  it  sustained  an  objection  entered  by  the 
judge  advocate  to  a  member  on  the  ground  that  his  title  in  the  precept  read,  "second 
lieutenant,"  instead  of  "first  lieutenant,"  his  proper  title.  C.  M.  0. 100, 1893, 1-2. 

16.  Reasonable  grounds — The  accused  objected  to  a  member  of  court,  a  surgeon,  on 

ground  that  he  might  be  a  witness  for  the  prosecution.  Court  overruled  challenge. 
The  department  held  that  this  challenge  should  have  been  sustained,  particularly 
when  it  subsequently  appeared  during  the  trial  that  not  only  might  the  challenged 
member  have  been  a  material  witness,  but  also  that  he  had  expressed  very  positively 
in  writing  an  opinion  as  to  the  guilt  of  the  accused  on  at  least  one  of  the  charges,  which 
opinion  was  later  introduced  improperly  in  evidence.  C.  M.  O.  47. 1910, 6-7. 

17.  Same — A  member  of  the  general  court-martial  admitted,  when  challenged,  that  he 

had  stated  he  hoped  the  accused  would  get  a  general  court-martial.  The  court  did 
not  sustain  the  challenge  and  the  department  disapproved  the  proceedings,  findings, 
and  sentence.  C.  M.  O.  34, 1897,  2. 

18.  Record  of  proceedings— The  objection,  the  cause  assigned,  the  statement,  if  any,  of 

the  challenged  member,  and  the  decision  of  the  court  shall  be  regularly  and  specifically 
entered  on  the  proceedings.  (R-769.) 

The  record  should  show  affirmatively  that  accused  was  given  an  opportunity  to 
challenge.  C.  M.  O.  37,  1909,  8. 

19.  Right  of — The  accused  and  the  judge  advocate  have  the  mutual  right  of  challenge. 

It  is  the  duty  of  the  judge  advocate  to  ask  the  accused  if  he  objects  to  any  member 
of  the  court  appointed  to  try  him,  and  a  minute  of  this  inquiry  and  the  answer 
thereto  is  invariably  to  be  entered  upon  the  record.  (R-769.) 

20.  Summary  courts-martial— After  tne  precept  and  orders  altering  the  same  have 

been  read,  the  accused  shall  be  asked  if  he  objects  to  any  member  of  the  court.  The 
recorder  may  not  be  challenged  on  any  ground.  It  is  essential  for  the  record  to 
show  that  the  accused  was  afforded  opportunity  to  challenge.  The  recorder  may  also 
challenge  members. 

If  a  challenge  is  made  and  the  court  decides  not  to  sustain  it,  the  case  shall  pro- 
ceed. If  the  challenge  is  sustained,  the  case  shall  be  suspended  and  the  recorder 
shall,  as  soon  as  possible,  forward  the  record  to  the  convening  authority.  If  the 
latter  approves  the  action  of  the  court,  he  may  order  a  new  member  in  place  of  the 


62  CHALLENGES. 

one  challenged,  or  withdraw  the  specification  from  the  court;  if  he  disapproves  the 
court's  action,  he  shall  return  the  record  to  the  court  with  his  action  thereon  and 
the  case  shall  proceed.  When  a  new  member  is  added  to  the  court,  the  order  ap- 
pointing him  shall  be  read  aloud  and  the  accused  shall  be  afforded  an  opportunity 
to  challenge  such  member  (47,  A.  G.  N.;  R-611.) 

21.  Time  tor  exercising  right  of   challenge— As  a  general  rule,  whatever  objection 

either  party  may  make  shall  be  decided  upon  before  the  court  is  sworn;  but  at  any 
stage  of  the  proceedings  prior  to  the  findings  challenge  may  be  made,  by  either  the 
judge  advocate  or  the  accused,  for  cause  not  previously  known.  (R-769.) 

22.  Valid — Should  the  objection  be  pronounced  valid,  and  the  membership  of  the  court 

be  thereby  reduced  below  the  legal  number,  the  court  shall  be  adjourned  and  a 
report  made  to  the  convening  authority.  (R-769.)  See  COURT,  141;  QUORUM,  2. 

23.  Same— Courts-martial  should  be  liberal  in  passing  upon  challenges,  but  should  not 

entertain  an  objection  which  is  not  specific,  or  allow  one  upon  its  mere  assertion 
by  the  accused  without  proof,  and  in  the  absence  of  any  admission  on  the  part  of 
the  member.  A  positive  declaration  by  the  challenged  member  to  the  effect  that  he 
has  no  prejudice  or  interest  in  the  case,  will,  in  general,  hi  the  absence  of  material 
evidence  hi  support  of  the  objection,  justify  the  court  hi  overruling  it. 

Harwood  on  Courts-Martial  (p.  73),  citing  De  Hart,  quotes  as  follows:  "Sir  C.  J. 
Napier  observes  that  'when  it  is  practicable  so  to  do,  all  challenges  should  be  admit- 
ted? It  is  not  only  right  to  be  as  mild  as  possible  toward  a  prisoner,  but  it  is  right 
also  to  let  the  public  and  the  prisoner  see  that  such  is  the  case.  A  culprit  should  never 
be  made  to  appear  hi  the  light  of  a  martyr;  for  when  this  takes  place,  much  of  the 
advantage  of  punishment  is  lost,  and  it  is  hard  to  oblige  him  so  to  do,  unless  the  good 
of  the  service  demands  it."  C.  M.  O.  34, 1897,  2. 

CHALLENGE  TO  DUELS.    See  DUELS. 
CHANGES  OF  NAMES.    See  NAME,  CHANGE  OF. 

CHAPLAINS. 

1.  Army — For  memorandum  comparing  naval  chaplains  with  Army  chaplains  and  other 

corps  of  the  Navy.    See  File  398-03. 

2.  Courts-martial— May  serve  as  members  of  courts-martial.     Letter  of  September  24, 

1898. 

3.  General  courts-martial— Tried  by.    C.  M.  0. 108, 1898;  74, 1907.    See  also  ADDITIONAL 

CHARGES  AND  SPECIFICATIONS,  10. 

4.  Judge  advocate — Chaplain  may  act  as  judge  advocate.    Letter  of  September  24, 1898. 

See  also  File  7214-98. 

5.  Number,  rank,  and  pay  of.    See  File  3616-3,  September  17, 1907. 

CHARACTER. 

1.  Accused's  character.    See  EVIDENCE,  12-22. 

2.  Admissibillty  of  evidence  as  to.    See  EVIDENCE  12-22. 

3.  Clemency— Recommended  because  of  previous  excellent  character  of  accused.    See 

CLEMENCY,  8. 

4.  Evidence  of— By  prosecution,  admissible  only  when,  etc.    See  EVIDENCE,  16. 

5.  Impeaching— Character  of  witnesses.    See  IMPEACHMENT. 

6.  Witnesses— Privilege  of  witnesses  to  decline  to  reply  to  questions  the  answers  to  which 

would  degrade  or  disgrace  them.  C.  M.  O.  29,  1914,  11.  See  also  SELF-INCRIMINA- 
TION,  11-12. 

7.  Same — As  to  character  of  accused.    C.  M.  0. 1, 1914, 5. 7.    Seealso  EVIDENCE,  12-22. 

8.  Same— Duty  of  judge  advocate  to  cross-examine.    C.  M.  O.  39, 1915.  • 

CHARGES  AND  SPECIFICATIONS. 

1.  Abbreviation— Of  names.    See  CHARGES  AND  SPECIFICATIONS,  60. 

2.  Absence,  unauthorized.    See  ABSENCE,  10-13;  ABSENT  FROM  STATION  AND  DUTY 

AFTER  LEAVE  HAD  EXPIRED;  ABSENT  FROM  STATION  AND  DUTY  WITHOUT  LEAVE; 
DESERTION. 

3.  Accumulative — Offenses  shall  not  be  allowed  to  accumulate  in  order  that  sufficient 

matter  may  thus  be  collectively  obtained  for  a  trial,  without  giving  due  notice  to 
the  offender.  (R-1411.)  C.  M.  0. 38, 1894,  3.  See  also  ACCUMULATION  OF  OFFENSES. 

4.  Accused— Shall,  as  soon  as  practicable  after  it  has  been  decided  to  bring  him  to  trial, 

be  furnished  with  a  copy  of  the  charges  and  specifications  preferred  against  him. 
(See  A.  G.  N.  43.)  C.  M.  0. 10, 1915,  6.  See  also  ARREST,  39. 

5.  Same — "In  all  cases,  whether  general  or  summary,  the  record  must  state  that  the 

accused  was  furnished  with  a  copy  of  the  charges  and  specifications  at  least  one  day 


CHARGES    AND    SPECIFICATIONS.  63 

before  the  trial."  (G.  O.  114,  Mar.  22,  1869.)  The  department  now  holds  that  the 
accused  may  be  tried  at  any  time  after  he  states  in  open  court  that  he  is  ready  for 
trial.  (R-775.) 

6.  Additional  charges  and  specifications.    See  ADDITIONAL  CHARGES  AND  SPECIFI- 

CATIONS. 

7.  Admissions  In  open  court— By  accused  of  certain  parts  of  the  specifications.    See 

ADMISSIONS,  1. 

8.  Alterations  In— How  made.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

9.  Amendments  In — How  made.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

10.  Arraignment.    See  ARRAIGNMENT. 

11.  Borrowing  money.    See  BORROWING  MONEY,  1;  LENDING  MONEY. 

12.  Breaking  arrest.    See  BREAKING  ARREST. 

13.  Changes  or  alterations  In— Authority  for.    See  CHARGES  AND  SPECIFICATIONS,  33, 34. 

14.  Conduct  unbecoming  an  officer  and  a  gentleman.— See  CONDUCT  UNBECOMING 

AN  OFFICER  AND  A  GENTLEMAN. 

15.  Convening  authorities— Should  follow  prescribed  forms — In  reviewing  records  of 

general  courts-martial  during  the  past  year  the  department  has  noted  that  convening 
authorities  have  not  conformed  to  the  phraseology  for  charges  as  outlined  in  the 
Forms  of  Procedure,  1910.  Wherever  possible  the  Forms  of  Procedure  should  be  fol- 
lowed. Convening  authorities  should  never  lose  sight  of  the  fact  at  any  time  as  ex- 
pressly stated  in  the  department's  order  promulgating  the  Forms  of  Procedure,  1910, 
that  "deviation  therefrom  may  be  fatally  irregular  and  erroneous."  (Forms  of  Pro- 
cedure, 1910,  p.  3.)  C.  M.  O.  49,  1915,  9.  See  also  C.  M.  O.  35,  1915,  6-7;  CHARGES 
AND  SPECIFICATIONS,  43,  44,  47,  48. 

16.  Same — Time  and  place  of  signing  by  convening  authority  should  be  stated.    C.  M.  O. 

159, 1897,  2;  160, 1897,  2. 

17.  Copy  of— To  be  furnished  accused.    See  CHARGES  AND  SPECIFICATIONS,  4,  5, 18;  AR- 

REST, 39. 

18.  Same — Received  by  accused  10  days  before  his  trial — The  accused  is  solely  responsible 

for  informing  his  natural  or  legal  guardians  or  relatives  of  the  fact  that  he  is  to  oe  tried 
by  general  court-martial.  The  department  has  held  that  an  accused  had  ample  time  to 
send  such  information  when  he  was  delivered  a  copy  of  the  charges  and  specifications 
10  days  before  he  was  brought  to  trial.  File  26251-6020:11,  Sec.  Navy,  July  7, 1913; 
C.  M.  O.  27, 1915, 10.  See  also  CHARGES  AND  SPECIFICATIONS,  4, 5. 

19.  Corrections  to.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

20.  Date — Accused  received  copy  of  charges  and  specifications  should  be  entered  on  record. 

C.  M.  O.  17,  1910, 15. 

21.  Same— Of  identification  of  accused  while  serving  in  Army  should  be  alleged  in  the 

specification  under  a  charge  of  "desertion."  C.  M.  0. 33, 1912, 2.  Seealso  ARMY,  9;  DE- 
SERTION, 17. 

22.  Same— Should  be  written  in  specifications.    C.  M.  O.  28, 1910, 5. 

23.  Same — Alleging  of  dates  in  specifications.    See  FINDINGS,  18,  27,  32,  33,  35. 

24.  Debts.    See  DEBTS,  12,  13,  21,  22,  24,  27. 

25.  Deceit.    See  DECEIT. 

26.  Deck  court.    See  DECK  COTJRTS. 

27.  Defects  In — Waived  by  plea  of  "guilty."    See  ABSENCE  FROM  STATION  AND  DUTY 

WITHOUT  LEAVE,  29. 

28.  Desertion.    See  DESERTION. 

29.  Drawn,  how.   See  CHARGES  AND  SPECIFICATIONS,  15, 16,  38,  39,  40, 43,  47,  48,  49,  52, 53, 

60,  61-68,  70,  74,  78.  91,  92,  93,  99,  102,  103,  105, 106. 

30.  Drunkenness  on  duty.   See  DRUNKENNESS  ON  DUTY,  4. 

31.  Duplication— Of  charges  should  be  avoided.    C.  M.  0. 49, 1915, 18.    See  CHARGES  AND 

SPECIFICATIONS,  32, 61-68. 

32.  Duplicity.    C.  M.  0. 150, 1897;  160, 1897;  35, 1915,  6-7;  49, 1915, 18.    See  also  CHARGES 

AND  SPECIFICATIONS,  31, 61-68. 

33.  Errors  in— After  a  charge  and  specification  has  been  signed  by  the  proper  convening 

authority  and  ordered  to  be  investigated,  it  is  not  competent  for  any  person  to  make 
alteration  therein  without  first  having  obtained  the  consent  of  such  authority,  except 
that  the  judge  advocate  may,  with  the  approval  of  the  court,  correct  manifest  clerical 
errors.  (Navy  Regulations,  1913,  R-715  (1-2);  R-774  (2);  Forms  of  Procedure, 
1910, p.  21.) 

If  a  court-martial  considers  other  alterations  necessary  in  a  charge  or  specification 
laid  before  it,  the  same  must  be  submitted  for  the  approval  of  the  authority  by  whom 
the  original  charge  was  sanctioned,  previous  to  the  arraignment  of  the  accused. 
(R-715  (2).)  (See  Q.  C.  M.  Rec.  16098,  Exhibits  "G"  and  "H";  File  26251-12309.) 

50756°— 17 5 


64  CHARGES    AND    SPECIFICATIONS. 

Errors  in  charges  and  specifications  are  classified  in  two  groups— clerical  and 
technical.  Clerical  errors  are  those  of  spelling,  punctuation,  etc.,  correction  of  which 
does  not  alter  facts:  and  those  may,  with  the  approval  of  the  court,  be  corrected  by 
the  judge  advocate.  (Forms  of  Procedure,  1910.  p.  21 . ) 

Technical  errors  are,  in  general,  those  which  the  charges  and  specifications  disclose, 
and  which  would  be  sufficient  to  sustain  a  demurrer  or  special  plea;  such  as  a  charge 
not  supported  by  the  specification,  uncertainty  as  to  the  time  or  place  of  the  offense, 
lack  o /jurisdiction  of  the  court,  etc.  (Forms  of  Procedure,  1910,  p.  21.) 

All  corrections  to  charges  and  specifications  should  be  made  on  accused's  copy. 

It  is  not  within  the  discretion  of  either  the  judge  advocate,  court,  or  any  other 
party  to  correct  technical  errors  in  the  charges  and  specifications  without  the  consent 
of  the  convening  authority.  If  the  court  is  in  doubt  as  to  whether  an  error  in  the 
charges  and  specifications  is  clerical  or  technical  it  should  treat  it  as  a  technical  error 
and  thus  avoid  any  possibility  of  having  the  case  disapproved  on  a  technicality  of 
this  nature.  C.  M.  O.  42, 1914,  3.  See  also  C.  M.  O.  27, 1898, 1;  16, 1911,  4. 

34.  Same — Procedure  to  correct— if  the  court  decides  that  a  charge  and  specification  con- 

tains a  technical  error  it  should  suspend  proceedings  and  follow  the  procedure  laid 
down  in  Forms  of  Procedure,  1910,  p.  21.  If  the  court  follows  this  procedure  in  every 
case  where  it  is  not  absolutely  certain  that  the  error  is  clerical,  the  convening  authority 
will  then  have  an  opportunity  to  amend  the  charge  and  specification.  (C.  M.  O.  16, 
1911,  p.  4.)  C.  M.  O.  42, 1914,  3.  See  also  CHARGES  AND  .SPECIFICATIONS,  33. 

35.  Same — Court  errs  if  it  pronounces  faulty  charges  and  specifications  in  "due  form  and 

technically  correct."    C.  M.  O.  16,  1911,  4;  35, 1915,  6-7. 

36.  Same— Faulty  specifications.    See  CHARGES  AND  SPECIFICATIONS,  £2. 

37.  Same— Waived  by  pleaof  "guilty."  See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 

LEAVE,  29. 

38.  Essentials — Of  offense  must  be  set  forth  in  a  deck-court  specification.    See  DECK 

COURTS,  59. 

39.  Same— In  reviewing  the  case  the  department  noted  that  the  three  specifications  under 

a  charge  did  not  designate  the  party  accused  nor  set  forth  the  time  of  the  alleged 
offenses,  the  ship  on  which  the  alleged  offenses  took  place,  nor  the  attending  circum- 
stances, as  required  by  the  provisions  of  the  Navy  Regulations,  and  as  they  contain  no 
allegation  of  any  offense  committed  by  the  accused,  the  findings  thereon  and  upon  the 
charge  were  disapproved.  C.  M.  O.  3, 1907,  1.  See  alto  File  26287-1041. 

40.  Extraneous  matter— In  drawing  up  the  charges  and  specifications,  all  extraneous 

matter  is  to  be  carefully  avoided,  and  nothing  shall  be  alleged  but  that  which  is  cul- 
pable and  which  makes  a  prima  facie  case  which  the  prosecution  may  reasonably 
expect  to  substantiate  before  acourt-martial.  C.  M.  0. 4, 1916, 3.  See  also  CHARGES 
AND  SPECIFICATIONS,  58;  23  J.  A.  G.,  376. 

41.  "Fatally  defective."    See  File  27217-1611.    See  also  FRAUD,  5. 

42.  Findings— When  the  accused  pleads  "guilty,"  the  proper  finding  for  the  specification 

is  "proved  by  plea,"  and  for  the  charge  "guilty."    See  FINDINGS,  12. 

43.  Form  of— Accused  may  be  tried  at  the  same  time  for  more  than  one  offense,  but  each 

offense  must  be  separately  charged,  and  each  charge  must  be  followed  by  a  separate 
specification,  so  that  the  party  accused  may  be  able  to  plead  separately  to  each  charge 
and  specification.  G.  0. 114,  March  22, 1869.  See  also  CHARGES  AND  SPECIFICATIONS, 
15,  39,  44,  45. 

44.  Same— Convening  authorities  should  follow  prescribed  forms.    See  CHARGES  AND 

SPECIFICATIONS,  15,  39, 43,  45. 

45.  Same— Summary  court-martial— The  specification  shall  be  framed  in  accordance  with 

the  provisions  of  R-712  and  R-713  (general  courts-martial  charges  and  specifications), 
a  separate  specification  shall  be  used  for  each  distinct  offense,  and  two  or  more  such 
specifications  may  be  joined  for  a  single  trial.  C.  M.  0. 16, 1916,  6-7. 

46.  "  Guilty,"  plea  of— Waives  defects  in  specifications.    See  ABSENCE  FROM  STATION 

AND  DUTY  WITHOUT  LEAVE,  29. 

47.  Higher  criminality— In  all  cases  in  which  the  law  attaches  higher  criminality  to  acts 

committed  under  particular  circumstances,  the  act  must,  to  bring  the  person  within 
the  higher  degree  of  punishment,  be  charged  to  have  been  committed  under  those  cir- 
cumstances, which  must  be  stated  with  certainty  and  precision.  For  instance,  by 
sections  6  and  7,  article  4.  Articles  for  the  Government  of  the  Navy  (R-4),  the  penalty 
of  death  shall,  in  time  01  war,  be  inflicted  for  desertion,  betrayal  of  trust, or  enticing 
others  to  commit  these  crimes;  in  a  charge,  therefore,  under  one  of  these  sections,  it 
must  be  laid  that  the  offense  was  committed  in  time  of  war.  C.  M.  O.  8, 1913,  7. 

48.  Highest  crime— It  is  not  necessary  to  charge  an  accused  with  the  highest  crime  which 

the  facts  known  at  the  time  of  drawing  up  the  charges  and  specifications  seem  to  indi- 


CHARGES   AND   SPECIFICATIONS.  55 

cate;  this  Is  within  the  discretion  of  the  convening  authority  or  the  Secretary  of  the 
Navy;  and  the  fact  that  an  accused  may  be  guilty  of  murder,  for  example,  does  not 
prevent  him  from  being  charged  with  manslaughter.  File  148-04,  J.  A.  G.,  Jan.  7, 
1904.  See  also  MURDER,  11, 16,  22,  24,  25. 

49.  Immaterial  allegations — An  offense  is  charged  by  the  statement  of  the  material  facts 

which  constitute  it,  and  not  by  the  statement  of  a  mere  conclusion  of  law.  Neverthe- 
less, particularity  of  description  in  charges  and  specifications  is  to  be  preferred  and  is 
sustained  by  practice.  (See  7  Op.  Atty.  Gen.,  601,  605;  28  Op.  Atty.  Gen.  292.) 
C.  M.  O.  8,  1913,  6-7;  4,  1914,  1,  7. 

If  the  charge  and  specification  taken  together  amount  to  a  statement  of  an  offense 
cognizable  under  the  Articles  for  the  Government  of  the  Navy,  either  under  a  specific 
or  the  general  article,  it  will  properly  be  held  sufficient  as  a  legal  basis  for  trial  and 
sentence.  File  27217-1611. 

50.  "  In  violation  of  regulation"— Is  equivalent  to  "without  authority."    C.  M.  O.  21, 

1910,6. 

51.  Indefinite— A  specification  of  a  charge  alleging  that  the  accused  did  "use  abusive  and 

profane  language  toward  a  person  unknown"  is  vague  and  indefinite,  does  not  prop- 
erly inform  the  accused  of  the  specific  offense  with  which  he  is  charged  and  against 
which  he  must  defend  himself,  and  is  not  in  accordance  with  the  department's  instruc- 
tions, which  require  the  objectionable  language  used  should  be  alleged.  C.  M.  O.  7, 
1911, 12.  See  also  C.  M.  O.  78, 1905, 1. 

52.  Intent — In  cases  where  the  law  has  adopted  certain  expressions  to  show  the  intent 

with  which  an  offense  is  committed,  the  intent  shall  be  expressed  by  the  technical 
word  prescribed,  as  "willfully,"  "knowingly,"  "corruptly,"  "maliciously,"  "inten- 
tionally," "wrongfully,"  "carelessly."  For  example,  a  charge  made  against  an  officer 
for  making  or  for  signing  a  false  muster  must  be  laid  to  have  been  done  "knowingly." 
(R-712.)  See  JOINDER,  TRIAL  IN,  19. 

53.  Irregular— Convening  authority  and   members  of  court  responsible— The  accused 

(enlisted  man )  was  tried  by  general  court-martial  by  order  of  the  commander  in  chief, 
United  States  Pacific  Fleet,  and  found  guilty  of  the  following  charges:  "Absence 
without  leave  and  out  of  uniform  ashore, "  and  "  Resisting  arrest  and  assaulting  a  chief 
petty  officer. "  The  accused  was  represented  by  civilian  counsel  and  made  no  objec- 
tion to  the  charges  and  specifications.  The  court  sentenced  the  accused,  and  the 
proceedings,  findings,  and  sentence  were  approved  without  comment  by  the  com- 
mander in  chief. 

A  reference  to  the  Navy  Regulations,  1913,  Forms  of  Procedure,  1910,  and  court- 
martial  orders  will  show  that  both  of  the  above  charges  are  extremely  irregular,  in  that 
each  charge  contains  more  than  one  offense  "of  a  perfectly  distinct  nature"  (Navy 
Regulations,  1913,  R-712  (2))  and  is  not  phrased  in  the  form  prescribed.  (See  Navy 
Regulations.  1913,  R-900,  Limitation  of  Punishment;  Forms  of  Procedure,  1910,  pp. 
89-131,  Specimen  Charges  and  Specifications;  pp.  313-319,  Limitation  of  Punishment; 
see  also  tabulations  in  monthly  court-martial  orders.) 

It  is  obvious  that  the  court  erred  when  it  "found  the  charges  and  specifications  in 
due  form  and  technically  correct."  (See  Forms  of  Procedure,  1910,  p.  21.  See  also 
G.  C.  M.  Rec.  Nos.  31019;  31020;  File  26262-2366;  26262-2367.)  C.  M.  O.  35, 1915, 6-7. 

54.  Joinder.   See  JOINDER,  TRIAL  IN. 

55.  Judge  Advocate— May  correct  clerical  errors,  etc.    See  CHARGES  AND  SPECIFICATIONS, 

33. 

56.  Language-^The  objectionable  language  used  by  the  accused  must  be  set  forth  in  the 

specifications  alleging  its  use.    See  CHARGES  AND  SPECIFICATIONS,  51. 

57.  Letter  of  transmittal — The  letter  to  the  judge  advocate  of  the  court  transmitting 

the  charges  and  specifications  on  which  a  person  is  to  be  tried,  or  a  properly  authen- 
ticated copy  of  the  same,  must  in  every  case  be  filed  with  the  charges  as  a  part  of  the 
record  of  the  court.  (R-716.)  See  CHARGES  AND  SPECIFICATIONS,  59;  LETTERS, 
27-30. 

58.  Manslaughter — The  department  is  reluctant  to  prepare  a  charge  of  "Manslaughter" 

or  any  other  charge  which  there  is  not  a  reasonable  expectation  of  proving,  and  such 
action,  if  taken,  would  be  contrary  to  R-712  (1).  File  26250-802:7,  Sec.  Navy,  Aug.  5, 
1916.  See  also  CHARGES  AND  SPECIFICATIONS,  40. 

59.  Marking  of— The  only  requirement  in  the  "  Forms  of  Procedure,  1910, "  as  to  marking 

charges  and  specifications  and  letters  of  transmittal,  is  that  documents  relating  to 
the  organization  of  the  court  shall  be  marked  with  capital  letters,  and  instruments  of 
evidence  with  numbers.  While  the  letter  of  transmittal  and  the  charge  and  specifi- 
cation are  not,  perhaps,  strictly  within  either  of  the  above-mentioned  classes,  yet 


66  CHARGES    AND    SPECIFICATIONS. 

they  more  nearly  resemble  documents  relating  to  the  organization  of  the  court  than 
otherwise;  certainly  they  are  not  instruments  of  evidence.  The  letter  of  transmittal 
is  the  document  that  gives  the  court  jurisdiction  in  that  particular  case  oyer  the  person 
named  thereto,  and  therefore  it  is  considered  proper  that  such  papers  should  be 
marked  to  the  same  manner  as  are  documents  relating  to  the  organization  of  the  court. 
C.  M.  O.  8,  1911,  6. 

60.  Middle  names— Christian  names,  other  than  the  first,  may  be  indicated  by  initial 

letters  to  specifications.  C.  M.  0. 36, 1914, 0, 7;  4, 1916, 5;  14, 1916;  File  26287-2104,  Sec. 
Navy,  July  22,  1914.  See  also  C.  M.  0. 150,1897,3;  1,1914,4;  5,1914,7;  40,1914;  G.  C. 
M.  Rec.  29584. 

61.  Multiplicity  or  plurality— For  same  offense  should  be  avoided— The  law  permits  as 

many  charges  to  be  preferred  as  are  necessary  to  provide  for  every  possible  contin- 
gency to  the  evidence.  Where  the  offense  falls  apparently  equally  within  the  scope 
of  two  or  more  articles  of  the  Articles  for  the  Government  of  the  Navy,  or  where  the 
legal  character  of  the  offense  can  not  be  precisely  known  or  defined  until  developed  by 
the  proof,  it  is  quite  proper  to  important  cases  to  specify  the  offense  under  two  or  more 
charges.  (C.  M.  0. 19, 1911, 3-4.)  There  is  no  rule  of  law  which  prohibits  the  formu- 
lation of  the  same  charge  under  more  than  one  article.  (C.  M.  0. 4, 1913,  46.) 

The  department's  instructions  merely  mean  that  as  a  matter  of  policy  the  rule 
which  permits  such  duplication  of  charges  is  not  to  be  availed  of  when  the  offense  falls 
quite  clearly  within  the  definition  of  a  specific  article,  where  there  are  no  aggravating 
circumstances  distinguishing  it  from  the  ordinary  case  contemplated  by  such  article, 
and  when  there  is  no  necessity  to  resort  to  multiplicity  or  plurality  of  charges.  C.  M,  O. 
42, 1914,  7;  49, 1915, 18. 

62.  Same— Department  does  not  approve  of  trying  an  accused  on  two  or  more  charges 

where  the  identical  facts  are  made  the  basis  of  both— Department's  policy  is  opposed 
to  duplicating  charges  based  on  identical  facts,  where  there  are  no  aggravating  cir- 
cumstances set  forth  under  one  charge  which  distinguishes  it  from  the  other.  Where 
an  objection  is  made  to  charges  ,and  specifications  on  this  ground,  if  the  court  finds 
that  the  charges  and  specifications  have  apparently  violated  the  department's  policy, 
the  case  should  be  referred  without  delay  to  the  convening  authority  to  the  manner 
prescribed  by  R-774  (2).  C.  M.  O.  5,  1914,  7;  42,  1914,  7;  49, 1915, 18.  See  also  File 
26262-2338;  G.  C.  M.  Rec.  30929. 

An  accused  was  tried  by  general  court-martial  by  order  of  the  Commander  to  Chief 
U.  8.  Asiatic  Fleet,  upon  charges  among  which  was  one  of "  drunkenness."  Under  this 
charge  there  were  three  specifications,  the  first  one  alleging  that  the  accused  was  under 
the  influence  of  intoxicating  liquor  at  or  about  5.20  p.  m.  February  15, 1916;  the  second 
specification  alleging  that  he  was  under  such  tolluenc  at  5.45  p.  m.  on  the  same  date; 
and  the  third  alleging  that  he  was  under  such  influence  at  about  6  p.  m.  on  the  same 
date. 

Since  it  seems  impossible  that  a  man  could  become  three  times  intoxicated  and 
twice  sober  during  so  short  a  period  as  40  minutes,  it  would  appear  that  the  facts 
alleged  to  the  three  specifications  all  relate  to  the  original  state  of  intoxication  con- 
tinuing during  this  40-minute  period,  and  that  there  had  been  but  one  act  of  becom- 
ing intoxicated  and  but  one  resulting  state  of  intoxication.  The  mere  fact  that  the 
location  of  the  accused  may  have  changed  while  intoxicated  does  not  in  itself  consti- 
tute a  distinct  offonse.  Also,  when  one  has  become  intoxicated,  his  continuance  fa 
this  state  until  sufficient  time  has  elapsed  to  permit  of  his  becoming  sobered,  is  to 
be  presumed,  and  such  a  continuance  forms  a  necessary  part  of  each  stogie  offense  of 
"drunkenness"  and  should  not  be  separately  alleged.  To  hold  otherwise  would  be. 
fa  effect,  to  allow  a  different  specification  for  every  second  a  man's  intoxication  might 
continue.  G.  C.  M.  Rec.  32124;  C.  M.  O.  17,  1916,  9. 

63.  Same— An  accused  should  not  be  charged  with  both  "Absence  from  station  and  duty 

without  leave"  and  "Conduct  to  the  prejudice  of  good  order  and  discipline"  where 
he  is  guilty  of  only  simple  absence  without  leave.  C.  M.  O.  5,  1914,  7;  25,  1914,  5. 
See  also  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  12;  CHABGES  AND  SPECI- 
FICATIONS, 64-68. 

64.  Same — In  a  case  where  an  accused  was  charged  with  both  "Absence  from  station  and 

duty  without  leave"  and  "Conduct  to  the  prejudice  of  good  order  and  discipline"  for 
the  same  period  of  unauthorized  absence,  and  no  aggravating  circumstances  were 
present,  the  department  disapproved  the  finding  on  the  second  charge.  C.  M.  0. 42, 
1909, 9, 11.  See  also  C.  M.  O.  51,  1910,  2. 

65.  Same— Accused  should  not  be  charged  with  both  " Desertion "  and  "Absence  from 

station  and  duty  after  his  leave  had  expired"  for  the  same  period  of  unauthorized 
absence.  C.  M.  O.  49, 1910, 15-16;  5, 1914,  7.  See  also  DESERTION,  5. 


CHARGES    AND    SPECIFICATIONS.  67 

66.  Same — Accused  should  not  be  charged  with  both  "Attempting  to  desert  "  and  "Ab- 
sence from  station  and  duty  without  leave  from  proper  authority"  for  the  same 
period  of  unauthorized  absence.  C.  M.  O.  23, 1910, 6. 

6?.  Same — Accused  should  not  be  charged  with  both  "Falsehood"  and  "Conduct  to  the 
prejudice  of  good  order  and  discipline  "  for  the  same  identical  offense — It  is  frequently 
advisable,  when  the  crime  is  of  a  complicated  nature,  or  it  is  uncertain  whether  the 
evidence  will  support  the  higher  and  more  criminal  part  of  the  charge  or  the  charge 
precisely  as  laid ,  to  insert  two  or  more  specifications  under  the  charge.  Every  cautious 
pleader  will  insert  as  many  specifications  as  will  be  necessary  to  provide  for  every  pos- 
sible contingency  in  the  evidence,  and  this  the  law  permits.  In  naval  cases  where 
the  offense  falls  apparently  equally  within  the  purview  of  two  or  more  Articles  for  the 
Government  of  the  Navy,  or  where  the  legal  character  of  the  act  of  the  accused  can 
not  be  precisely  known  or  defined  until  developed  by  the  proof,  it  is  not  infrequent 
in  cases  of  importance  to  state  the  accusation  under  two  or  more  charges.  If  the  two 
articles  impose  different  penalties,  it  may,  for  this  additional  reason,  be  desirable  to 
prefer  separate  charges,  since  the  court  will  be  invested  with  a  wider  discretion  as  to 
the  punishment.  Where,  however,  the  case  falls  quite  clearly  within  the  definition 
of  a  certain  specific  article,  to  resort  to  plural  charges  is  neither  good  pleading  nor  just 
to  the  accused.  C.  M.  O.  19, 1911,  3-4. 

68.  Same — It  is  neither  good  pleading  nor  just  to  the  accused  to  resort  to  plural  charges  for 

the  same  oflense  when  the  ioffense  is  clearly  denned.  An  unnecessary  multiplication 
of  forms  of  charge  for  the  same  offense  is  always  to  be  avoided.  C.  M.  0. 19, 1911, 3. 

69.  Names — Middle  names  may  be  abbreviated  in  specifications.    See  CHARGES  AND 

SPECIFICATIONS,  60. 

70.  Neglect  or  disorder  not  specially  provided  for — When  the  offense  is  a  neglect  or 

disorder  not  specially  provided  for,  it  shall  be  charged  as  "  Scandalous  conduct  tending 
to  the  destruction  of  good  morals,"  or  "Conduct  to  the  prejudice  of  good  order  and 
discipline."  C.  M.  O.  4,  1913.  45;  49,  1915,  17,  18;  File  26251-9280;  26262-1920, 1921, 
Sec.  Navy,  Jan.  5, 1914.  See  also  "CATCH-ALL"  CLAUSE,  1. 

71.  "Negligence  in  the  performance  of  duty" — Is  a  lesser  degree  of  the  charge  "Cul- 

pable inefficiency  in  the  performance  of  duty."    C.  M.  0. 12, 1910, 1. 

72.  Nolle  Prosequl.    See  NOLLE  PROSEQTJI. 

73.  Objections  to — Procedure  in  case  of.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

74.  Oflense — Charge    should  contain  only  one  offense — Offenses  of  a  perfectly  distinct 

nature  must  not  be  included  in  one  and  the  same  charge  and  specification  of  a  charge, 
but  each  offense  of  a  different  kind  shall  be  the  subject  of  a  distinct  charge  and  speci- 
fication. C.  M.  O.  35, 1915, 6-7;  16, 1916.  See  also  CHARGES  AND  SPECIFICATIONS,  53. 

75.  Same — Must  allege  an  offense.    See  CHARGES  AND  SPECIFICATIONS,  39. 

76.  One  charge— The  figure  "I"  should  not  be  used.    See  C.  M.  O.  32, 1915,  where  this 

was  erroneously  done. 

77.  One  oflense — Specification  should  contain  only  one  offense.    C.  M.  O.  16, 1916,  6-7. 

See  also  CHARGES  AND  SPECIFICATIONS,  53,  74. 

78.  Particular  words — Where  particular  words  form  the  gist  of  the  oflense,  they  must 

be  set  forth  with  particularity,  or  declared  to  be  of  the  like  meaning  and  purport. 
(R-714  (3).) 

79.  Particularity  of  description— Is  desirable.    See  CHARGES  AND  SPECIFICATIONS,  49. 

80.  Period  of  unauthorized  absence— Should  be  alleged.    See  ABSENCE,  10, 11;  AB- 

SENCE FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

81.  Perjury.    See  PERJURY,  1.  3, 16. 

82.  Place— Of  offense  should  be  alleged  in  specifications.    (G.  C.  M.  Rec.  23743.)    C.  M. 

0. 10. 1901,  7;  3, 1907, 1;  10, 1911,  7.    See  also  CHARGES  AND  SPECIFICATIONS,  39, 92. 

83.  Plea  of  "guilty"— Waives  defects  in  specifications.    See  ABSENCE  FROM  STATION 

AND  DUTY  WITHOUT  LEAVE,  29. 

84.  Plurality  or  multiplicity  of  charges.    See  CHARGES  AND  SPECIFICATIONS,  31-32, 

61-68. 


54,  1898. 

86.  Same — The  date  the  accused  received  a  copy  of  the  charges  and  specifications  should 

be  entered  on  the  record  of  proceedings.    C.  M.  O.  36,  1905,  3;  17,  1910,  5.    See  also 
RECORD  OF  PROCEEDINGS,  44. 

87.  Reiteration— Of  charges  and  specifications.    C.  M.  O.  42, 1909, 9;  51, 1910, 2;  23, 1910, 6. 

See  also  CHARGES  AND  SPECIFICATIONS,  31-32, 61-68. 


68  CHARGES    AND   SPECIFICATIONS. 

88.  Robbery.    C.  M.  0. 8, 1913,  5-7.   See  also  CHARGES  AND  SPECIFICATIONS,  92;  ROBBERY. 

89.  Sentence — Maximum  sentence  that  may  be  adjudged  where  there  is  a  multiplicity 

of  charges.    See  EXCESSIVE  SENTENCES,  2, 3. 

90.  Service  on  accused.    See  CHARGES  AND  SPECIFICATIONS,  4,  5, 18. 

91.  Signing  of,  by  convening  authority— Time  and  place  or  signing  charges  and  speci- 

fications by  convening  authority  should  be  stated.  C.  M.  0. 159, 1897,  2;  160, 1897,  2. 
Precepts  and  charges  and  specifications  must  affirmatively  show  on  their  face  that 
the  officer  signing  was  one  of  those  mentioned  in  the  law  authorized  to  convene  naval 
courts-martial.  The  single  word  "Acting"  beneath  the  signature  does  not  indicate 
in  any  way  that  the  officer  signing  has  the  necessary  authority.  File  26262-1920, 1921, 
Sec.  Navy,  Jan.  5, 1914.  See  also  CONVENING  AUTHORITY,  63. 

92.  Specifications— The  department  has  criticized  faulty  specifications  for  the  follow- 

ing reasons: 

Absence,  unauthorized.  Sec  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE, 
10,  12, 13,  29. 

Dates.— Must  be  written  in  specifications.    C.  M.  O.  28, 1910,  5. 

Desertion. — Date  of  identification  of  accused  while  serving  in  Army  must  be  alleged 
in  specification.  C.  M.  O.  33, 1912,  2;  6, 1913,  4. 

A  specification  which  simply  alleges  that  the  accused  deserted  from  a  certain 
ship,  continuing  in  desertion  until  after  departure  of  said  vessel,  and  which  does 
not  further  allege  that  he  deserted  from  the  Unitgd  States  Navy,  or  more  properly 
that  he  continued  in  such  unauthorized  absence  with  intent  to  permanently  abandon 
the  naval  service,  is  not  sufficient  to  sustain  a  charge  of  desertion.  C.  M.  0.49,1910,9. 

Drunkenness  on  duty. — The  specification  under  a  charge  of "  Drunkenness  on  duty" 
did  not  specify  any  duty  that  the  accused  was  performing,  simply  stating  that  he  was 
so  much  under  the  influence  of  some  intoxicant  as  to  be  unfit  for  the  proper  perform- 
ance of  his  duty.  C.  M.  0. 12, 1909, 1;  23, 1910,  4. 

Each  specification  must  support  charge. — Each  specification  standing  alone  must 
contain  sufficient  allegations  to  support  the  charge  under  which  it  appears.  C.  M.  O. 
107.  1894,  2;  21,  1910,  7,  8,  11. 

Language. — Objectionable  language  used  by  accused  must  be  set  forth.  C.  M.  O. 
7,  1911,  12. 

Multiplicity  of  specifications.    See  CHARGES  AND  SPECIFICATIONS,  31-32,  61-68. 

Names.— Middle  names  may  be  abbreviated.  C.  M.  O.  36, 1914,  6,  7;  4,  1916.  See 
also  C.  M.  0. 150, 1897,  3;  1, 1914,  4;  5, 1914,  7;  40, 1914. 

Not  well  drawn.    C.  M.  O.  34, 1900, 1. 

One  charge.— Figure  "I"  not  to  be  used.    See  C.  M.  O.  32, 1915. 

One  offense. — Specification  should  contain  only  one  offense.  C.  M.  O.  8, 1911,  8; 
16,  1911,  3;  G.  0. 114,  Mar.  22, 1869;  C.  M.  O.  16, 1916,  6-7. 

Party  accused. — Specification  must  designate  party  accused.    C.  M.  O.  3,  1907,  1. 

Perjury. — A  specification  of  the  charge  alleging  perjury  was  faulty,  in  that,  while 
it  properly  alleged  that  the  testimony  given  by  the  accused  was  false,  it  did  not  set 
forth  what  was  the  truth  in  regard  jo  the  matter.  (U.  S.  v.  Pettus,  84  Fed.  Rep., 

offense  was 


Plurality  ofspecifications.    See  CHARGES  AND  SPECIFICATIONS,  31,  32,  61-68. 

Robbery. — The  essential  feature  of  the  crime  of  robbery  which  distinguishes  it  from 
theft  both  in  common  law  and  statutory  law  is  the  taking  from  the  person  or  in  the 
presence  of  the  owner  or  custodian,  and  as  this  very  essential  and  necessary  element 
was  not  alleged  in  the  specification  the  department  held  that  it  did  not  support  the 
charge  and  that  there  had  not  been  a  legal  trial  and  conviction  and  disapproved  the 
finding  on  that  charge  and  specification.  C.  M.  O.  8, 1913,  5-7. 

Seditious  words. — Specification  did  not  allege  that  the  words  uttered  were  either 
known  to  be  seditious,  or  that  they  were  spoken  with  that  intent;  such  an  allega- 
tion is  essential.  C.  M.  0. 14, 1910, 14. 

Time  of  offense. — The  specification  must  show,  at  least  approximately,  the  time  of 
the  commission  of  the  offense.  C.  M.  O.  33, 1914,  6.  See  also  C.  M.  O.  3, 1907, 1;  10, 
1911,  7;  19, 1912,  5;  File  26287-2121,  Sec.  Navy,  Aug.  5;  1914;  26251-12309,  October,  1916. 

Two  offenses  in  one  specification.— A  specification  is  faulty  which  alleges  two  sepa- 
rate and  distinct  oflenses.  C.  M.  O.  8, 1911,  8;  16, 1911,  3.  See  also  G.  0. 114,  March 
22, 1869. 

Accused  was  tried  by  summary  court-martial  under  one  specification  which  alleged 
"his  return  to  said  ship  from  special  liberty  drunk  and  disorderly;"  and  that  he  did 
"  while  being  placed  in  confinement  *  *  *  forcibly  resist  arrest."  Thus  two  dis- 


CHARGES    AND    SPECIFICATIONS.  69 

tinct  offenses  were  set  forth  in  a  single  specification,  whereas  "each  offense  of  a  differ- 
ent kind  shall  be  the  subject  of  a  distinct  specification."  This  error  of  setting  forth 
several  offenses  in  the  same  summary  court-martial  specification  is  generally  com- 
mitted in  joining  "absence  over  leave  "  with  such  offenses  as  "drunk  and  disorderly," 
"returning  on  board  drunk  and  unfit  for  duty."  and  "breaking  arrest."  Each  of  the 
latter  offenses  is  distinct  in  itself,  and  should  be  set  forth  in  a  separate  specification. 
(See  R-608.)  C.  M.  O.  16,  1916,  6-7. 

93.  Specifications,  drawing  of— The  specifications  of  each  charge,  one  or  more,  must  be: 

a.  Brief,  clear,  and  explicit. — The  facts,  circumstances,  and  intent  constituting  the 
offense  must  be  set  forth  with  certainty  and  precision,  and  the  accused  charged  directly 
and  positively  with  having  committed  it.    [See  CHARGES  AND  SPECIFICATIONS,  92.] 

b.  Certain  as  to  the  party  accused.— He  must  be  described  by  his  title  and  rank, 
or  rating,  Christian  nime  and  surname  written  at  full  length,  with  the  addition  of  his 
vessel  or  service  at  the  time  the  offenses  with  which  he  shall  be  charged  took  place. 
(SeeC.  M.  O.  3,  190J,  1.) 

c.  Certain  as  to  time. — The  time  when  the  alleged  offenses  occurred  should  be  set 
forth  minutely  and  precisely.    Should  any  doubt  exist  in  regard  to  the  time,  it  may 
set  forth  in  the  specification  that  the  act  was  committed  "on  or  about"  such  a  time, 
but  the  limitation  as  to  date  must  embrace  a  reasonable  time  only.    (See  CHARGES 
AND  SPECIFICATIONS,  92;  FINDINGS,  18,  27, 32, 33, 35.) 

d.  Certain  as  to  place. — The  place  where  the  alleged  offenses  occurred  should  be  set 
forth  minutely  and  precisely.    Should  any  doubt  exist  in  regard  to  the  place,  it  may  be 
set  forth  in  the  specification  that  the  act  was  committed  "at  or  near  '  such  a  place. 
But  when  the  geographical  position  of  a  ship  is  not  material  to  a  complete  description 
of  the  offense,  such  as  the  theft  of  another's  clothing  or  any  other  act  committed  wholly  on 
board  ship,^  such  particular  geographical  position  need  not  be  specified. 

e.  Certain  as  to  the  person  against  whom  the  offense  was  committed. — In  the  case  of 
offenses  against  the  person  or  property  of  individuals,  the  Christian  name  and  surname 
with  the  rank  and  station  or  duty  of  such  person,  if  he  have  any,  must  be  stated  at 
length,  if  known.    If  not  known,  the  party  injured  must  be  described  as  a  "person 
unknown." 

/.  Certain  as  to  the  facts,  circumstances,  and,  where  intent  forms  an  ingredient  of  the 
offense,  the  intent  constituting  the  offense. — It  is  not  sufficient  that  the  accused  be 
charged  generally  with  having  committed  an  offense,  as  for  instance,  with  habitual 
violation  of  orders  or  neglect  of  duty,  but  the  particular  acts  or  circumstances  consti- 
tuting such  offenses  must  be  distinctly  set  forth  in  the  specification.  (See  C.  M.  O.  3, 
1907,  1;  G.  O.  114,  March  22,  1869;  File  26251-12309,  J.  A.  G.,  October,  1916.) 

94.  Statute,  breach  of —It  is  not  necessary  to  specify  in  a  charge  that  an  offense  was  com- 

mitted in  breach  of  any  particular  statute  or  Article  for  the  Government  of  the  Navy , 
but  whenever  the  allegation  comes  directly  under  any  enactment  it  shall  be  set  forth 
in  the  terms  used  therein.  (R-712.) 

95.  Struck  out  by  court.   C.  M.  0. 16, 1911, 2-3.    See  also  NOLLE  PROSEQUI,  8. 

96.  Substitutes  and  exceptions— Made  in  findings  of  court.    See  FINDINGS,  27-37. 

97.  Summary  court-martial — No  charges  should  be  used.    See   SUMMARY  COURTS- 

MARTIAL,  10. 

98.  Same— Form  of  specifications.    See  CHARGES  AND  SPECIFICATIONS,  45,  92. 

99.  Support  charge— The  specification  must  support  the  charge — Fleet  convening  author- 

ity preferred  charges  and  specifications  against  an  officer.  The  Secretary  of  the  Navy 
in  revising  the  record  decided  that  the  specification  did  not  support  the  charge  and 
set  the  sentence  aside.  C.  M.  O.  4,  1916.  See  also  FRAUD,  5;  C.  M.  0. 107,  1894,  2. 

"All  the  technicalities  which  have  been  applied  to  common-law  indictments  are 
not  required  in  specifications  in  court-martial  proceedings.  Here  it  is  sufficient  if  the 
facts  constituting  the  offense  bedescribed  with  such  certainty  as  to  clearly  inform  the 
accused  of  his  alleged  misconduct  and  of  the  offense  with  which  he  is  charged."  (28 
Op.  Atty.  Gen.,  292.  See  also  7  Op.  Atty.  Gen.,  605.)  C.  M.  O.  8,  1913,  6-7;  File 
26251-12309. 

100.  Time — Of  the  commission  of  the  offense  should  be  alleged.    See  CHARGES  AND  SPECIFI- 

CATIONS, 92,  93;  FINDINGS,  27, 32, 35. 

101.  Vague— Specifications.    C.  M.  O.  78, 1905, 1;  7, 1911,  12;  File  26262-1065,  J.  A.  G.    See 

also  CHARGES  AND  SPECIFICATIONS,  51;  File  26262-729:2,  Sec.  Navy,  Feb.  25, 1910. 

102.  Valid — A  specification  of  charge  is  good  and  will  support  the  finding  and  sentence  upon 

it,  with  or  without  descriptive  designation  of  the  quality  of  the  imputed  criminal  act, 
provided  it  appear  that  the  facts  alleged  and  proved  constitute,  in  any  point  of  view, 
the  offense  charged.  (See  7  Op.  Atty.  Gen.,  601.)  C.  M.  O.  4,  1914,  7.  See  also 
CHARGES  AND  SPECIFICATIONS,  49. 


70  CHARGES    AND    SPECIFICATIONS. 

103.  Same — The  specification  must,  on  its  face,  allege  facts  which  constitute  a  violation  of 

some  law,  regulation,  or  custom  of  the  service.  If  the  offense  committed  does  not  con- 
stitute a  violation  of  some  law,  regulation,  or  well-known  custom  of  the  service,  of 
which  judicial  notice  can  be  taken,  the  facts  must  be  alleged  with  particularity  in  order 
to  show  that  some  offense  was  committed.  C.  M.  O.  33, 1914.  6. 

It  is  entirely  and  properly  the  province  of  the  court  to  decide  the  issue,  when  such 
is  raised,  as  to  the  validity  of  a  specification.  C.  M.  0. 16, 1911,  4. 

104.  Withdrawal— Of  charges  and  specifications  by  convening  authority.   See  NOLLE  PROS- 

EQUI. 

105.  Witness— When  may  be  read  to — Before  a  witness  shall  be  examined  the  general 

charges  may  be  read  to  him,  if  the  court  thinks  proper;  but  the  specifications  shall  not 
be  read  to  him,  particularly  when  they  are  so  worded  as  to  instruct  him  how  to  answer 
or  to  make  known  to  him  the  minute  facts  of  the  case.  See  C.  M.  O.  40. 1893;  94, 
1897,  2. 

106.  Written  instruments— Written  instruments,  or  so  much  thereof  as  form  part  of  the 

gist  of  the  offense  charged,  must  be  set  out  verbatim,  with  care  and  accuracy. 

When  the  substance  only  is  intended  to  be  set  out,  it  should  be  introduced  by  the 
words  "in  substance  as  follows."  The  word  "tenor"  implies  that  a  correct  copy  is 
set  out.  (R-717.) 

CHARTS.    See  also  COAST  AND  GEODETIC  SURVEY. 

1.  Coast  Survey  Charts.    C.  M.  O.  29, 1909. 1;  30, 1909,  2;  24, 1911;  31, 1916. 

2.  Commanding  officer— Tried  by  general  court-martial  for  neglecting  to  supply  the 

officer  of  the  deck  with  proper  chart.    C.  M.  O.  29, 1909, 1. 

3.  Hydrographic  Office  Chart— No.  967.    C.  M.  O.  2, 1914,  2;  3, 1914. 

CHEATING.    See  BLOTTER;  GOUGING;  MIDSHIPMEN,  22;  OFFICERS,  13. 

CHECKS. 

1.  Allotment  checks — Minors.    See  ALLOTMENTS,  5. 

2.  Cashing— Minors  would  have  trouble  in  cashing  allotment  checks.    See  ALLOTMENTS,  5. 

3.  Certified  checks.    See  WORDS  AND  PHRASES. 

4.  Custom— Of  marking  checks  as  exchanged  for  cash.    C.  M.  O.  4, 1913,  6. 

5.  Death  gratuity  check.   See  DEATH  GRATUITY,  13. 

6.  Photographic  copies— Of  checks  as  evidence.    See  EVIDENCE.  DOCUMENTARY,  37. 

7.  Worthless  checks — Retired  chief  boatswain  tried  by  general  court-martial  for  passing 

worthless  checks.    C.  M.  0. 15, 1915. 

CHECKING  PAY. 

1.  Enlisted  man— Paymaster  erroneously  checked  pay.    C.  M.  O.  10, 1915,  12.    See  also 

AUDITOR  FOR  THE  NAVY  DEPARTMENT,  6. 

2.  Lost  property.    See  PAY,  17, 18. 

CHIEF   BOATSWAINS. 

1.  General  court-martial— Tried  by.   C.  M.  0. 16, 1914;  18, 1914;  21, 1914;  23, 1915;  25, 1915; 

21,  1916. 

2.  Same— Chief  boatswains  are  commissioned  officers  and  are  therefore  entitled  to  serve 

as  members  of  general  courts-martial  under  A.  G.  N.  39.    File  5819-2,  Oct.  30, 1900. 

3.  Promotion— Examination  for.    See  PROMOTION,  206,  216. 

4.  Retired  chief  boatswain— Tried  by  general  court-martial.    C.  M.  0. 15, 1915. 

CHIEF   CARPENTERS. 

1.  General  court-martial— Tried  by.    C.  M.  O.  37, 1914;  48, 1914;  21, 1915. 

CHIEF   CLERK,  NAVY  DEPARTMENT. 

1.  Duties  of— To  facilitate  and  aid  the  Secretary  of  the  Navy  hi  the  exercise  of  his  many 
and  varied  important  duties  and  responsibilities,  he  has  an  office  force,  supervised  by 
the  chief  clerk  of  the  department,  which  is  required  to  determine  and  pass  upon  all 
matters  requiring  his  action  which  by  law  or  regulation,  are  not  otherwise  required 
to  be  handled.  File  22353-13. 

CHIEF  CLERKS  OF  BUREAUS. 

1.  Acting  chiefs — In  certain  bureaus  the  chief  clerk  of  the  bureau  becomes  acting  chief 
thereof  in  case  of  the  absence  or  sickness  of  the  chief  of  the  bureau,  unless  otherwise 
directed  by  the  President  under  R.  S.  179.  File  22724-14,  Dec.  17,  1909.  See  also 
Act  of  August  29, 1916  (39  Stat.  558). 

CHIEF  ENGINEER. 

1.  General  court-martial— Tried  by.    C.  M.  O.  25, 1882;  3, 1884;  49, 1884. 


CIRCULARS    OF   THE    DEPARTMENT.  71 

CHIEF  GUNNERS. 

1.  General  court-martial— Tried  by.    C.  M.  O.  2, 1916. 

CHIEF  MACHINISTS. 

1.  Command— Exercise  of  command.    See  COMMAND,  21. 

2.  General  court-martial— Tried  by.    C.  M.  0. 12, 1914;  52, 1914;  28, 1915;  36, 1915. 

CHIEF  NAVAL  CONSTRUCTOR.    See  BUREAU  CHIEFS,  9. 
CHIEFS  OF  BUREAUS.    See  BUREAU  CHIEFS. 

CHIEF  OF  BUREAU  OF  MEDICINE  AND  SURGERY.    See  BUREAU  OF  MEDICINE 
AND  SURGERY,  1,  2;  MEDICAL  RECORDS,  l,  3,  4,  5. 

CHIEF  OF  NAVAL  OPERATIONS. 

1.  Court-martial  order— Recommendation  published  in.     C.  M.  O.  41, 1915,  3;  26, 1916. 

3;  27. 1916,  4. 

2.  Commission  for.    See  COMMISSIONS,  25. 

CHIEF  OF  STAFF. 

1.  Title  of— "The  title  of  Fleet  Captain  is  changed  to  that  of  Chief  of  Staff."  Q.  0. 122, 
April  26, 1869. 

CHIEFS  OF  STAFF  CORPS. 

1.  Retirement  of— For  abstract  of  laws  relating  to.    See  14  J.  A.  G.,  292,  February  9, 1910. 

CHIEF  PAY  CLERKS. 

1.  Appointment  of.    See  PAY  CLERKS  AND  CHIEF  PAY  CLERKS,  1-3. 

2.  General  court-martial— Tried  by.    C.  M.  O.  46, 1915;  28, 1916;  36,  1916. 

CHDZF  PHARMACISTS.    See  PHARMACISTS  AND  CHIEF  PHARMACISTS. 

CHIEF  PRINTERS. 

1.  Rating.— Establishment  of.    See  RATING,  2. 

CHIEF  SAILMAKERS. 

1.  General  court-martial— Tried  bj.    C.  M.  0. 73, 1901;  4, 1908. 

CHIEF  YEOMEN. 

1.  Acting  pa;'  clerk — Chief  yeomen  holding  an  acting  appointment  as  such  are  eligible 
for  appointment  as  acting  pay  clerks  if  otherwise  eligible.  See  PAY  CLERKS  AND 
CHIEF  PAY  CLERKS,  2. 

CHILEAN  INDEMNITY  FUND. 

1.  U.  S.  S.  "Baltimore" — The  sum  of  $75,000  was  informally  appropriated  by  Chile  to 
be  distributed  among  the  crew  of  the  U.  S.  S.  Baltimore  who  received  personal  in- 
juries at  Valparaiso  in  October,  1891.  The  Secretary  of  the  Navy  undertook  the 
distribution  of  this  money.  File  8635-1898;  8654-1898.  See  also  An.  Rep.  J.  A.  G., 
1894,  p.  5. 

CHINA  CAMPAIGN.    See  CHINA  CAMPAIGN  BADGES;  WAR,  7. 

CHINA  CAMPAIGN  BADGES. 

1.  Revocation  of— Where  an  enlisted  man  of  the  Marine  Corps  was  discharged  as  "unfit 
for  the  service"  in  order  that  a  life  sentence  of  penal  servitude,  pursuant  to  convic- 
tion in  a  civil  court  on  the  charge  of  murder,  might  be  carried  into  effect,  an  award 
of  "the  China  and  Philippine  campaign  badges  for  his  services  in  those  campaigns 
should  be  revoked."  The  authority  to  revoke  under  such  circumstances  in  cases  of 
enlisted  men  in  the  Marine  Corps  may  be  exercised  by  the  Major  General  Commandant 
of  the  MarineCorps.  File  26519-3:2,  Sec.  Navy,  March  11, 1915, explaining  file  26519-3. 
Sec.  Navy,  Dec.  1, 1914;  C.  M.  0. 12, 1915,  8. 

CHINAMEN. 

1.  Citizenship  of.   See  CITIZENSHIP,  3-6, 11. 

CHIROPODISTS. 

1.  Law— No  law  authorizing  the  employment  of  chiropodists  in  the  Navy  as  such.  File 
26509-166,  Sec.  Navy,  Aug.  14,  1916. 

CIGARETTES. 

1.  Smoked  by  officer  of  t lie  deck.    See  OFFICER-OF-THE-DECK, 3. 

CIRCULARS  OF  THE  DEPARTMENT. 

1.  Civil  courts— Weight  given  to  circulars  of  the  department  by  civil  courts.    See  STATU- 

TORY CONSTRUCTION  AND  INTERPRETATION,  20. 

2.  Waiving  of.    See  ACTING  ASSISTANT  SURGEONS,  2. 


72  CITIZENSHIP. 

CITIZENRY.    See  C.  M.  O.  14,  1915,  2. 

CITIZENSHIP. 

1.  Adoption.    See  CITIZENSHIP,  34. 

2.  Aliens— Naturalization  of  alien  enlisted  men  under  actof  June  30, 1914.    (38Stat.,  395)— 

The  naval  appropriation  act,  approved  June  30,  1914  (33  Stat.,  395),  provides,  among 
other  things,  that  enlisted  men  who  hold  an  honorable  discharge  from  the  Navy  or 
Marine  Corps,  or  an  ordinary  discharge  with  recommendations  for  reenlistment,  may 
upon  application  to  a  court  of  competent  jurisdiction  be  immediately  naturalized,  if 
otherwise  eligible,  without  previous  declaration  of  intention  to  become  a  citizen  and 
without  proof  of  residence  on  shore.  An  alien  who  desires  to  become  a  citizen  und_er 
this  law  should  be  advised  to  apply  to  the  clerk  of  the  nearest  United  States  district 
court  for  the  necessary  papers,  and  any  other  information  to  enable  him  to  become  a 
citizen  of  the  United  States  under  the  provisions  of  the  above-mentioned  law.  File 
26252-94,  J.  A.  G.,  Dec.  30,  1914;  C.  M.  O.  6,  1915,  7. 

3.  Chinese — The  statutes  of  the  United  States  with  respect  to  naturalization  authorize 
the  naturalization  only  of  white  persons,  or  persons  of  African  nativity  or  descent, 
or  members  of  any  Indian  tribe  or  nation  residing  in  the  Indian  Territory.  Section 
14  of  the  act  of  May  6,  1882  (22  Stat.,  61),  also  specifically  prohibits  the  naturalization 
of  Chinese.  The  naturalization  of  Chinese  and  other  Mongolians  and  of  all  persons 
not  white,  nor  of  African  nativity  or  descent,  nor  an  Indian  as  aforesaid,  is  void. 
(See  R.  S.  2169;  26  Stat.,  99,  sec.  43;  5  Saw.,  155;  16  Nov.,  50,61;  84Cal.,  163;  21  Pac. 
Rep.,  993;  149  U.  S.,  716;  Instructions  to  the  Dip.  Ser.  of  the  U.  S.,  p.  53.) 

4.  Same — A  person  of  the  Chinese  race,  born  in  the  United  States  of  alien  parents,  sub- 

ject to  the  jurisdiction  of  the  United  States,  is  a  citizen  of  the  United  States  by  birth 
without  regard  to  whether  or  not  the  laws  permit  the  naturalization  of  persons  of 
his  race.  See  File  26252-68,  June  19,  1912;  26252-100,  June  1,  1915;  26252-84;  26252- 
100.  See  also  U.  S.  v.  LEN  JIN,  192  Fed.  Rep.,  580. 

5.  Same—It  is  the  practice  of  the  Navy  Department,  where  claimants  to  citizenship 

have  submitted  the  best  evidence  they  can  obtain,  after  consideration  of  affidavits 
submitted  by  claimants,  to  refer  the  papers  to  the  Department  of  Labor  with  request 
for  a  statement  of  such  pertinent  facts  as  it  might  be  able  to  furnish.  Then,  when 
the  papers  are  returned  with  additional  information,  it  is  usually  possible  to  deter- 
mine whether  the  evidence  is  sufficient  to  establish  citizenship.  File  26252-100.  June 
1,1900. 

6.  Same — It  is  held  by  the  Federal  courts  that  in  deportation  proceedings  the  burden 

of  proof  is  upon  the  Chinese  person  claiming  to  be  a  natural-born  citizen,  and  the 
United  States  is  not  bound  to  establish  the  contrary.  See  YEE  GING  v.  U.  S.,  190 
Fed.Rep.,270;actMay5, 1892,  sec.  3, 27 Stat., 25;  File  26252-68,  J.  A.  G.,June  19,  1912. 
See  also  PROMOTION,  19. 

7.  Desertion— Effect  of  conviction  of  desertion  on  rights  of  citizenship.    See  DESER- 

TION, 23-29. 

8.  Dishonorable  discharge — Effect   on   citizenship  rights.    See  DISHONORABLE  DIS- 

CHARGE, 5,  6. 

9.  Enlisted  men— Naturalization  of  alien  enlisted  men  under  act  June  30, 1914  (38  Stat., 

395).    See  CITIZENSHIP,  2. 

10.  Same— Citizenship  for  pay  purposes.    File  26252-74,  Sec.  Navy,  Apr.  14, 1913. 

11.  Same — Where  the  Bureau  of  Navigation  decided,  after  consideration  of  all  the  evi- 

dence in  the  case,  that  a  Chinaman  who  was  an  enlisted  man  in  the  Navy  was  a  citi- 
zen of  the  United  States,  and  changed  his  birthplace  and  citizenship  on  the  depart- 
ment's records  accordingly;  and  the  Auditor  for  the  Navy  Department,  upon  a 
question  of  pay,  decided  after  consideration  of  the  same  evidence,  that  it  was  not 
sufficient  to  establish  the  fact  of  his  birth  in  the  United  States;  it  was  held  by  the 
department  that  the  decision  of  the  accounting  officers  is  not  in  any  sense  binding 
upon  the  department  in  its  determination  of  the  citizenship  or  identity  of  an  enlisted 
man.  and  that  no  new  evidence  having  been  obtained,  the  decision  of  the  Bureau  of 
Navigation  would  not  be  reopened.  File  26252-56,  Feb.  1,  1910.  Subsequently  the 
Comptroller  of  the  Treasury  reversed  the  auditor's  action  upon  consideration  of  the 
same  evidence.  Comp.  Dec.  Mar.  12, 1910,  File  26254-424. 

12.  Enlistments  in  the  Navy— Inasmuch  as  persons  enlisting  in  the  Navy  arenot  required 

by  law  to  be  citizens  of  the  United  States,  but  the  matter  is  merely  one  of  regulation, 
it  is  unnecessary  that  the  department  should  undertake  to  make  any  decision  con- 
cerning the  citizenship  of  men  under  unusual  circumstances.  File  26252-104,  J.  A. 
G.,  Apr.  25,  1916.  See  also  File  26252-101,  Sec.  Navy,  Nov.  6, 1915. 


CITIZENSHIP.  73 

In  considering  the  case  of  an  applicant  for  enlistment  whose  citizenship  status  was 
doubtful  it  was  said:  "  In  the  absence  of  a  specific  judicial  decision  on  the  subject  this 
department  does  not  feel  warranted  in  extending  the  statute  to  include  the  case  pre- 
sented, the  interpretation  of  statutes  conferring  citizenship  being  under  the  jurisdic- 
tion of  the  courts,  whose  decisions  should  be  followed  rather  than  anticipated  by 
executive  officers."  File  26252-101,  Sec.  Navy,  Nov.  6, 1915;  22252-104. 

"Except  as  provided  in  article  R-3527  (1)  no  person  shall  be  enlisted  or  reenlisted 
who  is  not  a  citizen  of  the  United  States  or  a  native  of  the  insular  possessions,  and 
who  does  not  understand  and  speak  the  English  language."  (Navy  Regulations, 
1913,  R-3523  (5).)  See  File  26262-104,  J.  A.  G.,  April  25, 1916.  See  also  ALIENS,  12. 

13.  Evidence  of.    See  Comp.  Dec.  Mar.  21,  1907  (73  S.  &  A.  Memo.  265). 

14.  Expatriation.    See  CITIZENSHIP,  17;  EXPATBIATION;  RETIRED  OFFICERS,  31. 

15.  Filipinos.    See  FILIPINOS. 

16.  Foreign-born  minor — Child  of   alien  parents — Mother  divorced   and  married  an 

American  citizen.    File  26252^-101,  Sec.  Navy,  Nov.  6,  1915. 

Children  born  abroad  of  aliens,  who  subsequently  emigrated  to  this  country  with 
their  families,  and  were  naturalized  here  during  the  minority  of  their  children,  are  citi- 
zens of  the  United  States.  (10  Op.  Atty.  Gen.,  329.)  File  26252-62,  J.  A.  G. ,  July  12, 
1911,  p.  2.  See  also  CITIZENSHIP,  25. 

17.  Foreign  country,  living  In— A  person  who  voluntarily  takes  up  his  residence  in 

another  country,  contributing  his  labor,  talents,  or  wealth  to  the  support  of  society 
there,  may  be  regarded  as  having  waived  his  right  of  protection  from  his  own  country; 
and  such  facts  may  become  material  upon  the  question  whether  he  has  not  expatri- 
ated himself  and  voluntarily  relinquished  his  rights  as  a  citizen  of  the  United  States. 
(See  3  Moore's  Digest  of  International  Law,  pp.  759-760.)  C.  M.  O.  29, 1915,  pp.  10-11. 
See  also  EXPATRIATION,  2;  RETIRED  OFFICERS,  31. 

18.  Same-;-By  the  general  law  as  well  as  by  the  decisions  of  the  most  enlightened  judges 

both  in  England  and  in  the  United  States  a  neutral  engaged  in  business  in  an  enemy's 
country  during  war  is  regarded  as  a  citizen  or  subject  of  that  country.  C.  M.  O. 
29. 1915,  pp.  10-11.  See  also  NEUTRAL,  1;  RETIRED  OFFICERS,  31. 

19.  Forfeiture  of  citizenship.    See  DESERTION.  23-29;  DISHONORABLE  DISCHARGE,  5,  6; 

CITIZENSHIP,  17, 18. 

20.  Guam— Inhabitants  of  Guam  desiring  to  oecome  citizens  of  the  United  States  may 

become  naturalized  by  application  to  a  court  of  competent  jurisdiction  in  the  United 
States,  but  can  not  be  naturalized  by  any  court  in  Guam.  File  26252-90,  Feb.  27, 1914. 
See  also  File  26252-96,  Feb.  10, 1915. 

21.  Hawaii— The  citizens  of  Hawaii  were  made  citizens  of  the  United  States  by  the  act  of 

April  30. 1990  (31  Stat.,  141).  See,  in  this  connection  File  26252-111,  J.  A.  G.  Jan.,  1917. 
Laws  bearing  upon  the  question  of  citizenship  of  Hawaiians.    See  File  26254-610:1. 

22.  Indians.    See  INDIANS,  3,  4. 

23.  Japanese^-  An  alien  born  abroad  of  Japanese  parents  is  not  eligible  to  become  a  natu- 

ralized citizenof  the  United  States;  and  where  a  certificate  of  naturalization  was  issued 
such  alien  by  a  court  of  competent  jurisdiction,  such  certificate  is  null  and  void  and 
does  not  entitle  him  to  the  benefits  of  citizenship.  File  26252,  Apr.  9, 1908;  85  S.  &  A. 
Memo.  622. 

24.  Midshipmen.    See  MIDSHIPMEN,  8. 

25.  Minor  children— The  children  of  persons  who  have  been  naturalized  under  any  law 

of  the  United  States,  being  under  the  age  of  21  at  the  time  of  the  naturalization  of  their 
parents,  shall,  if  dwelling  in  the  United  States,  be  considered  as  citizens  thereof. 
(See  R.  S.,  2172.)  File  26252-62,  J.  A.  G.,  July  12,  1911,  p.  2.  See  also  State  ex  rel. 
Carey  v.  Andriano  (92  Mo., 70);  Gumm  v.  Hubbard  (97  Mo., 311);  U.  S.  v.  Kellar  (13 
Fed.  Rep.,  82-84).  See  also  CITIZENSHIP,  16. 

26.  Name  misspelled  in  naturalization  certificate— This  defect  is  not  such  as  to  invali- 

date naturalization  (see  U.  S.  v.  ERICKSON,  188  Fed.  Rep.,  747).  The  spelling  of  the 
man's  name  in  the  certificate  of  naturalization  should  be  regarded  as  erroneous,  but 
not  fatally  defective,  and  the  department's  records  correct.  Accordingly  in  such  a 
case  a  man  may  properly  be  regarded  as  a  citizen  of  the  United  States,  and  the  spelling 
of  his  name  on  the  department's  records  need  not  be  changed.  File  24368-19,  J.  A.  G., 
June  20, 1916. 

27.  Officer— Renouncing  citizenship  by  resuming  citizenship  in  a  State  of  which  he  was 

formerly  a  citizen.    See  EXPATRIATION,  3;  AN.  REP.,  J.  A.  G..  1914,  p.  24. 

28.  Same— Only  a  citizen  may  be  an  officer.    File  26252-105, 105:1.  J.  A.  G..  June  10, 1916; 

17606-49,  J.  A.  G..  Dec.  17, 1912;  R-3301;  R.  S.  1428. 

29.  Persons  born  In  United  States.    File  26252-89,  J.  A.  G.,  Jan.  22, 1914.    See  also  U.  S. 

v.  WONG  Km  ARK,  169 U.  S.,  702;  CITIZENSHIP,  4. 


74  CITIZENSHIP. 

30.  Philippine  Islands.    See  FILIPINOS. 

31.  Porto  Rico — A  citizen  of  Porto  Rico  is  not  eligible  for  appointment  as  a  second  lieuten- 

ant in  the  Marine  Corps.  File  6730-04.  See  also  DOWNES  v.  BIDWELL,  181  U.S., 
214;  MARINE  CORPS,  68;  PORTO  Rico,  4. 

32.  Same— As  to  eligibility  of  citizens  of  Porto  Rico  for  employment  at  navy  yards.    See 

File  3194-3  and  3194-4. 

33.  Renouncing.  See  EXPATRIATION,  2. 

34.  Requirements  for— An  enlisted  man  of  the  Navy  was  born  in  Canada  of  alien  parents, 

and  at  the  age  of  18  was  brought  by  his  mother  to  the  United  States  and  was  subse- 
quently legally  adopted  by  citizens  of  the  United  States.  It  did  not  appear  that  the 
man's  father  was  ever  fully  naturalized  in  the  United  States,  although  it  was  stated 
that  the  father  died  after  taking  out  his  "declaration  papers. "  It  further  appears  that 
his  mother  is  now  a  citizen  of  the  United  States.  Held,  A  citizen  of  the  United  States 
can  not  by  adopting  a  child  of  foreign  nationality,  confer  on  such  child  the  privileges 
of  citizenship  in  the  United  States.  In  order  to  determine  whether  or  not  this  enlisted 
man  is  a  citizen  of  the  United  States  it  must  be  shown  positively,  (1)  whether  or  not 
his  father  was  fully  naturalized;  (2)  if  his  father  was  not  fully  naturalized  then  his 
citizenship  depends  upon  whether  his  mother  was  lawfully  naturalized  before  he 
became  of  age  and  if  she  did  not  become  so  naturalized  before  he  attained  his  majority, 
he  is  not  a  citizen  of  the  United  States  unless  he  can  produce  a  valid  certificate  of 
naturalization.  File  26252-62,  J.  A.  G.,  July  12,  1911.  See  also  File  1547-26-32,  for 
the  naturalization  laws  relating  to  Navy. 

35.  Residence  abroad.    See  CITIZENSHIP,  17, 18;  EXPATRIATION,  2;  RETIRED  OFFICERS,  31. 

36.  Restoration  of  rights  of  citizenship— To  deserter  by  pardon.    See  DESERTERS, 

17-20;  DESERTION,  41;  PARDON,  2, 11, 37, 39,  52. 

37.  Restoration  to  duty—Of  deserter— Effect  of  on  citizenship.    See  DESERTERS,  24. 

38.  Retired  officers — Living  abroad  indefinitely.   See  RETIRED  OFFICERS,  32. 

39.  Widow— The  naturalization  of  an  alien  woman,  a  widow,  confers  citizenship  upon  her 

minor  son.  (Van  Dyne's  "Citizenship,"  p.  118,  referring  to  R.  S.  2172).  File  26252-62, 
J.  A.  G.,  July  12, 1911,  p.  3. 

40.  Wife.— Citizenship  of.    See  File  26252-62,  J.  A.  G.,  July  12, 1911,  p.  3. 

CIVIL  ACTIONS. 

1.  Liability  of  officers  and  enlisted  men  to.    See  LEGAL  LIABILITY;  MEMBERS  OF 
COURTS-MARTIAL,  7;  SECRETARY  OF  THE  N  ^VY,  1. 

CIVIL  AUTHORITIES.    See  also  GENERAL  ORDER  No.  121,  September  17,  1914. 

1.  Action  by  commanding  officers — Where  men  convicted  by  the  civil  authorities. 

See  GENERAL  ORDER  No.  121,  Sept.  17,  1914, 1,  2,  4-6. 

2.  Agreement — Required  of  State  authorities.    See  GENERAL  ORDER  No.  121,  Sept.  17, 

1914. 1. 

3.  Same — Not  required  of  Federal  authorities.    See  GENERAL  ORDER  No.  121,  Sept.  17, 

1914. 2. 

4.  Arrest  and  acquittal  by  civil  authorities — Is  a  defense  to  unauthorized  absence  but 

otherwise  if  convicted.  See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD 
EXPIRED,  3. 

5.  Arrest  of  deserters  by  civil  authorities.    See  CIVIL  OFFICERS,  2;  DESERTERS,  2-6. 

6.  Bail— If  enlisted  man  arrested  by  civil  authorities  and  returns  to  ship  on  bail,  the 

commanding  officer  may  grant  him  leave  of  absence  to  appear  for  trial.  See  BAIL,  1; 
GENERAL  ORDER  No.  121,  Sept.  17, 1914, 14;  JURISDICTION,  8. 

7.  Same— Pay.    See  BAIL,  2. 

8.  Comity  between  civil  and  naval  authorities— It  is  the  practice  of  this  department 

to  cooperate  to  the  fullest  extent  with  the  civil  authorities,  both  Federal  and  State, 
where  demand  is  made  for  the  surrender  to  them  of  any  person  in  the  naval  service 
who  is  charged  by  either  of  said  authorities  with  crime.  To  that  end  the  department 
has  issued  elaborate  instruction  son  the  subject  (G.  0. 121,  Sept.  17, 1914),  and  in  proper 
cases  surrender  of  the  person  requested  is  invariably  made  upon  compliance  by  the 
civil  authorities  with  certain  conditions  exacted  by  the  Secretary  of  the  Navy  in  the 
general  order  cited.  The  department  in  some  instances  has  returned  parole  violators, 
and  assisted  in  the  identification  of  escaped  convicts,  who ,  of  course ,  are  very  undesirable 
for  the  naval  service.  The  civil  authorities  generally  have  become  very  familiar  with 
the  department's  practice,  and  in  most  cases  willingly  meet  thedepartment'sdemands. 
On  the  other  hand,  where  enlisted  persons  in  the  naval  service  are  arrested  by  the  civil 
authorities  while  away  from  their  commands,  the  State  authorities  in  many  cases,  as  a 
matter  of  comity,  inform  the  accused  'scommanding  officer,and  in  so  me  instances  men 


CIVIL    AUTHORITIES.  75 

have  been  released  and  turned  over  to  the  custody  of  their  commanding  officer  until 
their  appearance  is  desired  in  the  civil  court.  File  26524-209.  Sec.  Navy,  Dec.  13, 1915. 

It  is  the  department's  policy  and  purpose  to  cooperate  with  the  civil  authorities  to 
the  fullest  extent_  in  proper  cases,  and  upon  identification  and  compliance  by  the 
civil  authorities  with  the  conditions  enacted  in  General  Order  No.  121  the  men  desired 
are  promptly  surrendered  to  the  civil  authorities,  who  have  become  very  familiar 
with  the  department's  practice  on  the  subject.  File  26524-207,  J.  A.  G.,  Nov.  20, 1915. 

"It  is  the  policy  of  the  Navy  Department  at  all  times  to  cooperate  with  the  civil 
authorities,  both  Federal  and  State,  and  not  in  any  manner  where  it  can  be  avoided 
to  interpose  any  obstacle  to  the  due  course  of  civil  or  criminal  proceedings."  File 
26524-275:5,  J.  A.  G.,  Aug.  8, 1916.  See  also  CIVIL  AUTHORITIES,  16. 
9.  Commanding  officer— Duty  of,  when  civil  authorities  request  delivery  of  an  enlisted 
man.  See  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  4. 

10.  Same — Arrested  by — Should  report  his  whereabouts    to    proper    authorities.    See 

ARREST,  7;  COMMANDING  OFFICERS,  2. 

11.  Contempt  of  court — An  enlisted  mai  was  delivered  to  civil  authorities,  on  proper 

request  being  made,  for  haying  been  "adjudged  in  contempt  of  court  by  the  Supreme 
Court  of  New  York  for  having  failed  to  make  a  return  to  a  writ  of  habeas  corpus  requir- 
ing the  production  of  his  infant  child  before  said  court,"  etc.  File 26524-191,  J.  A.  G ., 
Oct.  19, 1915.  • 

12.  Convicts — And  fugitives  from  justice  discharged  as  undesirable — In  a  case  where  a 

request  was  made  upon  the  Navy  Department  by  the  civil  authorities  for  delivery 
of  an  enlisted  man,  tne  department  stated  as  follows: 

"It  being  established  by  the  foregoing  that  the  above-named  man  was  a  convicted 
criminal  and  fugitive  from  justice  at  the  time  of  his  enlistment  in  the  Navy,  it  is  di- 
rected that  instructions  be  issued  immediately  for  his  discharge  from  the  Navy  as 
undesirable,  but  that  said  discharge  be  held  in  abeyance  until  such  time  as  a  civil 
officer  may  call  at  the  Naval  Training  Station,  Great  Lakes,  111.,  to  apprehend  him 
under  the  requisition  of  the  governor  of  Pennsylvania,  in  order  that  he  may  be  taken 
into  custody  by  such  officer  immediately  upon  his  discharge."  File  26524-194,  Sec. 
Navy,  Oct.  18, 1915;  C.  M.  O.  35, 1915,8.  See  also  CoNvicTSx2;  FUGITIVE  FROM  JUS- 
TICE. 

13.  Cooperation — Of  department  with  civil  authorities.    See  CIVIL  AUTHORITIES,  8, 16. 

14.  Date — Fixed  for  trial  of  enlisted  men  desired  by  civil  authorities  should  be  shown  hi 

requisition  papers.    File  20524-259,  Sec.  Navy,  Apr.  18, 1916. 

15.  Delivery  of  men  to  civil  authorities — Duties  of  commanding  officers.    See  GENERAL 

ORDER  No.  121,  Sept.  17, 1914,  4. 

16.  Department — Desires  to  cooperate  with  civil  authorities — The  department  desires  in 

every  way  to  cooperate  with  the  civil  authorities,  but  where  the  civil  authorities 
requested  that  an  enlisted  man  of  the  Hospital  Corps  on  duty  at  a  naval  station  in  Cuba 
be  transferred  to  the  United  States  in  order  that  ne  might  be  taken  in  custody  upon 
bench  warrant  and  certified  copy  of  indictment  for  trial  by  the  civil  authorities,  for 
an  offense  which  is  in  practice  punished  by  a  nominal  punishment  such  as  a  small  fine, 
the  department  regretfully  declined  to  do  so.  Such  transfer  would  necessitate  sending  a 
relief  for  the  man,  and  the  action  requested  would  in  effect  amount  to  granting  the  man 
a  leave  of  absence  and  visit  home  at  a  nominal  cost  if  convicted,  and  would  fail  of  its 
purpose  as  a  punitive  proceeding.  Also  men  under  orders  to  undesirable  duty  outside 
the  United  States  might  deliberately  avail  themselves  of  the  precedent  which  would  be 
established  in  this  case  in  order  collusively  to  secure  their  return  after  a  short  tour 
of  duty  abroad.  File  26524-181:1,  Sec.  Navy,  Oct.  19, 1915;  C.  M.  O.  35, 1915,  8. 

In  this  case  the  Department  of  Justice  made  a  further  request,  stating  facts  which 
presented  an  "exceptional"  and  "aggravated"  case,  for  which  if  convicted  it  would 
be  within  the  power  of  the  court  to  impose  a  sentence  of  one  year's  imprisonment. 
Under  these  circumstances  the  department  issued  the  necessary  directions  to  deliver 
this  man  to  the  civil  authorities  for  trial.  File  26524-181:2,  Sec.  Navy,  Nov.  1,  1915; 
C.  M.  0. 42, 1915, 9.  Seealso  File 26524-1 44:4,  Sec.  Navy,  July  8,  1915;  CIVIL  AUTHORI- 
TIES, 8. 

17.  Deserters — Arrest  by  civil  authorities.    See  DESERTERS,  2-6. 

Application  of  the  provisions  of  General  Order  No.  110.  See  GENERAL  ORDER  No. 
110,  July  27, 1914,  20. 

Warrant  officer  (a  deserter)  apprehended  by  civil  authorities.  See  CIVIL  AUTHORI- 
TIES, 49. 

18.  Enlisted  men,  delivery  to.    C.  M.  0. 10, 1915,  7;  22, 1915, 6:  27, 1915,  7;  29, 1915,  7;  31, 

1915,  5;  35, 1915,  8;  42,  1915,  9.    Seealso  GENERAL  ORDER  No.  121,  Sept.  17, 1914. 


76  CIVIL    AUTHORITIES. 

19.  Same— There  is  no  law  which  relates  to  the  delivery  of  enlisted  men  in  the  naval  service 

to  civil  authorities,  Federal  or  State,  but,  as  held  by  the  Attorney  General,  it  rests 
entirely  in  the  discretion  of  the  President  in  what  cases  and  upon  what  conditions 
persons  in  the  Navy  shall  be  so  delivered.  File  26524-259:1,  Sec.  Navy,  Apr.  25, 1916. 

20.  Expedition— The  office  of  the  Judge  Advocate  General  makes  every  effort  to  expedite 

action  in  cases  coming  under  G.  0. 121  in  order  to  avoid  friction  with  the  civil  authori- 
ties, and  thereby  jeopardize  the  system  embodied  in  that  general  order.  File  26524- 
186,  J.  A.  G.,  Oct.  21,  29,  1915.  See  also  CIVIL  AUTHORITIES,  29. 

21.  Extradition.    See  CIVIL  AUTHORITIES,  8,  16,  42;  GENERAL  ORDER  No.  121.  Sept. 

17, 1914, 10. 

22.  Fugitive   from   justice— Discharged  as  undesirable.    See  CIVIL  AUTHORITIES,  12; 

CONVICTS,  2. 

23.  General  Order  No.  1 1O — Application  of  provisions  of  ,to  deserters.    See  CIVIL  AUTHORI- 

TIES, 17;  GENERAL  ORDER  No.  110,  July  27, 1914,  20. 

24.  General  Order  No.  121— Exact  compliance  with  directed.    Sec  GENERAL  ORDER 

No.  121,  Sept.  17,  1914,  6. 

25.  Governor's  requisition— Necessary  in  certain  cases.    See  GENER  S.L  ORDER  No.  121. 

Sept.  17, 1914, 10. 

26.  Habeas  corpus    proceedings— Federal  courts.    See  GENERAL    ORDER    No.    121, 

Sept.  17, 1914, 11.         * 

27.  Same— State  courts.    See  GENERAL  ORDER  No.  121,  Sept.  17,  1914,  12. 

28.  Hawaii— Application  of  G.  0. 121.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914, 13. 

29.  Judge  Advocate  General's  Office — Delay  in  civil  authorities  cases  reaching  the 

office.    File  12475-73,  J.  A.  G.,  Mar.  16, 1916.    See  also  CIVIL  AUTHORITIES,  20. 

30.  Las  Animus.    File  26524-68,  J.  A.  G.,  July  25, 1914;  26524-75,  Aug.  28, 1914. 

31.  Leave  of  absence— May  be  granted  by  commanding  officer  to  an  enlisted  man  who 

returns  to  ship  on  bail.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914, 14. 

32.  Man  in  hands  of— Should  inform  naval  authorities.    C.  M.  O.  14, 1914,  4. 

33.  Officers  arrested  by.    C.  M.  O.  24, 1886;  10, 1909;  7, 1914;  19, 1915, 1, 9;  G.  C.  M.  Rec. 

31509. 

34.  Officer  in  hands  of — Should  report  his  whereabouts  to  proper  authorities.    C.  M.  O. 

19, 1915, 9.    See  also  COMMANDING  OFFICERS,  2. 

35.  Panama— Application  of  G.  0. 121.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  17. 

36.  Parole  violators— Where  the  civil  authorities  requested  that  an  enlisted  man  be  turned 

over  to  them,  as  he  was  a  "parole  violator,"  it  was  directed  that  he  be  "discharged 
from  the  Navy  as  undesirable  and  turned  over  to  a  representative"  of  a  certain  State 
reformatory,  which  institution  had  been  requested  to  call  for  him  as  soon  as  practi- 
cable. Ffle  7657-290:2,  Sec.  Navy,  June  7,  1915;  C.  M.  O.  22,  1915,  6.  See  also  File 
26524-319,  J.  A.  G.,  Nov.  17, 1916;  CIVIL  AUTHORITIES,  8. 

37.  Prisoners,  naval — Wanted  by  civil  authorities  for  trial.    See  GENERAL  ORDER  No. 

121,  Sept.  17, 1914, 15,  16. 

38.  Same— Wanted  as  witnesses  or  parties  in  civil  courts.    File  26524-117,  J.  A.  G.,  Dec.  28, 

1915.    Seeaiso  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  15,  16,  23. 

39.  Process,  service  by— Upon  court-martial  prisoners.    See  GENERAL  ORDER  No.  121, 

Sept.  17, 1914, 15,  16. 

40.  Records— Production  of  records  of  Navy  Department  hi  civil  courts.    SeeCiviL  COURTS, 

2;  COURTS  OF  INQUIRY,  12;  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  23. 

41.  Same— Preliminary  examination  of  records.    See  GENERAL  ORDER  No.  121,  Sept.  17, 

1914,  23. 

42.  Bequest  of  civil  authorities— To  bring  enlisted  man  into  jurisdiction  denied— An 

attorney  representing  a  civilian  in  divorce  proceedings  against  his  wife  requested  the 
department  to  require  a  certain  enlisted  man  who  was  named  as  corespondent  serying 
on  board  a  cruising  vessel  of  the  Navy  to  come  to  Washington,  D.  C.,  and  submit  to 
the  jurisdiction  of  the  civ  il  court  in  the  District  of  Columbia,  "  by  permitting  personal 
service  of  subpoena  upon  him."  Held,  That  it  would  be  contrary  to  the  department's 
policy  to  require  this  enlisted  man  to  come  to  Washington  for  the  purpose  of  sub- 
mitting to  the  jurisdiction  of  the  civil  court,  and  he  must  be  considered  in  the  same 
status  as  witnesses  who  are  desired  in  private  litigation,  and  who  are  beyond  the 
jurisdiction  of  the  court  in  which  such  litigation  is  pending.  Accordingly,  the  above 
request  was  denied  and  attention  invited  to  General  Order  No.  121,  par.  18(a).  File 
26276-112,  Sec.  Navy,  Sept.  16,  1915;  C.  M.  O.  31,  1915,  5. 

43.  Requisition  of  Governor— Necessary  in  certain  cases.    See  GENERAL  ORDER  No.  121, 

Sept.  17, 1914, 10. 


CIVIL    AUTHORITIES.  77 

44.  Samoa— Application  of  G.  O.  121.    See  GENERAL  ORDER  No.  121,  Sept.  17,  1914,  22. 

45.  Subpoenas — Service  of  subpoenas  by  civil  authorities  on  persons  in  the  naval  service. 

See  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  23. 

46.  Trial — Date  fixed  for  trial  of  enlisted  men  desired  by  civil  authorities  should  be  shown 

in  requisition.    File  26524-259.  Sec.  Navy,  Apr.  18, 1916. 

47.  Unjustifiable  arrest  of  a  petty  officer.    See  ARREST,  37.    See  File  7657-374:1,  Sec. 

Navy,  July  10, 1916,  where  a  police  brutally  assaulted  enlisted  men  in  arresting  them 
without  apparent  cause. 

48.  Unusual  circumstances — In  a  recent  case  it  developed,  after  a  man  had  been  deliv- 

ered to  the  civil  authorities,  that  there  were  certain  unusual  circumstances  and  irreg- 
ular proceedings  connected  with  the  efforts  of  the  civil  authorities  to  secure  the  deliv- 
ery of  the  man,  which  should  have  been  communicated  to  the  department  at  the 
time  telegraphic  instructions  were  requested.  It  is  possible  that,  nad  the  depart- 
ment been  fully  informed  thereof  at  the  time,  the  delivery  of  the  man  to  the  civil 
authorities  might  not  have  been  authorized,  at  least  pending  correspondence  with 
the  State  authorities.  File  26524-157: 1,  Sec.  Navy,  July  3, 1915;  C.  M.  O.  27,  1915,  7. 

49.  Warrant  officer  (machinist)— Continued  in  "  Desertion"  until  delivered  by  the  civil 

authorities.    C.  M.  O.  17,  1911. 

50.  Witnesses— Enlisted  men  in  naval  service  desired  by  civil  authorities  as  witnesses. 

C.  M.  O.  31, 1915,  5.    See  also  CIVIL  AUTHORITIES,  42. 

51.  Same— Enlisted  man  on  duty  in  Haiti — Department  regretfully  declined  to  comply 

with  request  of  civil  authorities.    File  26270-126,  Sec.  Navy,  Nov.  27,  1915. 

52.  Same — Prisoners  wanted  by  civil  authorities  as  witnesses.    See  GENERAL  ORDER 

No.  121,  Sept.  17, 1914, 15. 

CIVIL  COURTS. 

1.  Confinement— By  order  of  civil  courts.    See  CONFINEMENT,  6. 

2.  Copies — Of  records,  documents,  etc.,  furnished  on  call  of— It  is  the  invariable  practice 

of  this  department  to  decline  to  furnish  in  the  case  of  legal  controversies,  at  the 
request  of  the  parties  litigant,  copies  of  papers  or  other  information  to  be  used  in  the 
course  of  the  proceedings;  but  the  department  will  promptly  furnish  copies  of  papers 
or  records  in  such  cases  upon  call  of  the  court  before  which  the  litigation  is  pending. 
File  12475-53:1,  Sec.  Navy,  Jan.  30, 1915;  letter  of  Atty.  Gen.  Jan.  18,  1915,  file  12475- 
53:1.  (SeealsoG.  O.  No.  121.)  C.  M.  O.  6, 1915,  8.  See  also  File  12475-46.  Sec.  Navy, 
July  12,  1913;  26250-^839:2,  Sec.  Navy,  Sept.  27, 1916;  26250-839:4,  Sec.  Navy,  Oct.  9, 
1916;  COURTS  OF  INQUIRY,  12;  GENERAL  ORDER  No.121,  Sept.  17, 1914,  23;  RECORDS 
OF  OFFICERS,  9. 

3.  Court  of  Inquiry  record — Copy  of  requested  by  civil  courts.    See  COURTS  OF  IN- 

QUIRY, 12. 

4.  Enlistment  of  criminals — To  escape  prosecution. — See  CONVICTS,  2,  3;  ENLIST- 

MENTS, 5. 

5.  Error  of  procedure — By  naval  courts-martial — Can  not  be  reviewed  by  civil  courts. 

See  JURISDICTION,  18,  26-28,  35,  37,  39. 

6.  Fraudulent  enlistment— Of  minor — Civil  courts  will  not  discharge.    See  FRAUDU- 

LENT ENLISTMENT,  57, 58, 59. 

7.  Litigation  In  civil  courts— It  is  a  policy  of  the  department  of  long  standing  not  to 

act  upon  any  matters  which  have  been  actually  presented  to  the  civil  courts  for 
adjudication,  pending  the  results  of  such  suits.  This  policy  applied  to  case  where 
complaint  of  nonsupport  is  made  against  an  officer  who  has  instituted  divorce  pro- 
ceedings against  complainant.  File  28478-22:1,  Sec.  Navy,  Apr.  30,  1915;  C.  M.  O. 
16, 1915.  5. 

8.  Same — Failure  of  husband  to  contribute  to  wife's  support — In  a  case  where  a  wife 

of  enlisted  man  appealed  to  department  it  was  "suggested  that  your  redress  lies  in 
the  civil  courts."  (See  G.  O.  121,  par.  14.)  File  26524-214,  Sec.  Navy,  Dec.  8,  1915. 

9.  Matters  presented  to — Department's  policy  outlined.    See  CIVIL  COURTS,  7.  8. 

10.  Procedure — Errors  of  procedure  of  naval  courts-martial  can  not  be  reviewed  by  civil 

courts.    See  JURISDICTION,  18,  26-28,  35,  37,  39. 

11.  Records — Papers  and  information  for  use  in  civil  courts  furnished  only  upon  call  of 

court.  See  CIVIL  COURTS,  2;  COURTS  OF  INQUIRY,  12;  GENERAL  ORDER  No.  121, 
Sept.  17, 1914,  23;  RECORDS  OF  OFFICERS,  9. 

12.  Reviewing  court-martial  trials.    See  JURISDICTION,  18,  26-39. 

13.  Sufficiency  of  charges  and  specifications — Can  not  be  reviewed  by  the  civil  courts. 

(Ex  parte  Dickey,  204  Fed.  Rep.,  372.)    See  JURISDICTION,  28,  36,  37,  39. 

14.  Supreme  court— Of  the  District  of  Columbia.    C.  M.  O.  49.  1915,  23. 

15.  United  States  a  party — Advancement  of  case  on  the  docket.    File  26266-161:4,  Sec. 

Navy,  Dec.  19, 1912. 


78  CIVIL   WAR   SERVICE. 

16.  United  States  district  courts.    C.  M.  O.  6, 1915,  7;  31, 1915,  7. 

CIVIL  DISABILITIES.   C.  M.  O.  36,  1901,  2.    See  also  DESERTION,  23-29;  DISHONOR- 
ABLE DISCHARGE,  5,  6. 

CIVIL  EMPLOYEES. 

1.  Criticism  or  commendation— By  the  Secretary  of  the  Navy.    See  COMMENDATORY 

LETTERS,  2.  See  also  PUBLIC  REPRIMAND;  REPRIMAND,  10;  SecRETARY  OF  THE 
NAVY,  63. 

2.  Jury  duty.    See  File  21090-3;  20  Op.  Atty.  Gen.,  618.    See  also  JURY,  1. 

3.  Leave  of  absence— Without  pay.    See  LEAVE  OP  ABSENCE,  2,  13. 

4.  Retired  enlisted  men.    See  RETIRED  ENLISTED  MEN,  3. 

5.  Vaccination.    See  VACCINATION. 

CIVIL  ENGINEER  CORPS. 

1.  Promotions— Due  to  retirement  of  Civil  Engineer  Peary.    See  APPOINTMENTS,  13. 

2.  Status.    See  G.  O.  274,  Nov.  1,  1881. 

CIVIL  LIABILITY.    See  LEGAL  LIABILITY. 

CIVIL  LIFE. 

1.  Appointment  as  naval  officer  from— Constructive  service  for.    See  CONSTRUCTIVE 

SERVICE,  1. 

2.  Clemency— Extended  because  officer  having  been  appointed  from  civil  life  had  been 

in  service  only  two  weeks.    C.  M.  O.  59,  1904,  2.    See  also  CLEMENCY,  10. 

3.  Marine  officers.    See  APPOINTMENTS,  20. 

CIVIL  OFFICE  OR  EMPLOYMENT. 

1.  Enlisted  men,  retired.    See  RETIRED  ENLISTED  MEN. 

2.  Officers,  retired.    See  RETIRED  OFFICERS. 

CIVIL  OFFICERS. 

1.  Certificates  of— As  evidence.    C.  M.  O.  37,  1909,  8;  47,  1910,  4;  1,  1911,  4.    See  also 

CERTIFICATES.  3,  4.  5. 

2.  Definition— A  "pursuer"  of  a  detective  agency  incorporated  under  the  laws  of  New 

Jersey,  while  not  a  "civil  officer."  in  the  strict  sense,  is,  nevertheless,  such  a  person  as 
contemplated  by  the  act  of  February  16,  1909  (35  Stat.,  621),  and  therefore  entitled 
to  make  arrests  of  deserters.  File  26516-38,  J.  A.  G.,  Dec.  3, 1910,  p.  6.  See  also  DE- 
SERTERS, 2-6. 

CIVIL  RESPONSIBILITY.    See  LEGAL  LIABILITY. 

CIVIL  RIGHTS.    See  DESERTERS,  13,  14, 17-24;  DESERTION,  23-29;  DISHONORABLE  DIS- 
CHARGE, 5,  6. 

CIVIL  SERVICE. 

1.  Civil  service  act.    See  CIVIL  SERVICE  ACT. 

2.  Retired  enlisted  men.    See  RETIRED  ENLISTED  MEN,  3. 

3.  Retired  officer — Taking  examination  and  accepting  a  clerical  position.    See  RETIRED 

OFFICERS,  9. 

CIVIL  SERVICE  ACT. 

1.  Appointments  under— The  Attorney  General  has  held  it  to  l>o  the  function  and  duty 
of  the  Civil  Service  Commission  to  determine  the  eligibility  of  appointees  to  positions, 
rather  than  the  officers  making  the  appointments.    File  5252-32,  J.  A.  G.,  Jan.  26, 
1910,  p.  5. 
CIVDL,  WAR.    See  CIVIL  WAR  SERVICE;  MARK  OF  DESERTION,  1;  NAME,  CHANGE  OF,  16. 

CIVIL  WAR  CASES. 

1.  Removal  of  mark  of  desertion.    See  MARK  OF  DESERTION,  1,  9. 

CIVIL  WAR  SERVICE. 

1.  Certificate  of  discharge— Where  records  show  that  an  enlisted  man  was  appointed 
an  acting  third  assistant  engineer  without  being  discharged  from  his  enlistment, 
and  .that  he  served  continuously  as  such  enlisted  man  and  acting  officer  until  dis- 
charged from  the  Navy:  Held,  That  a  certificate  of  discharge  should  not  be  granted 
from  his  enlistment,  as  a  statement  of  the  man's  service,  as  shown  by  the  department's 
records,  is  all  that  is  required  by  the  Pension  Office  hi  acting  upon  claims  for  pensions. 
The  former  policy  of  fixing  a  fictitious  date  of  discharge  and  issuing  a  certificate  in 
cases  of  this  character  discontinued.  File  26539-481. 


CIVIL   WAR   SERVICE.  79 

2.  Chiefs  of  bureaus— Retired  after  Civil  War  service.    See  BUREAU  CHIEFS,  8, 10. 

3.  Naval  Academy — A  retired  naval  officer  was  a  student  at  the  Naval  Academy  during 

the  Civil  War;  on  January  7, 1907,  the  Court  of  Claims  decided  that  he  was  entitled 
to  retirement  with  the  rank  and  pay  of  the  next  higher  grade  under  section  11  of  the 
personnel  act  (30  Stat.,  1007),  from  which  decision  no  appeal  was  taken  by  the  Gov- 
ernment; on  April  20, 1908,  in  another  case,  the  Court  of  Claims  held  that  an  officer  of 
the  Navy  who  was  a  student  at  the  Naval  Academy  during  the  Civil  War  was  not 
entitled  to  the  benefits  of  section  11.  Under  these  circumstances,  advised  that  the 
first-mentioned  officer  be  not  given  the  rank  of  rear  admiral  on  the  retired  list.  File 
27231-8,  J.  A.  G.,  Jan.  25, 1910.  See  also  File  19245-43, 1.  A.  G..  Mar.  7,  1912;  MOSER 
v  U.  S.,  Ct.  Cls.  86;  U.  S.  v  JASPER,  38  Ct.  Cls.  202,  40  Ct.  Cls.  76,  43  Ct.  Cls.  368. 

4.  Official  records — A  dvised;  That  the  service  of  a  certain  officer  during  the  Civil  War, 

except  under  his  first  appointment  on  board  the  U.  S.  S.  Rhode  Island,  was  as  an  act- 
ing assistant  paymaster;  that  it  is  contrary  to  the  policy  of  the  department  to  alter 
official  records;  but  that  there  would  be  no  objection  to  placing  the  papers  embodying 
this  officer's  claim  with  the  other  papers  relating  to  his  case  in  the  files  of  the  depart- 
ment. File  26510-225:1,  J.  A.  G.,  June  10, 1911.  See  also  RECORDS  OF  THE  DEPART- 
MENT, 4. 

5.  Retired  officer  advanced  for  Civil  War  service— The  Army  practice  has  been  to  not 

commission  anew  those  officers  on  the  retired  list  who  were  advanced  in  rank  therefor 
by  the  act  of  April  23, 1904  (33  Stat.  264).  The  naval  practice  has  been  the  same  since 
thepassageof  the  Actof  June 29, 1906.  File 26509-33,  J.  A.  G..March24,1910,p.3.  The 
department  has  held  that  such  officer  receives  the  rank  and  three-quarters  pay  of  the 
higher  grade,  but  there  is  no  change  in  the  officer's  grade.  File  26509-33,  J.  A.  G., 
March  24, 1910,  p.  4.  The  Personnel  Act  (Mar.  3, 1899,  30  Stat.  1007)  provides  that 
officers  having  had  Civil  War  service  may  be  commissioned  without  tne  consent  of 
the  Senate.  The  act  of  June  29, 1906  (34  Stat.  554)  as  amended  by  the  act  of  March  3, 
1909  (35  Stat.  753)  applies  practically  to  only  such  officers  as  were  retired  prior  to 
March3,1899.  File  26509-33,  J.  A.  G.,  March  24, 1910,  p.  4.  For  purposes  of  retirement 
in  next  higher  grade,  student  service  at  the  Naval  Academy  during  the  Civil  War 
doesnot  count  as  service.  File  19245^43,  J.  A.  G.,  March  7, 1912. 

6.  Same— A  retired  officer  of  the  Navy  claimed  the  rank  of  the  next  higher  grade  on  account 

of  Civil  War  service,  under  section  11  of  the  act  of  March  3,  1899  (30  Stat.,  1007),  as 
amended  by  the  act  of  June  29,  1906  (34  Stat.,  554).  While  the  records  of  the  Navy 
Department  did  not  disclose  the  service  claimed,  neither  was  there  any  evidence  at 
hand  to  rebut  the  evidence  offered  by  the  claimant;  in  order  that  no  injustice  might 
be  done  the  Secretary  of  the  Navy  referred  the  case  to  the  Court  of  Claims  for  its  finding 
of  facts  and  conclusion  of  law.  The  court  first  found  against  the  claimant,  but  new 
evidence  being  adduced  set  aside  its  former  findings  and  reported  that  claimant  had 
rendered  the  service  claimed  and  was  entitled  to  the  rank  of  the  next  higher  grade. 
Held,  that,  in  the  absence  of  evidence  to  the  contrary,  the  findings  and  conclusion  of 
the  Court  of  Claims  should  be  treated  as  final  (Berger  v  U.  S.,  36  Ct.  Cls.,  243),  and  the 
necessary  steps  should  be  taken  without  delay  to  give  claimant  the  advancement 
to  which  it  now  appears  he  is  entitled.  File  26266-311,  J.  A.  G.,  Feb.  25, 1915;  C.  M.  O. 
10,1915,13. 

CIVILIANS. 

1.  Desertion — Civilians  aiding  enlisted  men  of  the  naval  service  to  desert.    See  DESER- 

TION, 12. 

2.  Military  commissions — Trial  by.    See  MILITARY  COMMISSIONS,  1. 

3.  Retired  list  of  officers— A  civilian  can  not  be  appointed  to  the  retired  list.    File  27231- 

67,  J.  A.  G.,  Aug.  20, 1915. 

CIVILIAN  COAL  HANDLER. 

1.  Death,  of — Court  of  inquiry  record — Where  sent.    Ct.  Inq.  Rec.  6196. 

CIVILIAN  COUNSEL.    See  COUNSEL,  15, 16. 

CIVILIAN  DENTIST  AT  THE  NAVAL  ACADEMY.    See  DENTAL  SURGEONS,  7. 

CIVILIAN  OUTFITS. 

l.  Prisoners— On  discharge.    See  PRISONERS,  6. 

CIVILIAN  WITNESSES.    See  WITNESSES,  25-27. 
50756°— 17 6 


80  CLEMENCY. 

CLAIMS.    See  also  CLAIMS  AGAINST  THE  UNITED  STATES. 

1.  Against  the  Government.    See  CLAIMS  AGAINST  THE  UNITED  STATES. 

2.  Household  goods — Where  an  officer  accepts  free  transportation  of  his  household  goods 

offered  by  the  Government,  he  assumes  any  risks  involved;  the  Government  does 
not  become  an  insurer,  being  a  "carrier  without  hire."  File  5459,  Bee.  Navy,  Jan.  8, 
1907. 

3.  Influencing  legislation — Attorney's  claim  for  fees.    See  DEBTS,  18;  LEGISLATION,  2. 

4.  Limitations  upon  claims.    See  File  9410;  2527-1903;  1370-1903. 

5.  Officers,  against — The  department  will  not  in  any  manner  lend  its  aid  to  the  enforce- 

ment of  any  claim  against  an  officer  which  may  be  based  in  whole  or  in  part  upon 
services  real  or  supposed  alleged  to  have  been  rendered  in  violation  of  Navy  Regu- 
lations, 1913,  R-1517.  File  13673-3192,  Sec.  Navy,  Nov.  11,  1914. 

6.  Payment  of— Authority  to  make.    See  AUDITOR  FOE  THE  NAVY  DEPARTMENT,  5. 

7.  Reimbursement.    File  4753-95. 

CLAIMS  AGAINST  THE  UNITED  STATES.    See  also  CLAIMS. 

1.  Call  for  evidence— By  Court  of  Claims.    See  COURT  OF  CLAIMS,  1, 3. 

2.  Officers'  official  duties— Section  5498,  Revised  Statutes,  prohibiting  officers  of  the  G9v- 

ernment  to  act  as  attorneys  for  claimantsor  assistthem  in  any  manner  in  theprosecution 
of  their  claims  against  the  Governmentj  has  no  application  to  any  action  tnat  may  be 
taken  by  an  officer  "in  discharge  of  his  proper  official  duties."  Therefore,  advised, 
that  the  action  of  the  Bureau  of  Navigation  in  furnishing  extracts  from  records  of 
enlisted  men  to  the  Commonwealth  of  Massachusetts  is  not  ii  conflict  with  the 
above  section  of  the  Revised  Statutes,  even  though  such  information  may  be  indirectly 
obtained  by  claimants  in  connection  with  applications  for  pensions.  It  is  a  question 
whether  the  Bureau  of  Navigation  should  continue  to  furnish  such  information  in 
view  of  the  uses  made  thereof  by  the  Adjutant  General's  Department  of  Massachu- 
setts. File  16881-2,  Sec.  Navy,  Mar.  30, 1910. 

3.  Officer  preparing  arguments  for  an  allottee-ylt  is  not  part  of  the  official  duty  of  a 

pay  officer  in  the  Navy  to  prepare  arguments  in  support  of  claim  of  allottee  of  an  en- 
listed man  and  such  action  is  expressly  prohibited  under  penalty  of  fine  and  impris- 
onment by  section  5498  of  the  Revised  Statutes.  File  26254-419,  Sec.  Navy,  May  10, 
1910.  See  also  CAPT.  TYLER'S  MOTION,  18  Ct.  Cls.  25;  16  Op.  Atty.  Gen.  478. 

4.  Officer  voluntarily  paying  obligation  of  United  States — A  naval  militia  officer  who 

voluntarily  pays  an  obligation  of  the  United  States  is  not  entitled  to  reimbursement 
from  the  Government.  (Comp.  Dec.,  Feb.  17;  1915,  Appeal  No.  24365,  file  26254-1709.) 
In  a  reconsideration  in  this  case  May  22, 1915,  it  was  held  that,  owing  to  exceptional  cir- 
cumstances, reimbursement  should  be  allowed,  applying  18 Comp.  Dec.  299.  Seealso 
4  Comp.  Dec.  409;  6  Comp.  Dec.  594;  8  Comp.  Dec.  584;  11  Comp.  Dec.  486;  12  Comp. 
Dec.  48. 

CLASSIFICATION  TABLES.     See  REDUCTION  IN  RATING,  42. 
CLEARED  COURT.    See  COURT,  16,  20-26,  126-128. 

CLEMENCY. 

1.  Accused — Copy  of  record  given  to  accused  should  not  contain  the  recommendation  to 

clemency.  Accused  may  obtain  such  from  the  department  after  final  action.  File 
26504-%.  See  also  CLEMENCY,  47. 

2.  Additional  evidence— Warranting  exercise  of.    File  26251-7219;  G.  C.  M.  Rec.  26427. 

3.  Affidavits — The   admission  of  an  ex  -parte  affidavit  favorable  to  the  accused  does  not 

invalidate  the  proceedings,  and  is  no  ground  for  clemency  by  the  department;  but 
otherwise  if  the  affidavit  is  against  the  accused.  File  1009-94.  SeeaUo  AFFIDAVITS,  1. 

4.  Aptitude  for  the  service.    C.  M.  O.  58, 1892. 

5.  American  Indian— Clemency  extended  because  the  accused  was  a  full-blooded  Amer- 

ican Indian.    C.  M.  O.  114,  1903,  4.    See  also  INDHNS,  2. 

6.  Assault,  Jocular — An  assault  in  "jest "  by  the  person  committing  the  assault  does  not 

relieve  that  person  from  guilt  of  the  offense  of  "assault"  but  may  be  considered  as 
ground  for  recommendation  to  clemency.  C.  M.  O.  8, 1911,  7.  See  also  ASSAULT,  9. 

7.  Business    procedure — Clemency  granted  because  of  lack  of  knowledge  of  business 

procedure.    C.  M.  O.  23, 1909. 

8.  Character,  good  or  excellent — Clemency  recommended  because  of  excellent  character. 

C.  M.  O.  96, 1895,  2;  104, 1895;  44,  1915. 

9.  Circumstances  of  the  case.    C.  M.  O.  61, 1893;  80, 1894,  2;  59, 1904,  2;  12, 1911,  5. 

10.  Civil  life — In  view  of  certain  circumstances  developed  by  the  testimony  adduced; 
and  in  consideration  particularly  of  the  fact  that  the  accused  was  appointed  as  an 


CLEMENCY.  81 

officer  from  civil  life,  having  been  in  the  service,  at  the  time  of  the  occurrence,  only 
about  two  weeks,  favorable  action  was  taken  upon  the  recommendation  to  clemency, 
and  the  sentence  was  mitigated.  This  lenient  action  was  taken  by  the  department 
hi  the  belief  that  at  a  time  when  the  accused  had  enjoyed  but  little  opportunity  to 
become  acquainted  with  the  obligations,  customs,  and  traditions  of  the  service,  he 
was  betrayed,  in  a  moment  of  heedlessness,  into  conduct  which  his  sober  judgment 
would  unqualifiedly  condemn.  C.  M.  O.  59, 1904,  2.  Seealso  C.  M.  O.  31, 1887,  2. 

11.  Commendatory  letters.    C.  M.  O.  54,  1892;  69,  1903,  2;  118,  1905.    See  also  COM- 

MEND ATOKY  LETTERS,  1;  EVIDENCE,  19. 

12.  Copy  of  record— Given  accused  should  not  contain  recommendation  to  clemency. 

See  CLEMENCY,  1,  47. 

13.  Courts-martial — The  law  imposes  on  courts-martial  duty  to  adjudge  adequate  sen- 

tences in  cases  of  convictions,  and  where  a  court-martial  adjudges  a  lenient  sentence 
it  encroaches  upon  the  prerogatives  of  the  reviewing  authority  by  exercising  clem- 
ency, as  this  power  is  vested  by  law,  not  in  courts-martial,  out  in  the  reviewing 
authority.  If  the  members  of  a  court-martial  consider  that  the  circumstances  in  the 
case  justify  the  exercise  of  clemency,  their  duty  in  the  matter  is  limited  by  law  to 
signing  an  appropriate  recommendation  to  the  revising  power,  stating  on  the  record 
their  reasons  for  so  doing  (A.  G.  N.  51).  See  ADEQUATE  SENTENCES,  4-19;  COURT,  17. 

14.  Same — A  recommendation  to  clemency  is  not  an  action  by  the  court  as  a  body,  but 

by  the  individual  members  thereof.    See  CLEMENCY,  35. 

15.  Denied — Despite  unanimous  recommendation  of  members.    C.  M.  O.  37, 1915,  1,  8-9; 

10. 1916;  20. 1916:  1,  1917. 

"While  it  is  customary  to  observe  a  recommendation  of  this  character,  such  course 
is  not  invariably  pursued."  File  6465-03,  J.  A.  G.,  1903,  pp.  11-12. 

16.  Department — Exercised  clemency  in  accordance  with  recommendation  of  members 

of  court.  C.  M.  O.  2,  1887;  36,  1888;  38,  1888;  50,  1889;  60,  1889;  66,  1889;  4,  1890;  38, 
1890;  52,  1890;  56,  1890;  65,  1890;  25,  1909;  42,  1909;  12,  1911,  5;  19,  1912,  5;  21,  1912,  4; 
17, 1915;  23,  1915, 1,  3;  25, 1915,  3;  26, 1915. 

In  view  of  the  recommendation  to  clemency  signed  by  one  member  the  dishonorable 
discharge  was  held  in  abeyance.  C.  M.  Q.  1,  1906,  2. 

"In  accordance  with  the  recommendation  of  the  Bureau  of  Navigation,  the  recom- 
mendation to  clemency  is  disapproved."  C.  M.  O.  19,  1916,  3. 

17.  Dictate  or  suggest— A  recommendation  to  clemency  should  not  assume  to  dictate. 

or  to  suggest,  to  the  reviewing  authority  what  mode  or  measure  of  clemency  will 
properly  be  resorted  to  in  the  case,  such  as  recommending  that  the  sentence  of  the 
accused  "be  suspended  during  good  behavior  until  the  expiration  of  said  sentence, 
and  that  in  the  meantime  the  accused  be  restored  to  duty."  C.  M.  O.  19, 1912,  5. 

18.  Drunkenness,  voluntary— "Voluntary  drunkenness  does  not  afford  any  reasonable 

or  good  ground  for  the  exercise  of  clemency."    C.  M.  O.  8, 1911,  6. 

19.  Same — Incapacity  of  accused  due  in  part  to  physical  incapacity— Not  sufficient  basis 

for  exercise  of  clemency.    See  DRUNKENNESS.  84. 

20.  Evidence  In  extenuation — The  department  disapproved  the  case  where  the  evidence 

in  extenuation  was  inconsistent  with  the  plea  of  "guilty"  and  a  recommendation 
to  clemency  "in  consideration  of  the  evidence  adduced  in  extenuation"  was  made 
by  the  members.  C.  M.  0. 10, 1912,  4-5.  See  also  EVIDENCE,  51. 

21.  Filipino — Clemency  recommended  because  accused  was  a  Filipino.    See  CODE  OF 

ETHICS. 

22.  Finding — Recommendations  to  clemency  should  not  be  inconsistent  with  the  find- 

ings of  the  court.  C.  M.  O.  49,  1910, 17;  21,  1910,  4-6;  30, 1910,  5;  5,  1911,  4.  See  also 
FINDINGS,  53. 

23.  Form— The  proper  form  for  a  recommendation  to  clemency  is:  "In  consideration  of 

we  recommend    *    *    *." 

In  one  case  the  members  of  a  general  court-martial  signed  a  recommendation  to 
"mercy."  G.  O.  52,  Apr.  15,  1865. 

24.  Gravity  of  offense— Accused  not  understanding.    C.  M.  O.  23,  1894,  2;  78,  1894,  2. 

25.  Inconsistent— Recommendation  should  not  be  inconsistent  with  findings  or  plea  of 

"guilty"  of  accused.    See  CLEMENCY,  20,  22;  FINDINGS,  53;  INSANITY,  38. 

26.  Indian,  American— Clemency  extended  because  accused  was  a  full-blooded  American 

Indian.    C.  M.  0. 114, 1903,  4.    See  also  INDIANS,  2. 

27.  Inexperience— As  a  grounds  for  clemency.    C.  M.  O.  67,  1892,  2;  41,  1893;  87,  1893; 

94, 1893;  26,  1894;  63,  1894;  28,  1895,  2;  92,  1895;  93,  1895;  102,  1896;  112,  1899;  59, 1904, 
2;  23, 1909;  25, 1909;  7, 1911, 13;  33, 1913;  37, 1915, 1,  8-9. 


82  CLEMENCY. 

28.  Insanity.    See  FINDINGS,  56;  INSANITY,  3-6. 

29.  Limited  service— Since  graduation  from  Naval  Academy.   C.  M.  O.  41, 1891, 3. 

30.  Long  service— As  grounds  for  clemency.    C.  M.  0. 1, 1893, 3;  60, 1893;  32, 1894,  3;  122, 

1897,  2.    See  also  C.  M.  O.  20, 1916. 

31.  Long  time  in  con nnement— Awaiting   trial.    C.  M.  O.  52,  1889;  30,  1892;  85,  1893. 

See  also  C.  M.  O.  28,  1916. 

32.  Low  order  of  intelligence—  Displayed  by  accused  on  witness  stand.    C.  M.  O.  224, 

1902. 

33.  Marital  difficulties.    C.  M.  0. 1, 1916, 1. 

34.  Medal  of  honor — Grounds  for  clemency.    C.  M.  O.  2, 1902;  118, 1905.    See  also  C.  M. 

O.  34, 1916;  File  26251-12117,  Sec.  Navy,  Sept.,  1916.    See  also  EVIDENCE.  19. 

35.  Members — A  recommendation  to  clemency  is  not  an  action  by  the  court  as  a  body, 

but  by  the  individual  members  thereof,  and  it  should  not  be  stated  in  the  record  that, 
"the  court  recommends,"  but  that  "We  recommend."    C.  M.  0.21,1910,5;  28,1910, 
4;  21, 1912,  4;  21,  1917.    See  also  C.  M.  0. 4, 1913,  53.     But  see  C.  M.  0.50,1901;  3, 1908, 
2;  23, 1909;  49, 1910, 13;  10, 1916,  2;  11, 1916,  2,  which  are  in  error. 
Members  should  not  dictate  or  suggest.    See  CLEMENCY,  17. 

36.  Mentally  Incapacitated— A  finding  of  "guilty"  to  fraudulent   enlistment,  but  a 

light  sentence  imposed  because  the  accused  was  "mentally  incapacitated''  when 
fraudulently  enlisting,  was  held  by  the  department  to  be  utterly  inconsistent,  and 
therefore  disapproved  the  case.  C.  M.  O.  49, 1910, 12-13.  Seealso  FINDINGS,  52.55. 

With  reference  to  clemency  granted  because  of  "doubt  as  to  the  sound  mental  con- 
dition of  accused,"  "mental  disturbance,"  "feeble,  untrained  mind,"  and  "deficient 
in  will  power,"  see  INSANITY,  3-6. 

37.  Ordered  to  attend  a  smoker— In  view  of  the  fact  "that  the  accused  [officer]  was  or- 

dered to  attend  a  smoker  on  shore,  a  social  function,  the  nature  of  such  functions 
being  recognized  as  more  or  less  convivial  occasions,"  and  for  other  reasons,  the  sen- 
tence of  the  accused  (officer)  was  mitigated.  C.  M.  0. 7, 1008, 2.  See  also  DRUNKEN- 
NESS, 41. 

38.  Same— But  in  a  case  where  accused  (officer)  had  been  convicted  of  a  similar  offense 

previously,  and  "he  made  efforts  not  to  go  to  the  function  that  he  had  been  ordered  to 
go  to  ashore,  feeling  that  it  was  to  be  a  convivial  occasion,  and  he  was  afraid  of  the 
result,"  the  sentence  of  dismissal  was  carried  into  effect.  C.  M.  O.  9, 1908. 

39.  Pay — Forfeiture  of  pay  should,  in  general,  be  remitted  only  as  an  act  of  clemency  to 

accused.    See  ALLOTMENTS,  6-7;  CLEMENCY,  53;  PAY.  23. 

40.  Personal  relations — Existing  between  accused  and  shipmates.    C.  M.  O.  5, 1903. 

41.  Physical  condition  of  accused — Itisnotwithintheprovinceofgeneralcourts-martial 

to  determine  the  physical  condition  of  an  accused  and  his  ability  to  serve  sentence. 
These  are  not  matters  for  it  to  consider.  The  law  makes  it  the  duty  of  courts-martial 
in  all  cases  of  conviction  to  adjudge  punishment  adequate  to  the  nature  of  the  offense. 
(Art.  51.  A.  G.  N.)  This  permits  of  no  allowances  being  made  because  of  a  man's 
physical  disability.  C.  M.  O.  49, 1910, 12.  Seealso  C.  M.  O.  3, 1911;  COURT.  133. 

42.  Same — Department  granted  clemency  because  health  of  accused  was  impaired  from 

causes  incident  to  the  service.  C.  M.  O.  1,  1893,  3.  See  also  C.  M.  O.  127,  18%;  58, 
1898;  97, 1899. 

43.  Prior  punishment — Members  of  a  court-martial  should  not  recommend  clemency 

because  the  accused  was  punished  by  his  commanding  officer  for  "this  offense"  for 
which  he  is  undergoing  trial  by  general  court-martial,  when  he  was  charged  with 
several  offenses.  C.  M.  O.  7, 1914,  4. 

44.  Probation— In  certain  cases  the  department  in  consideration  of  the  recommendation 

to  clemency  of  the  members  of  courts-martial  has  placed  the  accused  on  probation. 
C.M.  0.42,1909,9;  12,1911,5;  19,1912,5. 

45.  Provocation.    C.  M.  0. 126, 1897,  2;  54, 1898. 

46.  Reasons  for — After  the  sentence  of  a  court  has  been  decided  on,  it  is  competent  1  or  any 

of  its  members  to  move  that  the  accused  be  recommended  to  the  clemency  of  the 
revising  power.  This  recommendation  is  not  to  be  inserted  in  the  body  of  the  sen- 
tence, but  recorded,  with  the  reason  therefor,  immediately  after  the  signatures  of  the 
court  and  judge  advocate  to  the  sentence,  and  must  be  signed  by  the  members  con- 
curring in  it.  See  C.  M.  O.  36, 1905,  3. 

"  The  reviewing  and  revising  authorities,  in  order  to  properly  weigh  and  determine 
a  recommendation  for  clemency,  should  have  as  a  matter  of  record  the  information 
on  which  the  members  based  this  recommendation;  and  courts  should,  therefore,  see 
that  evidence  of  previous  good  character,  by  oral  testimony  or  by  introduction  of  cur- 
rent enlistment  record,  is  made  a  matter  of  record  before  a  recommendation  for  clem- 
ency is  made."  Let.  C.  in  C.  At.  Fleet,  636-14  (41),  FO-C,  May  20, 1914. 


CLEMENCY.  83 

47.  Record — A  recommendation  to  clemency  should  follow  immediately  after  the  signatures 

of  court  and  judge  advocate  to  the  sentence.  C.  M.  O.  21, 1910,  9;  23, 1910,  7.  See 
also  CLEMENCY.  46. 

The  copy  of  the  record  of  proceedings  furnished  the  accused  should  not  contain  the 
recommendation  to  clemency,  if  there  be  one.  The  same  may  be  obtained  from  the 
department  after  final  action  is  taken.  File  26504-96,  J.  A.  G.,  Nov.  19,  1910. 

48.  Record  of  accused — The  previous  good  character  and  reputation  of  the   accused 

(officer)  can  not  for  a  moment  be  regarded  as  a  justification  of  his  misconduct.  It  may 
be  and  is  considered  by  the  department  in  judging  of  his  motive,  but  not  in  its  con- 
demnation of  his  offense.  C.  M.  0. 107, 1901,  2. 

49.  Same — "  Long  and  particularly  excellent  record  "  of  accused  as  a  grounds  for  clemency — 

"  It  thus  appears  from  the  court's  own  statement  that  in  arriving  at  its  sentence  in 
thiscase  it  was  influenced  by  the  'long  and  particularly  excellent  record' "  of  the  accused . 
"While  the  previous  record  of  an  accused  may  properly  be  regarded  as  a  good 
reason  for  a  recommendation  to  clemency ;  it  can  not  be  made  the  basis  for  an  exercise 
of  clemency  by  the  court.  This  distinction  does  not  always  seem  to  be  understood 
by  officers  serving  as  members  of  general  courts-martial.  The  law  requiring  courts- 
martial  to  adjudge  an  adequate  punishment  hi  all  cases  of  conviction  and  empowering 
members  of  the  court  to  recommend  the  accused  as  deserving  of  clemency  would  be 
nullified  if  courts-martial  were  allowed  to  exercise  clemency  because  of  the  previous 
good  record  of  the  accused  when  it  is  obvious  that  this  is  peculiarly  a  matter  for  the 
consideration  of  the  convening  authority  hi  acting  upon  the  sentence."  C.  M.  O.  28, 
1913,  6-7.  See  also  C.  M.  O.  58, 1892. 

50.  Same— Clemency  is  recommended   because  of  the  excellent  record  of  the  accused. 

C.  M.  O.  23, 1915,  3;  43, 1915;  44, 1915.    See  also  EVIDENCE,  19. 

51.  Same — "Long  and  honorable  service,  both  during  the  Spanish  War  and  since  that 

time,"  as  a  ground  for  clemency.    C.  M.  0. 15, 1910,  6.    Seealso  C.  M.  O.  77, 1906. 

52.  Same^— "  In  view  of  the  limited  conversation  which  sustains  the  gravamen  of  the  first 

specification  of  the  first  charge,  and  of  the  trying  circumstances  under  which  this 
conversation  occurred,  and  hi  view  of  the  long  service  and  excellent  character  of  the 
accused,"  as  a  ground  for  clemency.  C.  M.  O.  20, 1912,  4. 

53.  Remission  of  loss  of  pay — Imposed  by  a  summary  court-martial  should  be  done 

"only  as  an  act  of  clemency  toward  the  accused."  File  26287-560.  See  also  File 
26251-7004:2. 

The  department  has  held,  in  considering  a  question  of  remitting  the  loss  of  pay 
imposed  by  a  court-martial,  that  in  general  it  should  be  done  only  as  an  act  of  clem- 
ency toward  the  accused.  (File  26287-560,  Sec.  Navy,  Aug.  3,  1910.)  File  26251- 
7004:2,  Sec.  Navy,  March  31,  1913;  C.  M.  O.  22,  1915,  9.  See  also  ALLOTMENTS,  6,  7; 
CLEMENCY,  39. 

54.  Revising  authority — Will  not  exercise  clemency  when  court  adjudges  inadequate 

sentence.  C.  M.  O.  96,  1896,  2;  131, 1901;  67,  1902,  2;  69,  1903,  3;  43, 1906,  3;  101, 1906; 
42, 1909,  8;  15, 1910,  6. 

55.  Revoking   recommendation  to  clemency — A  court  in   proceedings  hi  revision 

revoked  its  recommendation  to  clemency.    C.  M.  O.  37, 1909,  7. 

56.  Second  enlistment— The  court  should  not  be  influenced  hi  its  findings  by  the  fact 

that  the  accused  was  completing  his  second  enlistment  in  the  naval  service  with  a 
good  record  for  his  current  enlistment.  Such  fact  should  not  be  considered  by  the 
court  in  its  findings  unless  properly  introduced  in  evidence,  but  would  be  good  ground 
upon  which  to  base  a  recommendation  to  clemency.  C.  M.  0. 30, 1910, 10. 

57.  Sentence — Court  by  adjudging  inadequate  sentence  assumes  prerogatives  of  con- 

vening authority  by  thus  exercising  clemency.  C.  M.  O.  67,  1902,  2;  69,  1903,  3;  43, 
1906,  3;  101,  1906;  42,  1909,  8;  15,  1910,  6;  7,  1912,  3;  8,  1912,  3;  16,  1912,  3;  1,  1913,  7; 
9, 1913,  3;  16, 1913,  3;  28,  1913,  6;  43, 1915,  2;  44, 1915,  2. 

58.  Same — A  recommendation  was  based  on  the  grounds,  that  the  accused  "  is  now  serving 

a  sentence  of  two  and  one-half  years  on  a  similar  charge."    C.  M.  0. 19, 1912,  4. 

59.  Short  time  in  service— C.  M.  O.  59, 1904,  2.   See  also  C.  M.  0. 31, 1887,  2. 

60.  Suspension  from  duty — By  commanding  officer  not  a  basis  for  clemency.    C.  M.  O. 

7,  1914,  13. 

61.  Trial,  awaiting— For  45  days.    C.  M.  O.  224, 1902. 

62.  U.  S.  S.  "Merrimac"— Member  of  crew.    C.  M.  O.  69, 1904, 2;  32, 1905;  20  J.  A.  G.  289, 

June  5. 1902.    Seealso  MERRIMAC,  U.  S.  S. 

63.  U.  S.  S.  "Yosemite"  at  Guam— Member  of  crew.    C.  M.  O.  73, 1905, 1. 

64.  Unanimous  recommendation  to  clemency—Made  by  the  full  council  of  Aids  to 

the  Secretary  of  the  Navy     C.  M.  O.  17, 1913,  2. 


84  CLEMENCY. 

65.  Same— Clemency  granted  in  view  of  the  unanimous  recommendation.    C.  M.  O.  23, 

1915;  25. 1915. 

66.  Same— Clemency  denied,  despite  unanimous  recommendation  of  members.    C.  M.  O. 

37, 1915, 1. 8-9;  1»,  1916;  20,  1916. 

67.  War  record— In  view  of  excellent  war  record  of  accused,  as  a  volunteer  officer,  that 

brought  him  into  the  regular  service  and  the  excellent  manner  in  which  he  had  com- 
manded his  ship,  the  convening  authority  exercised  clemency.  C.  M.  O.  41, 1892. 

68.  Youth — Clemency  recommended  Ixscause  of  the  youth  of  accused.    C.  M.  O.  59, 1904,  2; 

23,  1909;  21,  1910,  12;  38,  1890;  41,  1891,  3;  58,  1892;  07,  1892,  2;  41,  1893;  61,  1893;  87, 
1893;  89, 1893;  94,  1893;  23,  1894,  2;  20,  1894;  80, 1894,  2;  12, 1895,  2;  92,  1895;  93,  1895; 
104,  1895;  102, 1896,  2;  58, 1898;  34,  1899;  112,  1899;  25,  1909;  21,  1910,  12;  7, 1911, 14;  12, 
1911,8. 

69.  Same — In  consideration  of  the  almost  unanimous  recommendation  to  clemency  of  the 

court  and  the  youth  and  inexperience  of  the  accused  the  department  remitted  the  loss 
of  10  numbers.  C.  M.  O.  25, 1909. 

70  Same — The  accused  was  over  20  years  of  age  when  he  killed  a  shipmate,  was  charged 
with  murder  and  found  guilty  of  manslaughter,  and  the  members  of  the  court  recom- 
mended him  to  the  clemency  of  the  revising  authority,  on  account  of  youth  and  other 
grounds.  C.  M.  0. 12, 1911,  8. 

71.  Same — The  accused  was  over  24  years  of  age  when  he  assaulted  and  wounded  another 

and  was  drunk  on  post,  yet  the  members  of  the  court  recommended  him  to  clemency 
because  of  his  youth.  C.  M.  O.  7, 1911, 14. 

72.  Same— The  members  of  the  court  recommended  the  accused  in  consideration  of  his 

youth,  to  the  clemency  of  the  revising  authority.    C.  M.  O.  21, 1910, 12. 

CLERICAL  ERRORS. 

1.  Charges  and  specifications — Correction  of.    See  CHARGES  AND  SPECIFICATIONS,  33-37. 

2.  Record— Correction  of  clerical  errors  on  revision.    See  RECORD  OF  PROCEEDINGS,  26,  27. 

3.  Sentence — Where  the  word  "to"  was  omitted  before  the  words  "be  paid,"  in  the  sen- 

tence of  a  naval  court-martial,  being  a  manifest  clerical  error,  under  ordinary  circum- 
stances the  record  would  not  oe  required  to  be  returned  to  the  court,  but  the  record 
being  returned  for  other  reasons,  attention  was  called  thereto.  File  288-97. 

CLERKS. 

1.  Leave  of  absence  without  pay — May  be  granted  in  some  cases.  See  LEAVE  OF 
ABSENCE,  13. 

CLERKS,  COMMANDANT'S.    See  DEATH  GRATUITY,  11. 

CLERKS  IN  OFFICE  OF  JUDGE  ADVOCATE  GENERAL. 

1.  Copies— Of  officers'  records.    C.  M.  O.  29, 1915,  8. 

CLERKS  OR  REPORTERS  OF  GENERAL  COURTS-MARTIAL. 

1.  Closed  court — Should  not  be  present  during  closed  court.    C.  M.  O.  19. 1915, 10. 

2.  Oath — Should  be  sworn  by  the  judge  advocate,  not  by  the  president  of  the  court.    C.  M. 

0. 135, 1897,  2. 

3.  Record  of  proceedings — Should  contain  a  notation  that  the  clerk  entered,  and  it  i.s  not 

sufficient  to  merely  note  that  the  clerk  was  sworn.    C.  M.  0. 10, 1912,  3. 

4.  Same — If  clerk  is  only  a  copyist  and  does  not  record  the  evidence  he  need  not  be  sworn. 

C.  M.  0. 135, 1897,  2.    Note:  Clerks  should  always  be  sworn. 

CLERKS,  PAY.    See  PAY  CLERKS  AND  CHIEF  PAY  CLERKS. 

CLERKS,  PAYMASTER'S.    See  PAYMASTER'S  CLERKS;  PAYMASTER'S  CLERKS,  MARINE 
CORPS. 

CLERKS,  TO  ASSISTANT  PAYMASTERS,  UNITED  STATES  MARINE  CORPS. 

See  PAYMASTER'S  CLERKS,  MARINE  CORPS. 

"  CLIPS." 

1.  Records — Use  of  "clips"  prohibited,  in  binding  naval  court-martial  records  of  proceed' 
ings.  See  BINDING  OF  COURT  MARTIAL  RECORDS,  1. 

CLIPPING  HAIR  OF  PRISONERS. 

1.  Awaiting  trial — Not  looked  on  with  favor  by  department.    See  PRISONERS,  4. 

"  CLOSED  COURT."    See  COURT.  16,  20-20,  120-128. 


COAST  GUARD.  85 

CLOTHING. 

1.  Prisoners*  useless   clothing— Disposition  of— Sold  at  auction.    File  27222-41,  Sec. 

Navy,  July  1, 1916. 

2.  Sale  of— Liability  of  civilians  for  purchase  of.    File  28516-49,  J.  A.  G.,  June  13, 1911. 

CLOTHING   AND   SMALL   STORES. 

1.  Detentioners,  issued  to — Chargeable  to  his  accounts.    See  DETENTIONEBS,  2. 

CLOTHING  OUTFITS. 

1.  Right  to — An  enlisted  man  of  the  Navy  who  enlisted  as  landsman  July  15,  1901.  was 

nonorably  discharged  on  account  of  expiration  of  enlistment  July  15. 1905,  reeiilisted 
as  bugler,  September  10, 1914,  claimed  that  he  was  not  furnished  an  outfit  of  clothing 
on  his  first  enlistment,  and  made  a  claim  for  same  under  the  provisions  of  the  Naval 
Appropriation  Act  of  June  30,  1914,  which  provides  that  the  Secretary  of  the  Navy 
is  authorized  to  issue  a  clothing  outfit  to  all  enlisted  men  serving  in  their  second  enlist- 
ment who  failed  to  receive  an  outfit  of  the  value  authorized  by  law  on  their  first  enlist- 
ment, etc. 

The  laws  in  effect  at  the  time  of  this  man's  first  enlistment  were  contained  in  the 
act  of  March  1, 1889  (25  Stat.  781),  and  the  Naval  Appropriation  Act  of  March  3, 1901. 
The  first  of  these  acts  provided  for  furnishing  a  clothing  outfit  to  "apprentices,"  and 
the  latter  act  contained  two  paragraphs  on  the  subject,  the  first  making  appropriation 
for  outfits  for  "naval  apprentices"  and  "hospital  apprentices"  and  the  second  making 
appropriations  for  "outfits  for  5,000  landsmen  under  training  for  seamen,  at  $45  each." 
As  this  man  did  not  enlist  originally  as  an  apprentice  he  is  not  entitled  to  the  outfit 
authorized  in  such  oases;  neither  was  he  a  landsman  under  training  for  seaman.  He 
could  not  be  held  entitled  to  an  outfit  under  the  act  of  July  1, 1902,  (32  Stat.  664), 
which  enlarged  the  terms  of  prior  laws  on  this  subject,  as  it  was  passed  approximately 
one  year  after  his  having  enlisted,  and  the  purpose  of  this  law  as  held  by  the  Attorney 
General  and  the  Comptroller  of  the  Treasury  was  to  give  a  bounty  "as  an  inducement 
for  the  services  to  be  rendered,  and  not  as  compensation  for  such  services."  (11  Comp. 
Dec.  193, 199.)  This  man  is  therefore  not  entitled  to  a  clothing  outfit  under  the  Act  of 
June  30, 1914  (38  Stat.  396).  File  26837-5,  J.  A.  G.,  Dec.  30,  1914;  C.  M.  O.  6, 1915,  8. 

2.  Same— Under  the  provisions  of  the  naval  appropriation  act  of  March  3,  1915  (38  Stat. 

940).    File  26837-7,  J.  A.  G.,  Jan.  15, 1916. 

COAL  BARGE. 

1.  Capsized.— And  cargo  lost.    C.  M.  O.  7, 1915. 

COAL  HEAVER. 

1.  General  court-martial— Tried  by.    C.  M.  O.  59, 1880;  36. 1886.    See  also  C.  M.  0. 28. 
1890,2. 

COALING  SHIP. 

1.  Enlisted  man  killed. — Struck  by  bag  while  coaling  ship  and  killed.    See  LINE  OF  DUTY 
AND  MISCONDUCT  CONSTRUED,  15. 

COAST  AND  GEODETIC  SURVEY.    See  also  CHARTS. 

1.  Chart— No.  243.    C.  M.  O.  31, 1916. 

2.  Service  to— As  naval  service.    File  26254-550. 

COAST  GUARD.   See  also  REVENUE-CUTTER  SERVICE. 

1.  Confinement  of  enlisted  men— There  is  no  legal  objection  to  granting  a  request  of 
the  Treasury  Department  that  enlisted  men  of  the  Coast  Guard  be  confined  on  the 
receiving  ship  "pending  disposition  of  charges  against  them."  As  stated  in  a  S9me- 
whatsimilar  connection  concerning  the  "safekeeping"  on  board  a  receiving  ship  of 
certain  civilian  witnesses  for  the  Department  of  Justice,  "the  attached  papers  do  not 
present  'questions  involving  points  of  law  concerning  the  personnel"  'proceedings  in 
the  civil  courts  in  *  *  *  cases  concerning  the  personnel  as  such,'  nor  any  other 
question  under  the  cognizance  of  the  Judge'  Advocate  General,  under  the  present 
regulations."  (File  26276-60;  Bu.  Nav.  File  2824-295.)  File  7018-487,  J.  A.  G.,  Oct. 
7,  1916.  See  also  File  1778,  May  25,  1905;  7018-487,  Sec.  Navy,  Nov.  13, 1916.  De- 
partment refused  above  request.  File  7018-487,  Sec.  Navy,  Nov.  13, 1916. 

2.  Medals  of  honor.    See  MEDALS  OF  HONOR,  1. 3. 

3.  Transfer  of  naval  vessel  to.    See  REVENUE  CUTTER  SERVICE,  2. 

4.  Witnesses.    See  COAST  GUARD,  1;  WITNESSES,  27. 


86  COLLISION. 

COCAINE. 

1.  Death  of  enlisted  man — An  enlisted  man  died  under  cocaine  administered  by  naval 

surgeon  as  a  local  anaesthetic.  C.  M.  0. 10, 1915, 8.  See  also  LINE  OF  DUTY  AND  MIS- 
CONDUCT CONSTRUED,  63. 

2.  General  court-martial— Enlisted  man  tried  by  general  court-martial  for  being  under 

the  influence  of  cocaine.    C.  M.  O.  42, 1915, 4. 

3.  Unfit  lor  service — In  a  case  where  an  enlisted  man  was  convicted  of  using  cocaine  and 

sentenced  to  confinement  and  loss  of  pay,  the  convening  authority  was  informed 
that  the  department  does  not  consider  the  retention  of  such  a  person  in  the  naval 
sendee  desirable  and  it  was  deemed  preferable  that  the  sentence  should  provide  for 
discharge  in  order  to  avoid  action  by  the  department.  File  26287-224. 

CODE.  See  ARMY,  1;  ARTICLES  OF  WAR;  CRIMINAL  CODE. 

CODE  OF  ETHICS. 

1.  Clemency— Among  other  reasons  for  recommending  clemency  it  was  stated  that  the 
accused  "is  of  an  alien  race  [Filipino]  and  lived  for  a  greater  portion  of  his  life  under 
a  code  of  ethics  differing  from  our  own."  In  considering  the  case  the  department 
remarked:  "That  in  order  that  such  a  code  of  ethics  may  not  be  introduced  into  the 
naval  service  of  the  United  States  it  would  appear  that  the  finding  should  have  been 
in  accordance  with  the  laws  of  this  country,  and  that  a  seiUence  in  some  measure 
commensurate  with  the  offense  should  have  been  adjudged.  C.  M.  O.  12, 1911,  5. 
See  also  CLEMENCY,  21. 

COLLATERAL  FACTS. 

1.  Enlistment  record — As  proof  of  desertion.    See  REPORTS  OF  DESERTERS  RECEIVED 

ON  BOARD,  4. 

2.  Evidence—  See  EVIDENCE,  25;  REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD,  4. 

3.  Log— Extract  from  log.    See  COLLISION,  8;  EVIDENCE,  25. 

COLLECTING  AGENCY. 

1.  Government  as.    See  DEBTS,  1, 16;  PAY,  71. 

COLLISION. 

1 .  "Alexander,"  U.  S.  N.  A.    See  COLLISION,  10. 

2.  Azov— For  papers  concerning  the  collision  between  the  Chicago  and  the  Azov  oft  Antwerp, 

see  File  4290-99;  206^99. 

3.  Board — The  board  to  inquire  into  circumstances  of  a  collision  should  give  the  captain 

and  crew  of  the  vessel  in  collision  with  a  United  States  ship,  a  hearing.  File  5376-93, 
J.  A.  G.,  Dec.  30, 1893. 

4.  Chicago— For  papers  concerning  the  collision  between  the  Chicago  and  the  Azov  off 

Antwerp,  see  File  4290-99;  2068-99. 

5.  Damages,  slight.    See  COLLISION.  7. 

6.  Danger  need  not  be  considered— "Nerve"  on  the  part  of  commanders  of  torpedo 

vessels  is  a  prime  requisite  and  there  are  times  in  the  handling  and  maneuvering  of 
these  vessels,  particularly  when  acting  together  and  demonstrating  the  capabilities 
of  their  vessels,  when  the  chances  of  collision  should  not  deter  an  officer  from  attempt- 
ing the  full  development  of  the  maneuver.  C.  M.  0. 5, 1906.  But  see  NAVIGATION, 
86, 88. 

7.  Department  of  Justice — Notwithstanding  the  fact  that  the  damages  suffered  by  naval 

vessel,  as  the  result  of  a  collision,  is  slight,  the  Department  of  Justice  will  take  cog- 
nizance of  the  matter,  and  instruct  the  United  States  attorney  to  bring  suit  against  a 
private  vessel  responsible  for  the  loss.  File  2337-97;  199-97. 

8.  Evidence  to  prove— In  court-martial  proceedings  against  the  commanding  officer  of  a 

naval  vessel  for  collision  with  a  merchant  schooner,  testimony  was  admitted  (extract 
from  log  of  naval  vessel)  that  on  the  trip  immediately  succeeding  the  collision  the 
naval  vessel  passed  in  one  watch  two  unknown  merchant  schooners  exhibiting  no 
lights  of  any  kind,  or  at  least  not  showing  the  lights  required  by  the  rules  of  the  road. 
Held:  That  this  testimony  was  inadmissible.  It  is  not  sufficient  to  prove  a  custom, 
and  it  does  not  show  anything  as  to  the  lights  actually  carried  by  the  merchant  schooner 
with  which  the  naval  vessel  collided.  C.  M.  0. 38, 1905.  See  also  EVIDENCE,  25. 

9.  Same — The  record  in  this  case  shows  that  testimony  was  admitted  to  the  effect  "that 

it  was  a  matter  of  common  report  on  the  Culgoa  subsequent  to  the  collision  with  the 
Wilson  &  Hunting,  that  the  latter  was  in  the  habit  of  having  her  lights  ready  but  not 
lit."  This  testimony  should  have  been  excluded  as  hearsay.  C.  M.  0. 38, 1905, 2. 


COLLISION.  87 

10.  Foreign  countries— In  the  case  of  theU.S.N.  A.  Alexander,  in  which  the  master  was 

sued  by  the  owners  of  a  Chinese  junk,  the  British  Supreme  Court  at  Hong  Kong  held 
that  the  Alexander  was  a  public  vessel,  and  forbade  the  owners  of  the  junk  to  secure  a 
trial  of  the  merits  in  the  British  courts  of  the  colony.  File  4729-14 ,  Sept. ,  1906. 

11.  Hearing— Board  investigating  collision  should  give  captain  and  crew  of  vessel  in  col- 

lision with  Government  vessel  a  hearing.    See  COLLISION,  3. 

12.  "  Inevitable  accident" — Defense  of  in  a  collision — "To  admit  of  that  defense  [inevi- 

table accident]  it  must  appear  that  the  danger  was  not  to  be  apprehended,  or,  if  it  was 
liable  to  aiise,  that  a  proper  watch  was  kept  beforehand,  and  seasonable  precaution 
taken  against  such  aliabifity,  and  that  reasonable  skill  was  used  when  danger  arose." 
(The  Columbia,  48  Fed.  Rep.,  325.)  C.  M.  O.  4,  1914,  9.  See  also  COLLISION,  17; 
OFFICER  OF  THE  DECK;  File  7893-03,  J.  A.  G.,  Sept.  22, 1903,  p.  6;  13  J.  A.  G.  101. 

13.  Merchant  ship — Enlisted  man,  while  on  leave  of  absence,  was  drowned  in  collision 

of  merchant  vessels.   See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  29. 

Commanding  officer  and  officer  of  the  deck  tried  in  joinder  for  collision  with  a  mer- 
chant ship.  See  JOINDER,  TRIAL  IN,  5. 

14.  Naval  Militia — Where  a  vessel  had  been  turned  over  to  the  Ohio  Naval  Militia  at  the 

navy  yard,  New  York,  and  while  en  route  to  Toledo,  Ohio,  in  charge  of  officers  and 
men  of  the  Naval  Militia,  damage  was  done  to  the  cables  of  the  Western  Union  Tele- 
graph Company,  it  was  held  that  no  liability  existed  on  the  part  of  the  Navy  Depart- 
ment. File  8100-04,  J.  A.  G. 

15.  "  Nerve"— On  part  of  torpedo-boat  commanders.    See  COLLISION,  6. 

16.  Ohio  Naval  Militia.   See  COLLISION,  14. 

17.  Precautions  to  avoid  collision — Required  to  be  "timely"  or  seasonable — "Precau- 

tions must  be  seasonable  in  order  to  be  effectual,  and  if  they  are  not  so  and  a  collision 
ensues  in  consequence  of  the  delay,  it  is  no  defense  to  allege  and  prove  that  nothing 
could  be  done  at  the  moment  to  prevent  the  disaster,  or  to  allege  and  prove  that  the 
necessity  for  precautionary  measures  was  not  perceived  until  it  was  too  late  to  render 
them  availing.  Inability  to  avoid  a  collision  usually  exists  at  the  moment  it  occurs, 
but  it  is  generally  an  easy  matter,  as  in  this  case,  to  trace  the  cause  to  some  antecedent 
omission  of  duty  on  the  part  of  one  or  both  of  the  colliding  vessels."  (The  Teutonia, 
23  Wall.,  77. )  (See  also  City  of  New  York,  147  U.  S.,  72;  Elizabeth  Jones,  112  U.  8.,  514, 
The  Sea  Gull,  23  Wall.,  165.) 

It  is  not  inevitable  accident,  as  was  well  remarked  by  the  learned  judge  in  the  case 
of  the  Juliet  ErsUne  (6  Notes  of  Cases,  634),  where  a  master  proceeds  carelessly  on  his 
voyage,  and  afterwards  circumstances  arise,  when  it  is  too  late  for  him  to  do  what  is 
fit  and  proper  to  be  done.  He  must  show  that  he  acted  seasonably,  and  that  he  did 
everything  which  an  experienced  mariner  could  do,  adapting  ordinary  caution,  and 
that  the  collision  ensued  in  spite  of  such  exertions.  Unjess  the  rule  were  so,  it  would 
follow  that  the  master  might  neglect  the  special  precautions  which  are  often  necessary 
in  a  dark  night,  and  when  a  collision  had  occurred  in  consequence  of  such  neglect  he 
might  successfully  defend  himself  upon  the  ground  that  the  disaster  had  happened 
from  the  character  of  the  night  and  not  from  any  want  of  exertion  on  his  part  to  prevent 
it.  (Union  Steamship  Co.  v.  N.  Y.  &  Va.  Steamship  Co.,  24  How.,  307.) 

"To  admit  of  that  defense  [inevitable  accident]  it  must  appear  that  the  danger  was 
not  to  be  apprehended,  or,  if  it  was  liable  to  arise,  that  a  proper  watch  was  kept  before- 
hand, and  seasonable  precaution  taken  against  such  a  liability,  and  that  reasonableskill 
was  used  when  danger  arose."  (The  Columbia,,  48  Fed.  Rep.,  325.) 

"  Precautions  must  be  seasonable  to  be  effectual;  and  if  not  seasonable,  it  is  no  defense 
that  nothing  could  be  done  at  the  moment  to  prevent  the  disaster."  (Southern  Ry. 
v.  U.  S.,  45  Ct.  Cls.,  322.)  C.  M.  O.  4, 1914,  8-9. 

18.  Same — From  the  evidence  adduced  before  the  court  of  inquiry  as  well  as  before  the 

court-martial,  the  department  is  satisfied  that  the  Wilson  and  Hunting,  the  schooner 
struck  by  the  Culgoa,  was  sailing  without  her  starboard  side  light  burning,  in  viola- 
tion of  the  rules  of  the  road;  that  if  that  light  had  been  burning  it  would  have  been 
seen  and  noted  on  the  Culgoa,  and  that  the  collision  would  not  have  occurred.  Con- 
curring to  that  extent  in  the  finding  of  the  court,  the  department  is  assured  that  the 
disaster  was  due  to  the  fault  of  the  schooner. 

Nevertheless,  it  appears  from  an  examination  of  the  testimony  given  before  the 
general  court-martial  by  the  accused  officer  himself,  that,  the  night  in  question 
being  dark  with  a  clear  atmosphere,  a  white  light  was  reported  at  sea  bearing  "  almost 
exactly  two  points  on  the  port  bow;"  that  the  commanding  officer,  who  was  on  the 
bridge  at  the  time,  was  in  doubt  as  to  the  distance  and  course  of  the  vessel  carrying 
this  light;  that  "It  was  absolutely  impossible  to  tell  whether  she  was  four  hundred 


88  COLLISION. 

yards  away  or  ten  miles,"  and  that  notwithstanding  this  uncertainty  the  speed  of  the 
Culgoa  was  not  slackened  or  arrested,  nor  was  her  course  changed  until  too  late  to 
avoid  collision.  C.  M.  O.  38, 1905. 

19.  Same — In  promulgating  the  proceedings  in  this  case  it  is  deemed  proper  to  emphasize 

the  rule  that  when  a  source  of  possible  danger  is  reported,  and  pending  the  determina- 
tion of  its  precise  character,  ttie  officer  in  command  of  a  naval  vessel  should,  unless 
precluded  from  so  doing  by  some  paramount  consideration,  immediately  give  precau- 
tionary orders.  In  cases  of  this  character  doubt  should  be  resolved  on  the  side  of 
safety.  C.  M.  O.  38, 1905,  2. 

20.  Same — The  evidence  showed  that  a  red  light  was  sighted  by  the  accused  about  one-half 

point  off  his  port  bow  at  about  eight  minutes  before  the  collision  occurred.  The 
department  stated  "  While  the  accused  was  vigilant  and  apparently  took  precautions 
which  he  considered  saf«  in  regard  to  passing  the  light,  it  is  evident  that  his  judgment 
was  at  fault  with  regard  to  the  distance  of  the  light  when  first  sigh  ted  and  that  he  failed 
to  take  proper  precautions  to  satisfy  himself  with  regard  to  the  light,  by  taking  a 
bearing  on  it,  or  by  maneuvering  his  ship  so  that  a  collision  would  have  been  impossi- 
ble. C.  M.  O.  27, 1908. 

21.  Public  vessel.    See  COLLISION,  10. 

22.  Rescue — If  a  United  States  ship  collides  with  a  merchant  vessel,  it  is  the  duty  of  the 

commanding  officer  to  ascertain  the  results  of  such  collision,  particularly  the  extent 
of  the  injury,  if  any,  sustained  by  such  merchant  vessel,  and  whether  she  is  so  injured 
as  to  need  assistance  for  her  further  navigation ,  or  to  ensure  her  safety  or  the  safety  of 
the  lives  of  her  officers,  crew,  and  passengers,  and  to  render  such  assistance,  if  needed, 
and  for  these  purposes  to  remain,  if  practicable,  in  the  vicinity  a  sufficient  length  of 
time  to  ascertain  the  results  of  such  collision  and  to  render  such  assistance  if  needed. 
C.  M.  O.  43, 1883. 

23.  Responsibility  of  commanding  officer.    See  COLLISION,  19;  COMMANDING  OFFICEES, 

38;  NAVIGATION,  14-19,  82. 

24.  Torpedo  boats.    See  COLLISION,  6. 

25.  U.  S.  N.  A. "  Alexander."    See  COLLISION  ,  10. 

COMITY.    See  CIVIL  AUTHORITIES,  8, 16;  WORDS  AND  PHRASES. 

COMMAND.    See  also  PRECEDENCE. 

1.  Boatswains  and  chief  boatswains.    See  COMMAND.  21. 

2.  Carpenters  and  chief  carpenters.    See  COMMAND,  21. 

3.  Engineer  officers — Not  restricted  by  law  to  engineering  duties.    See  COMMAND,  14. 

4.  Same— On  board  ship.    See  COMMAND.  19. 

5.  General  court-martial— Of  an  assistant   engineer  which    involved  a  controversy 

between  the  line  and  staff  officers  of  the  Navy  as  to  the  limitation  of  authority  in 
matters  of  command.  See  COMMAND,  19. 

6.  Gunners  and  chief  gunners.    See  COMMAND,  21. 

7.  Line  officers — Exercise  military  command.    See  COMMAND,  18, 19. 

8.  Machinists  and  chief  machinists.    See  COMMAND,  21. 

9.  Same-^Before  machinists  can  be  held  entitled  to  succession  to  command,  something 

positive  "to  that  effect  should  be  produced  from  the  personnel  act  or  from  the  general 
nature  of  their  duties  or  elsewhere."  File  17789-15,  J.  A.  G.,  Dec.  13, 1909,  p.  3. 

10.  Same — It  is  not  at  all  evident  that  because  chief  machinists  and  machinists  are 

assistants  to  line  officers,  such  fact  qualifies  them  to  exercise  or  succeed  to  command 
outside  of  the  engineer  department.  File  3980-629,  J.  A.  G.,  July  13. 1911,  p.  3. 

11.  Same — With  reference  to  the  exercise  of  military  command  by  chief  machinists  and 

machinists,  it  was  held  that  nothing  sufficiently  positive  has  been  produced  from  the 
personnel  act  or  from  the  gaperal  nature  of  their  duties  or  elsewhere,  to  warrant  the 
suggested  cancellation  of  the  recent  changes  made  in  Navy  Regulations,  1909,  R-28 
(3).  [See  Navy  Regulations.  1913,  R-1013  (3)]  by  "Changes  in  Navy  Regulations  No. 
15,"  and  that  the  presumption  against  the  exercise  of  the  right  to  command  has  not 
been  overcome,  and  that  the  above-mentioned  change  in  the  regulations  is  not  illegal. 
File  3980-629,  J.  A.  G.,  July  13, 1911.  See  also  COMMAND,  21. 

12.  Marines— When  afloat  in  battalion  or  separate  organization.    See  JURISDICTION.  75, 76. 

13.  Medical  officers — Over  pay  officer  on  a  hospital  ship.    See  HOSPITAL  SHIPS,  1,  3. 

14.  Navy  yards — Succession  to.  in  temporary  absence  of  commandant-^In  a  navy  yard, 

the  captain  of  the  yard  held  a  commission  as  captain  on  the  active  list  dated  March  3, 
1911;  the  engineer  officer  of  the  yard  was  a  retired  officer  holding  a  commission  ap- 
pointing him  a  captain  on  the  retired  list  to  date  from  June  30, 1910  (not  restricted  by 
law  to  engineering  duty).  Held,  That  during  the  temporary  absence  of  the  com- 
mandant of  said  navy  yard,  the  retired  officer  should  succeed  to  command,  rather  than 


COMMAND.  89 

the  captain  of  the  yard.  File  26806-73,  J.  A.  G.,  Sept.  20, 1911.  See  also  File  13559-17, 
J.  A.  G.,  Dec.  15, 1915;  C.  M.  O.  49, 1915,  22;  File  13559-17:1,  Sec.  Navy,  June  19, 
1916;  3809-6402,  J.  A.  G.,  June  12, 1916;  26253-4601:1.  J.  A.  G..  May  13,1916;  Navy 
Regulations,  1913,  R-3904. 

15.  Same— In  the  absence  of  the  commandant  the  line  officer  next  in  rank,  not  restricted 

by  law  to  the  performance  of  engineering  duties,  shall  become  the  acting  commandant 
and  shall  exercise,  for  the  time  being,  the  authority  of  the  commandant,  both  ashore 
and  in  respect  to  ships  in  commission  at  the  yard,  as  prescribed  in  article  R-3910. 
(R-3904.)  See  File  3311-04.  See  also  COMMANDANTS  OF  NAVY  YARDS  AND  NAVAL 
STATIONS,  2. 

16.  Pharmacists  and  chief  pharmacists.    See  COMMAND,  21. 

17.  Sailmakers  and  chief  sallmakers.    See  COMMAND,  21. 

18.  Staff— The  staff  is  subordinate  to  line  in  matters  of  command.    G.  O.  87,  Sept.  7, 1868. 

19.  Same — In  a  case  where  an  officer  was  tried  by  general  court-martial  for  offenses  which 

involved  a  controversy  between  the  line  and  the  staff,  the  department  stated  in  part: 
In  view  of  the  position  assumed  by  the  defense,  in  certain  interrogatories  proposed  to 
be  put  to  the  members  of  the  courtj  implying  a  controversy  between  the  line  and  staff 
officers  of  the  Navy  as  to  the  limitation  of  authority  in  matters  of  command,  it  is 
deemed  proper  to  state  that  the  evidence  adduced  upon  the  trial  shows  that  the  offense 
committed,  "disobedience  of  the  lawful  order  of  nis  superior  officer,"  was  clearly  a 
violation  of  the  express  regulation  requiring  engineers  on  duty  to  conform  to  the 
orders  of  the  officer  of  the  deck,  who,  as  the  representative  of  the  commanding  officer 
of  the  vessel,  is  entitled  to  obedience  from  all  officers  of  whatever  rank,  whether  of  line 
or  staff.  C.  M.  O.  67, 1892, 1-2. 

20.  Succession  to.    SeeCqMMAND,  9, 10, 11,14, 19, 21. 

21.  Warrant  officers — Chief  boatswains,  chief  gunners,  chief  machinists,  boatswains, 

gunners,  and  machinists  are  classed  as  line  officers  of  the  Navy;  chief  carpenters, 
chief  sailmakers,  chief  pharmacists  [chief  pay  clerks],  carpenters,  sailmakers  [pay 
clerks],  and  pharmacists,  as  staff  officers.  So  far  as  succession  to  command  or  suc- 
cession to  duties  aboard  ship  outside  the  engineer  department  are  concerned,  chief 
machinists  and  machinists  are  restricted  to  the  performance  of  engineering  duty  only. 
(R-1013  (3) ).  See  COMMAND,  11. 

COMMANDANTS  OF  NAVY  YARDS  AND  NAVAL  STATIONS. 

1.  Acting  commandant^— An  officer  duly  appointed  to  act  as  commandant  and  governor 

of  an  insular  possession  of  the  United  States  is,  and  while  so  serving,  entitled  to  all 
the  honors  due  to  that  position.  File  4451,  March  27, 1906. 

2.  Death  of  commandant — Where,  upon  the  death  of  the  commandant  of  a  naval  sta- 

tion, whe  was  also  governor,  a  naval  officer,  junior  to  a  marine  officer  present,  succeeds 
in  command  [Navy  Regulations,  1905,  R-1682  (Navy  Regulations,  1913,  R-3904)],  he 
should  also  succeed  as  acting  governor.  File  3311-04. 

3.  Law— Commandants  responsible  that  law  is  observed.    C.  M.  O.  31, 1915, 16. 

4.  Senior  officer  present— The  commandant  of  a  navy  yard  or  naval  station,  or  the 

officer  acting  in  his  absence,  is  the  senior  officer  present  for  all  purposes  within  the 
sphere  of  the  command,  with  full  authority  as  such,  including  review  of  summary 
courts-martial.  File  2969-04,  J.  A.  G.  But  see  Act  of  August  29,  1916,  (39  Stat.  586), 
which  modifies  this;  SUMMARY  COURTS-MARTIAL,  21,  22. 

5.  Succession  to  command— In  temporary  absence  of  commandant.    See  COMMAND,  14 

COMMANDANT,  NAVY  YARD,  PHILADELPHIA,  PA. 

1.  Responsible — That  persons  under  his  command  observe  law.     C.  M.  O.  31, 1915,  16. 
See  also  SUNDAY  LAWS,  1. 

COMMANDANT,  NAVY  YARD,  WASHINGTON,  D.  C. 

1.  Government  Hospital  for  the  Insane — Allowances  for  prisoners  and  patients  at. 
C.  M.  O.  22, 1915, 8.    See  also  GOVERNMENT  HOSPITAL  FOR  THE  INSANE,  2. 

COMMANDANT,  U.  S.  MARINE  CORPS.    See  MARINE  CORPS,  47-50. 

COMMANDANT'S  CLERKS. 

1.  Death  gratuity.    See  DEATH  GRATUITY,  11. 

COMMANDER  IN  CHIEF  OF  FLEET. 

1.  Court-martial  orders — Publishing  of.    See  COURT-MARTIAL  ORDERS,  12. 13. 

2.  Examining  boards— Power  to  change.    See  NAVAL  EXAMINING-  BOARDS,  4. 

3.  General  courts-martial— May  convene.    See  CONVENING  AUTHORITY,  27. 

4.  Summary  courts-martial — Power  to  direct  reconvening  of.    See  RECONVF.NING,  16. 


90  COMMANDING    OFFICERS. 

COMMANDER   OF   CRUISER   SQUADRON,  AND   COMMANDER  IN  CHIEF, 
DETACHED  SQUADRON,  UNITED  STATES  ATLANTIC  FLEET. 

1.  Courts  of  Inquiry — Convening  of.    C.  M.  O.  6,  1915,  9.    See  also  CONVENING    AU- 

THORITY, 28. 

2.  General  courts-martial— Convening  of.    C.  M.  O.  6,  1915,  9.    See  also  C.  M.  O.  14, 

1910, 17;  17, 1915;  40, 1915;  46, 1915;  48, 1915;  CONVENING  AUTHORITY,  28. 

COMMANDING  OFFICERS.    See  also  OFFICERS. 

1.  Absence  from  station  and  duty  without  leave — Commanding  officers  charged 

with.    C.  M.  O.  34, 1899;  19, 1915. 

2.  Arrested,  by  civil  authorities — Where  a  commanding  officer,  arrested  by  the  civil 

authorities,  fails  to  make  any  report  whatever  of  his  whereabouts,  either  to  his  imme- 
diate superior  or  to  the  Secretary  of  the  Navy,  he  must  be  held  responsible  for  his 
resulting  unauthorized  absence  and  neglect  of  duty,  notwithstanding  the  fact  that, 
as  in  the  present  case,  he  may  be  acquitted  by  the  civil  courts  when  tried.  C.  M.  O. 

19. 1915,  9. 

3.  Articles  for  the  Government  of  the  Navy— The  commanding  officer  shall  cause  the 

Articles  for  the  Government  of  the  Navy  to  be  hung  up  in  some  public  part  of  the 
ship  and  read  once  a  month.  A  commanding  officer  was  tried  by  general  court- 
martial  for  neglecting  to  observe  this  provision  of  the  law.  C.  M.  O.  29, 1890, 8. 

4.  Same— Commanding  officer  tried  by  general  court-martial  for  violating  various  pro- 

visions of.    C.  M.  O.  29, 1890. 

5.  Authority  and  precedence  of.    See  G.  0. 194,  Aug.  2, 1875. 

6.  Authority  of.    See  COMMANDING  OFFICERS,  31,  32,  33. 

7.  Battle — General  rule  to  observe.    See  BATTLE,  2. 

8.  Carrying  gold.    See  GOLD.  1. 

9.  Civil  authorities— Arrested  by.    See  COMMANDING  OFFICERS,  2. 

10.  Same — Delivery  of  enlisted  men  to.    See  CIVIL  AUTHORITIES;  GENERAL  ORDER  No. 

121,  September  17, 1914. 

11.  Collisions.    See  COLLISION. 

12.  Confessions  to.    See  CONFESSIONS,  9. 

13.  Consular  officers — Orders  to  commanding  officers  by  diplomatic  and  consular  offi- 

cers.   See  DIPLOMATIC  OFFICERS,  2. 

14.  Court-martial,  not  a— The  commanding  officer  of  a  naval  vessel,  in  imposing  pun- 

ishments, is  not  a  court-martial.  C.  M.  O.  7,  1914,  8;  6,  1915,  8-9.  See  also  COM- 
MANDING OFFICERS,  31;  JEOPARDY,  FORMER,  3;  G.  C.  M.  REC.  13370. 

15.  Crew — Cruel  and  unusual  treatment.    Commanding  officer  tried  by  general  court- 

martial  for.    C.  M.  O.  29, 1890,  2-3. 

16.  Criticism  of— A  commanding  officer  was  censured  by  the  department  for  failing  and 

neglecting  to  notify  the  pay  officer  that  an  enlisted  man  had  been  declared  a  deserter. 
File  26254-2038:1,  Sec.  Navy,  July  20,  1916.  See  also  COMMANDING  OFFICERS,  27,  39. 

17.  Cruelty  to  crew— Tried  by  general  court-martial.    C.  M.  O.  29, 1890. 

18.  Deck  courts— Commanding  officer  as  deck  court  officer.    See  DECK  COURTS,  7, 10, 14. 

Convening  of.    See  DECK  COURTS,  7, 10;  SUMMARY  COURTS- MARTIAL,  22. 

19.  Discipline— Commanding  officer  is  charged  with  the  discipline  of  his  command.    File 

25675-9-10-11,  Sec.  Navy,  Oct.  28,  1915.    See  also  CRITICISM  OF  COURTS-MAKTIAL,  36. 
Laxness  of  discipline.    C.  M.  O.  4, 1911,  2.  5. 

20.  Drunk— While  on  shore  in  a  foreign  port— Tried  by  general  court-martial.    C.  M.  O. 

18. 1916.  See  also  DRUNKENNESS,  14. 

21.  Drunk  on  duty.    C.  M.  0. 33, 1889, 3;  19, 1913.    See  also  DRUNKENNESS.  14. 

22.  General  courts-martial— The  commanding  officer  of  a  naval  vessel  is  not  empow- 

ered to  convene  a  court-martial  for  the  trial  of  an  officer  under  his  command.  C.  M 
O.  7, 1914, 10. 

23.  Gold— Transportation  of,  on  a  naval  vessel.    See  GOLD,  1. 

24.  Insubordinate.    C.  M.  O.  4, 1911,  2,  58. 

25.  Intoxicated.   C.  M.  O.  33, 1889,  3;  18, 1916.    See  also  DRUNKENNESS.  14. 

26.  "  Nerve"— On  part  of  commanding  officers  of  torpedo  vessels.    See  COLLISION,  6. 

27.  Offenses — Commanding  officer  criticised  for  not  punishing  accused  himself  instead  of 

recommending  trial  by  general  court-martial.  The  inadequate  sentence  was  caused 
by  the  negligence  of  the  commanding  officer  in  not  taking  proper  disciplinary  action 
at  time  olfense  was  committed.  C.  M.  O.  46, 1910, 1.  See  also  COMMANDING  OFFI- 
CERS, 39. 

28.  Power  of.    See  COMMANDING  OFFICERS,  33. 

39.  Precautionary  orders— When  possible  source  of  danger  is  reported.    C.  M.  O.  38, 
1905,  2.    See  also  COLLISION,  19. 


COMMANDING  OFFICERS.  91 

30.  Precedence — Over  all  under  their  command.    G.  0. 194,  August  2, 1875. 

Commanding  officers  of  vessels  of  war  and  of  naval  stations  shall  take  precedence 
over  all  officers  placed  under  their  command.  File  39S(M075,  J.  A.  G. ,  April  9, 1915. 

31.  Punishments  by — Status  of  commanding  officers  in  imposing  punishments — The 

department  has  fully  considered  the  status  of  a  commanding  officer  in  imposing 
punishments,  and  held  that  he  does  not  act  as  a  court-martial,  that  his  investigation 
of  an  offense  is  in  no  sense  a  trial,  that  his  finding  is  not  a  conviction  or  acquittal,  and 
that  the  punishment  which  he  imposes  is  not  a  sentence.  (C.  M.  0. 7, 1914;  31, 1914.) 
File  26251-6297:9,  Sec.  Navy,  Dec.  28, 1914;  C.  M.  O.  6, 1915, 8-9.  See  also  COMMAND- 
ING OFFICERS,  14;  JEOPARDY,  FORMER,  3. 

The  commanding  officer  of  a  naval  vessel  in  punishing  enlisted  men  occupies  a 
"quasi  judicial"  and  not  a  "purely  judicial"  position.  C.  M.  O.  7, 1914, 8. 

32.  Same — Too  many  punishments  by  commanding  officer — The  department  has  noticed 

with  regret,  the  frequency  of  punishments  inflicted  upon  the  enlisted  men  on  board 
some  of  the  ships  now  in  commission— no  one  punishment,  perhaps,  exceeding  the 
law,  but  some  commanding  officers,  taking  advantage  of  the  law,  inflict  punishment 
for  slight  offenses  so  frequently  as  to  harass  the  men  and  create  discontent,  without 
adding  to  the  efficiency  of  their  ships  or  to  the  maintenance  of  discipline. 

The  department,  without  taking  more  decided  action  at  present,  would  suggest  to 
commanding  officers  to  try  the  experiment  of  forbearance  and  consideration  for  the 
feelings  of  the  men ,  and  endeavor  to  induce  cheerful  obedience  by  granting  indulgences , 
instead  of  coercing  reluctant  obedience  through  fear  of  punishment. 

If  these  means  fail  then  they  can  resort  to  punishment,  for  the  department  does 
not  desire  nor  intend  that  the  efficiency  of  the  Navy  shall  be  impaired  by  any  undue 
leniency,  nor  will  it  sanction  any  willful  disregard  of  law  or  disrespect  to  authority. 
G.  O.  204,  Feb.  9, 1876. 

33.  Same — The  power  of  commanding  officers  of  naval  vessels  is  not  confirmed  by  statutes, 

but  on  the  contrary  is  an  inherent  power,  the  exercise  of  which  has  been  restricted 
by  statutes;  and  such  commanding  officer  possesses  no  greater  powers  in  this  respect 
than  those  possessed  and  exercised  by  the  commander  in  chief  of  a  fleet.  Thus  in  a 
decision  of  the  Secretary  of  the  Navy,  January  14. 1907  (file  6489),  it  was  said: 

"  Article  24  of  the  Articles  for  the  Government  01  the  Navy  is  not  a  statute  conferring 
powers  of  punishment  upon  officers  in  command  of  naval  vessels,  but  is;  on  the  con- 
trary, a  provision  of  law  restrictive  in  its  character,  prescribing  the  limits  within 
which  the  disciplinary  powers  inherent  in  such  command  may  be  exercised.  This 
statute  does  not,  under  any  possible  construction,  impose  greater  restrictions  upon  the 
powers  of  the  commanding  officer  of  a  division,  squadron,  fleet,  or  naval  station  than 
it  imposes  upon  the  commander  of  a  single  vessel." 

The  power  of  the  commanding  officer  of  a  naval  vessel  to  maintain  discipline  and 
punish  offenses  is  similar  to  that  possessed  by  commanding  officers  of  merchant  vessels 
under  general  principles  of  maritime  law,  which  power,  in  the  latter  case,  has  repeated- 
ly been  likened  by  the  United  States  courts  to  the  power  of  a  parent  over  his  child,  or 
of  a  master  over  his  apprentice,  or  of  a  school  teacher  over  his  scholar,  in  all  of  whic  h 
cases  the  power  is  inherent  and  not  expressly  conferred  by  statute.  (Opinion  of  Mr 
Justice  Story  in  U.  S.  v.  Hunt,  26  Fed.  Cas.  No.  15423.)  Similar  power  has  been- 
regarded  as  existing  and  in  practice  has  been  exercised  by  commanding  officers  in  the 
Army.  A  commanding  officer  of  a  naval  vessel  obviously  can  not  be  conceded  any 
larger  powers  because  of  a  statute  limiting  his  authority,  than  he  would  have  possessed 
in  the  absence  of  such  a  statute.  C.  M.  O.  7, 1914,  7. 

34.  Rescue— If  a  naval  vessel  collides  with  a  merchant  vessel  the  commanding  officer 

should  do  all  in  his  power  to  rescue  the  officers,  crew,  and  passengers  of  the  merchant 
vessel.  C.  M.  O.  43, 1883.  See  also  COLLISION,  22. 

35.  Responsibility  of— Collision.    See  COLLISION,  6, 17, 19,  22. 

36.  Same— Grounding  ship,  etc.    See  NAVIGATION,  17, 18,  31,  43,  57,  71,  82,  88. 

37.  Same— Handling  his  vessel.    See  COLLISION,  6. 

38.  Same — For  ship — "As  no  officer  would  be  justified  in  refusing  in  time  of  danger,  to 

execute  an  order  involving  unreserved  exposure  of  life,  so  none  are  authorized,  at  any 
time,  to  interpose  their  judgment  between  the  exigencies  of  the  service  and  the  respon- 
sibility of  the  commanding  officer.  He  is  intrusted  with  the  purposes  and  orders  of 
the  Government;  to  his  care  and  command  are  committed,  under  strict  accountability, 
the  ship  and  her  company,  and  he  is  responsible  for  the  accomplishment  of  the  pur- 
poses for  which  she  is  commissioned,  her  safety  in  danger,  and  efficiency  in  presence  of 
an  enemy."  G.  0. 140,  September  17, 1869. 


92  COMMANDING   OFFICERS. 

39.  Sentence— Inadequacy  of  an  officer's  sentence  by  general  court-martial  caused  by  the 

failure  of  justice  usually  incident  to  such  delays  of  the  law  as  was  caused  by  the  negli- 
gence of  the  commanding  officer  at  the  time  of  the  occurrence  of  the  offense  in  not 
taking  proper  disciplinary  action.  C.  M.  O.  46,  1910,  1.  See  also  COMMANDING 
OFFICERS.  27. 

40.  Status — Of  commanding  officers  in  imposing  punishments.    See  COMMANDING  OFFI- 

CERS. 14, 31;  JEOPARDY,  FORMER,  3. 

41.  Stranding  vessel— Tried  by  general  court-martial.    C.  M.  O.  2, 1915. 

42.  Summary  courts-martial— The  commanding  officer  of  a  naval  vessel  can  convene 

only  summary  courts-martial  and  deck  courts  for  trial  of  enlisted  men  under  his 
command.  C.  M.  O.  7, 1914, 10.  See  also  SUMMARY  COURTS-MARTIAL,  12. 

43.  Torpedo  vessels— "Nerve"  in  handling.    See  COLLISION;  6. 

44.  Uniform  disarranged  and  drunk — While  on  shore  in  a  foreign  port — Tried  by 

general  court-martial.    C.  M.  0. 18, 1916. 

COMMENDATORY  LETTERS. 

1.  Clemency— Commendatory  letters,  particularly  when  setting  forth  long  and  faithful 
service,  are  entitled  to  consideration  where  the  offense  is  what  may  be  termed  a 
military  one,  or  in  case  of  a  lapse  of  the  character  as  drunkenness,  for  example,  but 
such  letters  do  not  have  much  weight  in  a  case  where  the  evidence  established  beyond 
the  shadow  of  a  doubt  transactions  tainted  with  fraud  and  extending  over  the  full 
period  of  time  that  the  court's  inquiries  may  cover  without  going  beyond  the  bar  of 
the  statute  of  limitations.  C.  M.  O.  69,  a903,  2.  See  also  C.  M.  O.  54,  1892;  118, 
1905;  CLEMENCY.  11. 

2.  Secretary  of  the  Navy— It  is  within  the  province  of  the  Secretary  of  the  Navy  to 
express  his  approval  or  disapproval  of  the  acts  or  omissions  of  any  officer,  enlisted 
man,  or  civil  employee  under  the  department.  His  action  may  be  in  accordance 
with,  or  even  contrary  to,  the  findings  of  a  board  of  investigation  or  any  other  source 
of  information,  or  recommendation.  File  26283-522,  J.  A.  G.,  Feb.  12, 1913.  See  also 
PUBLIC  REPRIMAND,  18;  REPRIMAND,  10;  SECRETARY  OF  THE  NAVY,  63. 

COMMERCIAL  ATTACHE. 

1.  Eligibility— Of  a  retired  naval  officer.  File  27231-67,  J.  A.  G.,  Aug.  20, 1915,  Sec.  Navy, 
Aug.  23, 1915. 

COMMISSARY  STEWARD. 

1.  Charges  and  specifications— Important  allegations  to  be  specified  when  accused  is  to 

be  charged  with  irregularities  in  commissary  department.  File  26251-12309,  J.  A.  G., 
October,  1916. 

2.  Duty — Irregularities  in  commissary  departments,  U.  S.  Atlantic  Fleet.    File  14625-183: 

31,  Sec.  Navy,  May  9, 1913. 

COMMISSIONS.    See  also  APPOINTMENTS;  PROMOTION. 

1.  Ad  Interim.    See  File  22724-18,  p.  5.    See  also  COMMISSIONS,  23,  29. 

2.  Additional  numbers  In  grade— Date  of.    See  ADDITIONAL  NUMBERS. 

3.  Antedating — The  practice  of  antedating  the  commissions  for  purposes  of  rank  is  an 

old  one,  and  has  been  repeatedly  recognized  and  sustained  by  the  Attorney  General 
and  the  courts.  (See  U.  S.  v.  Vinton,  2  Sumn.  299,  28  Fed.  Cas.  382;  4  Op.  Atty.  Gen. 
123,  318,  603,  608;  5  Op.  Atty.  Gen.  132;  9  Op.  Atty.  Gen.  137;  17  Op.  Atty.  Gen.  97; 
14  Op.  Atty.  Gen.  191;  Collins  v.  U.  S.,  15  Ct.  Cls.  22;  Kilburn  v.  U.  S.,  15  Ct.  Cls.  41, 47; 
23  Op.  Atty.  Gen.  30, 40;  Burchard  v.  U.  S.,  19  Ct.  Cls.  137,  143;  Young  v.  U.  S.,  19  Ct. 
Cls.  145;  Bennett  ».  U.  S.,  19  Co.  Cls.  379,  386, 387;  Laws  v.  U.  S.,  27  Ct.  Cls.  59.)  File 
26280-68,  J.  A.  G..  Apr.  12, 1916. 

4.  Same — In  cases  where  appointing  power  did  not  fill  a  vacancy  at  the  time  it  was 

created,  or  the  person  at  the  time  was  ineligible  for  appointment  and  the  department 
acted  promptly,  it  is  not  deemed  advisable  to  antedate  the  commission.  File  9466-03. 
See  also  File  22724-18,  J.  A.  G.,  Dec.  4, 1911,  p.  3;  5460-72:1,  J.  A.  G.,  June  8,  1915. 

5.  Bond— Failing  to  execute  and  file   bond  when  ordered— Tried   by  general   court- 

martial.    C.  M.  O.  29,  1881. 

6.  Canceling.    See  File  26260-132:  f,  J.  A.  G.,  June  2, 1909. 

7.  Change  of  date.    See  COMMISSIONS,  14-17. 

8.  Chiefs  of  bureaus.    See  BUREAU  CHIEFS,  8, 13. 

9.  Date  of— Officer  advanced  in  rank  but  not  in  grade — An  assistant  paymaster  ad- 

vanced in  rank  from  ensign  to  lieutenant  (junior  grade),  without  receiving  an  advance- 
ment in  grade,  need  not  be  commissioned,  as  this  is  merely  an  advancement  in  rank, 


COMMISSIONS.  93 

without  change  in  office,  which  remains,  as  before,  that  of  assistant  paymaster.  File 
26254-542.  See  also  19  Op.  Atty.  Gen.  169,  173;  20  Op.  Atty.  Gen.  358.  But  see  File 
1282-01,  Mar.  19,  1901.  in  which  the  Secretary  of  the  Navy  decided  that  staff  officers 
advanced  in  rank  without  advancement  in  grade  or  change  of  office  should  be  nomi- 
nated and,  after  confirmation  by  the  Senate,  commissioned  with  the  higher  rank, 
thereby  expressly  changing  the  "long-established  custom  of  the  department  to  advise 
officers  of  the  staff  corps  of  the  Navy  of  the  attainment  of  a  higher  rank  in  their  grade 
by  a  letter  of  notification  only."  File  1282-01,  Sec.  Navy,  Mar.  19,  1901.  See  also 
PROMOTION,  73. 

10.  Same— Where  an  officer  is  transferred  from  the  retired  list  to  the  active  list  by  a  special 

act  of  Congress,  without  stating  the  position  he  is  to  take  on  the  active  list,  the  only 
appropriate  date  which  can  be  fixed  for  his  restoration  is  the  date  of  the  act  itself. 
File  2871-7,  Oct.  11, 1907. 

11.  Same— Commission  should  not  be  dated  prior  to  qualification  of  candidate— Where 

new  offices  are  created  by  law,  and  it  is  provided  therein  that  no  person  shall  be 
appointed  until  he  has  been  found  qualified  by  examination,  the  commission  issued 
should  not  bear  a  prior  date  to  that  when  the  candidate  qualified  by  examination. 
File  5460-72:1.  May  19, 1915. 

12.  Same — While  there  is  no  statute  prescribing  the  form  of  commission  to  be  issued  to 

officers  of  the  Navy,  the  established  custom  of  insertingftherein  the  date  from  which  it 
becomes  effective'has  repeatedly  been  recognized  both  by  law  and  authorative  legal 
opinions  and  may  therefore  now  be  regarded  as  having  the  force  and  effect  of  law.  To 
issue  commissions  without  a  date  stated  therein  would  result  in  much  confusion  and 
avoidable  correspondence,  as  each  officer  in  the  service  affected  would  request  a 
decision  of  the  department,  etc.  File  5460-76.  J.  A.  G.,  July  12, 1915. 
IX  Same— For  chief  pay  clerks,.  File  5460-76,  J.  A.  G.,  July  12, 1915. 

14.  Same — The  action  taken  at  the  time  an  officer's  commission  was  issued  should  be 

regarded  as  conclusive  upon  the  present  administration  and  his  case  should  not  be 
reopened  during  a  subsequent  administration.  If  any  wrong  has  been  done  the 
officer,  his  recourse  lies  in  an  appeal  to  Congress.  File  11130-6,  J.  A.  G.,  Dec.  28, 1909. 
See  also  2  Op.  Atty.  Gen.,  8;  13  Op.  Atty.  Gen.  33,  35;  16  Op.  Atty.  Gen.  583;  17  Op. 
Atty.  Gen.  611;  Day  v.  U.  S.,  21  Ct.  Cls.,  264;  File  14818-4,  J.  A.  G.,  Aug.  16, 1908. 

15.  Same — The  statutes  and  regulations  governing  precedence  hajving  once  been  deter- 

mined in  any  particular  case,  considerations  of  repose  intervene,  and  become  impor- 
tant. Disturbance  of  the  Navy  lists  is  prejudicial  to  the  service,  and  should  not  be 
sanctioned  where  doubt  exists  respecting  the  appropriate  action,  and  where  a  con- 
siderable  length  of  time  has  elapsed.  File  8171-03;  9019-04;  13  Op.  J.  A.  G.,  127.  See 
also  File  5460-72 : 1,  J.  A.  G.,  June  8, 1915;  11,130-22,  J.  A.  G.,  Nov.  17, 1913. 

The  statutes  themselves  are  by  no  means  simple  and  free  from  difficulty  in  their 
application  to  existing  conditions.  Having  been  once  interpreted  and  applied  by 
the  department,  considerations  of  repose  intervene  and  become  important.  If  the  lists 
are  t9  pe  disturbed  whenever  by  ingenious  analysis,  it  can  be  shown  that  some  minor 
provision  of  a  complicated  statute  has  perhaps  oeen  erroneously  dealt  with  a  condi- 
tion of  uncertainty  and  instability  would  ensue  more  prejudicial  to  the  service  than 
the  occasional  examples  of  questionable  individual  hardship  that  might  thereby  be 
corrected.  File  8171-03,  J.  A.  G.,  Oct.  30, 1903,  p.  4. 

16.  Same— The  action  taken  at  the  time  an  officer's  commission  was  issued  should  be 

regarded  as  conclusive  by  subsequent  administrations,  and  his  case  should  not  there- 
fore be  reopened.  Opinions  regarding  the  doctrine  or  res  judicata  in  administrative 
action  considered  and  applied.  File  11130-6,  Dec.  28,  1909.  See  also  File  2346-1, 
Aug.  23, 1905. 

17.  Same — An  officer  of  the  Marine  Corps  was  retired  with  the  rank  of  the  next  higher 

grade  when  it  was  the  practice  of  the  department  to  date  a  retired  officer's  commission 
of  the  actual  date  of  retirement  and  not  from  the  date  of  the  vacancy  to  which  he  would 
have  been  promoted  if  qualified.  Therefore  he  requested  that  a  new  commission  be 
issued  him  as  of  the  latter  date,  citing  Court-Martial  Order  No.  29, 1915,  page  9,  as  a 
reason  for  such,  request.  Held,  That  the  officer's  date  of  rank  on  retirement  was  • 
correctly  fixed  to  accordance  with  the  existing  and  long  continued  practice,  and  should 
not  be  disturbed  because  of  a  subsequent  decision  of  the  department  which  prescribed 
a  different  rule  to  be  applied  in  future  cases.  The  same  principle  is  observed  in  cases 
where  the  department  has  adopted  a  rule  less  liberal  in  its  operation  than  the  previous 
practice  without  disturbing  the  status  of  officers  who  had  theretofore  been  retired. 
File  26260-2076 : 5,  J.  A.  G.,  Oct.  21, 1915;  Nav.  File,  4489-51,  Sec.  Navy,  Oct.  25, 1915; 
C.  M.  O.  35, 1915, 11.  See  also  File  27231-70;  14818-4,  J.  A.  G.,  Aug.  16, 1909. 


94  COMMISSIONS. 

18.  Same;— While  an  officer  might  have  been  promoted  to  the  grade  of  captain  in  the 

Marine  Corps  when  a  vacancy  in  that  grade  occurred,  such  action  was  discretionary 
with  the  appointing  power;  and  since  such  action  was  not  taken,  but  the  officer  was 
promoted  and  commissioned  as  of  a  later  date,  there  is  no  law  or  regulation  entitling 
him  to  have  his  commission  date  from  the  occurrence  of  the  vacancy.  File  2518-04. 
See  also  File  5460-72 :  1,  J.  A.  G.,  June  8, 1915;  7151-03,  J.  A.  G.,  1903. 

19.  Same — Where  the  filling  of  vacancies  is  discretionary  with  the  President,  the  commis- 

sions need  not  be  made  to  date  from  the  occurrence  of  the  vacancy  unless  the  appoint- 
ing power  so  decides.  File  7151-03.  See  also  File  3089-04;  5460-72 : 1,  J.  A.  G.,  June 
8, 1915.  See  also  PROMOTION,  50. 

20.  Erroneously  Issued  Is  null  and  void — A  commission  issued  to  an  officer  who  had 

not  qualified  for  promotion,  but  was  nominated  and  confirmed  through  error,  is  null 
and  void.  File  26260-1193,  Jan.  11,  1912.  See  also  File  26260-110 : 1,  June  21.  1909; 
26260-132;  26254-«45;  26254-482;  26254-654;  26254-655;  5172-93,  Apr.  6, 1907;  26254-286X 
May  27, 1909. 

21.  General  court-martial— The  President  is  not  required  to  issue  a  commission  to  an 

officer  who  had  been  recommended  for  trial  by  general  court-martial  for  shortages  in 
his  accounts  and  indebtedness,  and  who  thereafter  presented  his  resignation,  which 
was  accepted  "for  the  good  of  the  service,"  in  the  meantime  having  been  nominated 
by  the  President  for  promotion,  which  nomination  was  confirmed  by  the  Senate,  but 
whose  commission  had  not  been  signed  by  the  President.  File  26251-2833,  J.  A.  G., 
Mar.  31, 1910.  See  also  12  Op.  Atty.  Gen.  304. 

22.  Same — But  if  the  commission  be  signed  and  sealed,  and  the  office  be  of  a  character  not 

removable  by  the  President,  in  that  case  the  President's  right  over  the  office  no  longer 
exists,  according  to  the  Supreme  Court  (Marbury  v.  Madison,  1  Cranch  50)  for  the 
right  is  vested  and  irrevocable.  File  26251-2833,  J.  A.  G.,  Mar.  31, 1910. 

23.  "  Gunboat "  commissions.    File  1282-01.    See  also  COMMISSIONS,  1,  29. 

24.  Marine  officers.    See  COMMISSIONS,  17, 18. 

25.  Naval  operations,  chief  of.    See  File  22724-33,  J.  A.  G. ,  Aug.  22, 1916.    See  also  NAVAL 

OPERATIONS,  CHIEF  OF,  1. 

26.  Numbering  of  commissions — When  commissions  bear  the  same  date  "the  number- 

ing of  the  commissions  is  not  an  act  of  the  President  and  Senate,  but  is  *  *  *  an 
act  of  the  Secretary  of  the  Navy  alone,  in  order  to  prevent  questions  of  rank  from 
arising  among  the  officers  from  the  circumstances  of  the  identity  of  date  in  the  com- 
missions. Hence,  the  question  *  *  *  is  obviously  not  one  of  law,  but  of  practice 
merely  in  the  Navy  Department."  (1  Op.  Atty.  Gen.,  325.)  File  28026-1209:4, 
J.  A.  G.,  Oct.  25,  1915;  C.  M.  O.  35, 1915,  9. 

27.  Paymaster  General— Issuance  of  a  commission  to  a  retired  Paymaster  General.    See 

PAYMASTER  GENERAL  OF  THE  NAVY,  4. 

28.  Precedence  where  commissions  bear  same  date^— Where  naval  officers  are  com- 

missioned on  same  date,  the  numbers  of  the  commissions,  to  determine  the  relative 
rank  of  the  officers,  is,  in  the  absence  of  statutes,  a  matter  of  practice  in  the  Navy 
Department,  and  not  governed  by  law.  (1  Op.  Atty.  Gen.,  325.)  See  File  28026- 
1209 : 4,  Oct.  25, 1915;  11130-27,  Aug.  26, 1915.  See  also  PRECEDENCE.  13-17. 

29.  Recess  appointments— The  President  shall  have  power  to  fill  up  all  vacancies  that 

may  happen  during  the  recess  of  the  Senate  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session.  (Con.  Art.  II,  sec.  2,  cl.  3).  File  22724-16:1, 
J.  A.  G.,  Apr.  24, 1911,  p.  9. 

A  temporary  appointment  during  a  recess  of  the  Senate  need  not  be  made  in  any 
prescribed  form.  It  has  even  been  held  that  a  communication  from  the  Secretary  of 
the  Army  informing  the  recipient  that  he  has  been  appointed  an  officer  of  the  Army 
by  the  President  is  sufficient  and  answers  the  purpose  of  a  commission.  (O'Shea  v. 
U.  S.,  28  Ct.  Cls.  392.)  File  26521-152,  J.  A.  G.,  Sept.  22, 1915. 

A  recess  appointment  which  was  not  accepted,  and  was  therefore  never  of  any  prac- 
tical effect,  should  not  be  accepted  after  the  appointment  has  been  confirmed  by  the 
Senate,  but  should  be  disregarded  and  a  permanent  commission  issued  in  the  usual 
manner.  File  8622-2,  Feb.  10,  1908.  See  also  2  Op.  Atty.  Gen.  336;  U.  S.  v.  Kirk- 
patrick,  9  Wheat  721;  File  6288-2,  J.  A.  G.,  Mar.  29, 1907;  1518-4;  4389,  Nov  18,  1907; 
COMMISSIONS,  1,  23. 

30.  Retired  officers— For  Civil  War  Service.    See  CIVIL  WAR  SERVICE,  5.  6. 

31.  Same— The  advice  and  consent  of  the  Senate  is  not  required  for  the  issuance  of  com- 

missions to  those  retired  officers  of  the  Army,  Navy,  and  Marine  Corps  "whose  rank 
has  been  or  shall  hereafter  be  advanced  by  operation  of  or  in  accordance  with  law." 
( Act  Mar.  4, 1911,  36  Stat.  1354.)  File  22724-18,  J.  A.  G.,  Jan.  3, 1912. 


COMMISSIONS.  95 

32.  Revocation — After  signed  and  sealed,  impossible.    See  COMMISSIONS,  22. 

33.  Same.    See  File  4389;  26260-132  :  f,  J.  A.  G.,  June  2, 1909. 

34.  Sale  of — Officer  tried  by  general  court-martial  on  request  of  House  of  Representatives. 

See  CONGRESS,  11. 

35.  Secretary  of  the  Navy— May  sign  commissions.    See  SECRETARY  OF  THE  NAVY,  14. 

36.  Senate  ratifies— The  appointment  takes  place  when  the  President  has  issued  the  offi- 

cer's commission,  which  can  only  be  done  after  the  action  of  the  Senate.  (Pomeroy .  3d 
ed.,  sec.  646.)  The  President  is  to  nominate,  and  thereby  has  the  sole  power  to  select 
for  office;  but  his  nomination  can  not  confer  office  unless  approved  by  a  majority  of 
the  Senate.  (2  Story,  5th  ed.,sec.  1554.)  File 22724-16:1,  J.  A.  G.,  Apr.  24, 1911,  p.  9. 

37.  Sentimental  reasons — A  commission  should  not  be  issued  for  sentimental  reasons 

where  no  services  are  to  be  rendered  under  it,  the  appointment  having  been  declined 
after  confirmation  by  the  Senate.  The  department  can  not  properly  request  the 
President  to  commission  as  anaval  officer  a  person  who  has  never  rendered  any  service, 
and  who  formally  declined  on  the  day  on  which  he  was  confirmed,  to  accept  the 
appointment.  Such  course  would  be  wholly  without  precedent,  and  would  not  be 
warranted  by  the  circumstances  of  the  case.  To  ask  the  President  to  issue  a  com- 
mission with' the  distinct  and  explicit  understanding  that  it  is  not  to  be  accepted,  and 
is  not  to  go  into  effect,  would  be  an  entirely  anomalous  proceeding,  and  one  of  doubt- 
fuh  propriety.  (4  Op.  J.  A.  G.,  443,  Oct.  19,  1893;  quoted,  file  26251-2833,  Mar.  31, 
1910,  p.  3.  See  also  File  8622-2,  Feb.  10, 1908. 

38.  Signed  and  sealed— President's  right  over  no  longer  exists.    See  COMMISSIONS,  22. 

39.  Staff— Officer  advanced  in  rank  but  not  in  grade.    See  COMMISSIONS,  9. 

40.  Suspended — An  ensign  who  failed  on  examination  for  promotion,  was  suspended,  and 

after  six  months  qualified  and  was  promoted,  should  not  be  given  in  his  commission 
.  the  same  date  as  that  on  which  he  would  have  been  prompted  had  he  been  found 
qualified  upon  his  first  examination,  as  this  would  entitle  him  to  pay  for  a  period  of 
six  months  during  which  he  was  not  performing  the  duties  of  the  higher  grade  and 
had  demonstrated  his  inoompetency  therefor.  File  26266-475,  May,  1915. 

41.  Withholding  by  President— Even  after  confirmation  by  the  Seriate,  the  President 

may  in  his  discretion  withhold  a  commission  from  the  applicant.  And  until  a  com- 
mission, signifying  that  the  purpose  of  the  President  has  not  been  changed,  the 
appointment  is  not  fully  consummated.  See  File  4996,  June  1, 1906;  26251-2833,  Mar. 
31,1910.  Seealso4Or>.  Atty.  Gen.  218;  APPOINTMENTS, 9;  COMMISSIONS, 21. 

42.  Same— Until  commission  signed  by  President  may  be  withheld  and  promotion  not 

complete — Although  a  lieutenant  commander  has  been  examined  and  found  quali- 
fied for  promotion  to  the  grade  of  commander  and  the  board's  finding  approved  by 
the  President,  he  may,  nevertheless,  be  retired  under  section  9  of  the  personnel  act 
of  March  3, 1899(30  Stat.1004)  ,his  commission  not  having  been  signed  by  the  President. 
File  26297-7 : 3,  4,  5.  See  File  26297-14.  June  7, 1913,  for  a  similar  case  where  an  officer 
was  found  qualified  by  an  examining  board,  but  finding  of  board  not  acted  upon  by 
the  President.  See  also  File  26297-13,  June  7, 1913. 

43.  Same — President  may  withhold  commission,  or  the  delivery  of  the  commission  to  an 

officer  after  he  has  been  nominated  and  confirmed  by  the  Senate,  notwithstanding  a 
locus  penitentiae.  File  26251-2833,  J.  A.  G.,  Mar.  31,  1910.  See  also  12  Op.  Atty. 
Gen.  304;  Op.  J.  A.  G.,  June  1, 1906,  34  Br.  and  Op.  Book,  150;  14  Op.  J.  A.  G.,  353. 

COMMISSIONS  ILLEGALLY  RECEIVED  FROM  GOVERNMENT  CONTRAC- 
TORS.   See  C.  M.  O.  69,  1903,  2. 

COMMISSIONED  OFFICERS.    See  OFFICERS. 

COMMISSIONER  OF  PENSIONS. 

1.  Jurisdiction — For  granting  pensions.    See  PENSION?,  3,  4. 
COMMITTEES. 

1.  Government  Hospital  for  the  Insane— Committees  appointed  for  patients  at.    See 

GOVERNMENT  HOSPITAL  FOR  THE  INSANE.  2. 
COMMON  LAW.    See  also  WORDS  AND  PHRASES. 

1.  Charges  and  specifications— All  technicalities  applied  to  common  law  indictments  are 

not  required.    See  CHARGES  AND  SPECIFICATIONS,  99. 

2.  Embezzlement — Unknown  to  common  law.    See  EMBEZZLEMENT,  7. 

3.  ''Feloniously"— Use  of  at  common  law.    See  FELONIOUSLY,  2. 

4.  Jeopardy,  former— Principle  of  Constitution  is  derived  from   common    law.    See 

JEOPARDY,  FORMER,  4. 

50756°— 17 7 


96  COMMON    LAW. 

5.  Name,  change  of —At  common  law.    See  NAME,  CHANGE  OF,  6 

6.  Offenses— Punishment  of  common  law  offenses.    C.  M.  O.  21, 1910, 17.    Seeaho  C.  M.  O. 

2,  1912,  8. 

7.  Presumption  of  death — Generally  conceded  that  an  absence  of  seven  years  raises  a 

presumption  of  death.    C.  M.  0. 10, 1915,  9. 

8.  Rules  of  evidence.    C.  M.  O.  21, 1910, 14. 

9.  Rules  of  statutory  construction — Where  a  statute  is  intended  to  be  declaratory  of 

the  common  law  the  rule  of  construction  applies  that  statutes  are  to  be  construed 
with  reference  to  the  principles  of  common  law  and  in  harmony  therewith,  unless  a 
different  intention  on  the  part  of  the  legislature  is  manifested.  C.  M.  0. 29, 1914, 10, 12 . 

10.  Sodomy— Punishment  for  sodomy  at  common  law  was  death.    See  SODOMY,  15. 

11.  Specific  Intent—  Where  by  common  law  or  statute  a  specific  intent  is  essential  to  a 

crime,  it  must  be  proved.    See  DESERTION,  77. 

12.  Subtle  technicalities  of— Of  the  English  common  law  should  not  be  introduced  into 

naval  courts-martial  procedure  without  observing  the  limitation  by  which  their  appli- 
cation is  defined,  and  they  should  not  be  so  used  as  to  confuse  procedure  and  defeat 
the  administration  of  justice.  C.  M.  O.  94, 1905, 1. 

13.  Wife— Common  law  wife.    (File  26254-1936,  J.  A.  G.,  Jan.  29,  1910.)    See  DEATH  GRA- 

TUITY,  12. 

14.  Same — Witness — Competency  of.    See  WIFE,  5.  » 

COMMUTING   SENTENCES. 

1.  Convening  authority  may  not  commute  sentences— Every  officer  who  is  author- 

ized to  convene  a  general  court-martial  shall  have  power,  on  revision  of  its  proceedings, 
to  remit  or  mitigate,  but  not  to  commute,  the  sentence  of  any  such  court  which  he  is 
authorized  to  approve  and  confirm.  (This  article,  as  set  forth  above  in  the  form  given 
in  sec.  1624,  R.  S.,.is  modified  by  sec.  9  of  the  act  of  Feb.  16, 1909  (35  Stat.  621).)  See 
A.  G.  N.  33;  A.  G.  N.  54;  C.  M.  O.  51,  1893;  89,  1899, 1;  150, 1897,  3;  17,  1910,  8. 

2.  Same — The  officer  ordering  a  summary  court-martial  shall  have  power  to  remit,  in  part 

or  altogether,  but  not  to  commute,  the  sentence  of  the  court.  (A.  G.  N.  33.)  See 
COMMUTING  SENTENCES,  1. 

3.  Same— A  naval  cadet  was  sentenced  to  dismissal  from  the  naval  service,  and  the  revis- 
•     ing  authority  mitigated  this  sentence  to  loss  of  numbers.    The  department  held 

that  _A.  G.  N.  54  confers  upon  every  officer  authorized  to  convene  a  general  court- 
martial  "power  on  revision  of  its  proceedings  to  remit  or  mitigate,  but  not  to  commute 
the  sentence."  The  action  of  tne  revising  authority  in  changing  the  punishment 
awarded  by  the  court  from  dismissal  to  loss  of  numbers  amounted  to  a  commutation 
of  the  sentence,  which  is  expressly  forbidden  by  the  statutory  provision  quoted. 
The  sentence  was  accordingly  set  aside.  C.  M.  0. 89,  1899,  1.  See  also  C.  M.  O.  150, 
1897,  3;  17,  1910,  8;  G.  C.  M.  Rec.  28521.  But  see  COMMUTING  SENTENCES,  1;  DIS- 
MISSAL. 19. 

4.  President— An  officer  was  sentenced  to  dismissal  from  the  naval  service.    The  Presi- 

dent placed  the  following  action  on  the  record;  The  sentence  "is  hereby  approved, 
but  it  is  commuted  to  the  loss  of  fifteen  numbers  in  his  grade."  C.  M.  O.  38, 1907, 1-2. 
See  also  CONVENING  AUTHORITY,  50.  The  President  in  the  exercise  of  his  power  to 
pardon  may  commute  a  sentence. 

COMPANY  FUND.    See  C.  M.  O.  49, 1915,  4. 

COMPENSATION. 

1.  Counsel— Naval  officers  before  naval  courts-martial.    Sec  COUNSEL,  17. 

2.  Retired  officers— Whether  considered  as  "pay"  or  "pension."      See  RETIRED  OFFI- 

CERS, 16. 

COMPETENCY  OF  WITNESSES.    See  DECK  COURTS,  5  (p.  159);  EVIDENCE,  79.   See 

also  WITNESSES,  29,  52. 

COMPLAINING  WITNESSES.    See  C.  M.  O.  53, 1910,  2;  54,  1910,  2. 
COMPLEMENTS   OF  SHIPS.    See  File  13352-407,  J.  A.  G.,  Mar.  16,  1912. 
COMPOUNDING  A  FELONY.    File  5208-1,  J.  A.  G.,  July  2,  1906. 


COMPTROLLER   OF   THE    TREASURY.  97 

COMPTROLLER  OF  THE  TREASURY. 

1.  Abstract  questions — The  comptroller  will  not  render  decisions  upon  abstract  ques- 

tions.   File  26254-345:1. 

2.  Administrative  matters — Policy  of  the  department— The  policy  of  the  Navy  Depart- 

ment has  been  to  disapprove  the  submission  to  the  Comptroller  of  the  Treasury  of 
specific  questions  involving  administrative  matters  under  its  own  jurisdiction,  and 
the  department  has  not  been  inclined  to  invite  controversy  by  specifically  requesting 
his  decision  upon  questions  which  the  law  places  under  the  cognizance  of  the  Secretary 
of  the  Navy.  File  11112-476,  J.  A.  G.,  Feb.  20,  1915;  C.  M.  O.  10,  1915,  8.  See  also 
SECRETARY  OF  THE  NAVY,  18. 

3.  Death  gratuity.  See  DEATH  GRATUITY. 

4.  Department — Policy  of  Navy  Department  with  reference  to  administrative  matters. 

See  COMPTROLLER  OF  THE  TREASURY,  2. 

5.  Form  of  requests  for  decisions.    See  COMPTROLLER  OF  THE  TREASURY,  12. 

6.  Jurisdiction — No  jurisdiction — When  item  from  which  appealed  is  not  disallowed  but 

only  suspended.    File  26254-316:a. 
For  jurisdiction  of  Comptroller  in  general,  see  COMPTROLLER  OF  THE  TREASURY,  18. 

7.  Navy  Regulations— Validity  of.    (File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915;  30  Op. 

Atty.  Gen.  — .)    See  REGULATIONS,  NAVY,  10. 

8.  Orders — Comptroller  can  not  relieve  officers  of  duty  to  obey  orders.    File  26254-58, 

June  27, 1908. 

9.  Pending  questions — The  department  will  not  request  decision  of  comptroller  upon  a 

matter  which  is  pending  before  the  auditor.    File  26254-324. 

10.  Questions  of  law — The  comptroller's  decision  upon  a  question  of  law  involved  in  the 

settlement  of  accounts  under  his  cognizance,  is  not  binding  upon  the  department  in 
taking  action  upon  matters  under  its  cognizance,  even  though  the  identical  question 
of  law  maybe  involved.  File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915.  See  also  BIL- 
LINGS v.  U.  S.,  23  Ct.  Cls.  180. 

11.  Reconsideration  of  decision — It  is  not  the  policy  of  the  department  to  request  the 

Comptroller  of  the  Treasury  to  reconsider  his  decisions  in  individual  cases  unless  such 
decisions  tend  to  disturb  the  practice  of  the  service,  based  on  naval  regulations  or 
instructions  issued  pursuant  to  law.  File  26254-1947,  Sec.  Navy,  Jan.  19, 1916;  C.  M. 
O.  3, 1916.  8. 

12.  Requests  for  decisions  of — Form  of — Requests  for  decisions  of  the  Comptroller  of  the 

Treasury  should  contain  a  concise  statement  of  facts,  with  all  comments  and  argu- 
ments not  necessary  to  a  decision  of  the  case  by  the  comptroller  eliminated. 

The  rule  formulated  by  the  Attorney  General,  and  which  the  department  applies 
equally  to  requests  for  decisions  submitted  to  it  for  transmittal  to  the  comptroller,  is  as 
follows: 

"When  an  opinion  is  requested  of  the  Department  of  Justice  on  behalf  of  the  head 
of  another  executive  department  the  facts  must  be  definitely  formulated  and  clearly 
stated  by  the  person  asking  the  opinion.  The  Attorney  General  can  not  be  required  to 
extract  a  finding  of  facts  from  correspondence  or  reports. "  (22  Op.  Atty.  Gen.  342.) 
"  The  unvarying  practice  of  the  Attorney  General  from  the  foundation  of  the  Govern- 
ment, has  been  to  require  a  succinct  statement  of  the  facts  and  of  the  question  of  law 
arising  thereupon  upon  which  an  opinion  is  desired."  (20  Op.  Atty.  Gen.  493.) 
File  26254-1263,  Sec.  Navy,  Aug.  19, 1913;  C.  M.  O.  10, 1915,  7.  See  also  File  26254- 
1661,  Sec.  Navy,  N9V.  5, 1914. 

13.  Same — Administrative  questions  not  under  comptroller's  jurisdiction.    See  COMP- 

TROLLER OF  THE  TREASURY,  2. 

14.  Same — Naval  Instructions  1913,  1-2205  (2),  reads  as  follows.    "Applications  to  the 

Comptroller  of  the  Treasury,  under  the  act  approved  July  31,  1894  [28  Stat.  208],  for 
his  decision  upon  any  question  involving  a  prospective  payment,  shall  be  forwarded 
through  the  usual  official  channels  to  the  Navy  Department  for  transmission  to  that 
officer. " 

In  view  of  the  above  the  action  of  an  officer  who  submitted  a  request  direct  to  the 
comptroller  for  a  decision  as  to  legality  of  payments  to  court-martial  prisoners  was  in 
•  violation  of  the  foregoing  naval  instructions. 

In  this  connection  it  should  be  understood  that  the  department  will  gladly  forward 
to  the  comptroller  any  request  of  a  pay  officer  in  which  a  question  of  a  payment,  past  or 
prospective,  is  at  issue,  but  1-2205  (2)  was  promulgated  in  order  not  only  to  discourage 
questions  of  a  trivial  nature  being  sent  the  comptroller,  or  those  previously  decided 


98  COMPTROLLER    OF   THE    TREASURY. 

by  him,  but  also  to  afford  the  department  an  opportunity  to  decide  questions  which 
are  administrative.  (See  C.  M.  O.  10, 1915,  p.  8.)  File  26254-1922.  Sec.  Navy,  Dec. 
10, 1915:  C.  M.  O..  49, 1915,  22.  See  also  File  26254-1964,  Sec.  Navy,  Feb.  12, 1916. 

15.  Same — Vexatious — While  the  right  to  appeal  to  the  Comptroller  of  the  Treasury  from 

a  disallowance  by  the  auditor,  can  not  oe  denied,  yet  when  the  question  presented 
was  plainly  covered  by  previous  decisions,  the  department  returned  letter  to  claimant 
approving  the  Paymaster  General's  indorsement  that  "  it  is  regarded  merely  in  the 
nature  of  a  vexatious  demand  upon  the  comptroller's  time  to  submit  this  claim." 
File  26254-360.  See  also  COMPTROLLER  OF  THE  TREASURY,  14. 

16.  Retired  officers — Jurisdiction  of  Comptroller  over  pay  and  rank.    See  RETIRED  OFFI- 

CERS, 17. 

17.  Ships'  stores.    See  SHIPS'  STORE,  1. 

18.  Status— Prior  to  the  act  of  July  31, 1894  (28  Stat.  208)  the  Comptroller  ot  the  Treasury 

had  no  legal  status  as  an  adviser  on  questions  of  law.  He  was  an  accounting  officer 
holding  great  power,  but  his  function  was  to  take  action,  not  to  advise  others  how  to 
act.  (20  Op.  Atty.  Gen.  654.)  The  practice,  however,  developed  of  asking  the  Comp- 
troller's opinion  upon  questions  of  law  involving  payments,  and  this  practice  was 
given  legal  sanction  by  the  act  of  July  31, 1894,  section  8  (28  Stat.  208),  which  required 
the  Comptroller  of  the  Treasury  to  render  a  decision  upon  the  request  of  heads  of 
executive  departments  upon  any  question  involving  a  payment  to  be  made  by  or 
under  them,  "which  decision  when  rendered  shall  govern  the  Auditor  and  the  Comp- 
troller of  the  Treasury  in  passing  upon  the  account  containing  said  disbursement." 
This  statute  plainly  limits  the  Comptroller  of  the  Treasury's  jurisdiction  to  decisions 
upon  proposed  payments  in  specific  cases,  for  it  speaks  of  "a  payment  to  be  made," 
and  "the  account  containing  said  disbursement.'  (1  Comp.  Dec.  3i;  2  Comp.  Dec. 
58;  5  Comp.  Dec.  562.)  File  26254-1451:11,  J.  A.  G.,  April  12,  1915,  p.  19. 

COMPULSORY  PROCESS. 

1.  Constitutional  right — Of  accused  to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor  should  never  be  denied.  C.  M.  O.  17,  1910,  9.  See  also  CONSTITUTIONAL 
RIGHTS  OF  ACCUSED,  17. 

CONCLUSIONS  OF  LAW. 

1.  Court  of  Claims.    See  C.  M.  0. 10, 1915, 13. 

2.  "Culpable" — States  a  mere  conclusion  of  law  and  is  not  necessarily  essential  to  the 

validity  of  the  charge  of "  Culpable  inefficiency  hi  the  .performance  of  duty  "  if  improp- 
erly excepted  by  the  court  in  its  finding.  C.  M.  O.  f,  1914, 1.  7. 

3.  "Desertion" — The  word  "desertian"  as  used  in  specifications  under  a  charge  of 

"  Desertion." 

4.  Finding— A  court-martial  found  proved  all  the  substantial  allegations  of  fact  contained 

in  a  specification  but  did  not  find  proved  the  conclusions  of  law  as  set  forth  in  the 
same  specification.  C.  M.  O.  4, 1913, 9. 

5.  Offense — An  offense  is  charged  by  the  statement  of  the  material  facts  which  constitute 

it,  and  not  by  the  statement  of  a  mere  conclusion  of  law.  C.  M.  O.  4, 1914, 1,  7.  See 
also  CHARGES  AND  SPECIFICATIONS,  49;  CONDUCT  UNBECOMING  AN  OFFICER  AND  A 
GENTLEMAN,  7. 

6.  "Unlawful."    See  "  UNLAWFUL  PURPOSE." 

CONDITIONAL  DISCHARGE.    See  DISCHARGE  OBTAINED  BY  FRAUD. 
CONDITIONAL  SALE.    C.  M.  O.  6,  1915,  9.    See  also  DESERTERS,  11. 
CONDITIONAL  PARDON.    See  PARDONS,  4,  5. 

CONDONE. 

1.  Drunkenness  on  duty — Department  does  not  desire  to  condone  such  offenses  as 

"drunkenness  on  duty."    C.  M.  O.  5, 1915,  2. 

2.  Sentence  remitted — Department  remitted  sentence  of  an  officer,  without  condoning 

accused's  offense  in  order  to  avoid  a  miscarriage  of  justice.    C.  M.  0. 37, 1915, 9. 

3.  Unofflcerlike  conduct— The  department  does  not  desire  to  condone  such  offens.es  as 

unofficerlike conduct.    C.  M.  O.  28, 1894,  4. 

CONDUCT  RECORD  OF  THE  ACCUSED.    C.  M.  0. 96, 1898.   See  also  EVIDENCE,  14; 
SERVICE  RECORDS;  REPORTS  ON  FITNESS;  SUMMARY  COURTS-MARTIAL,  13. 

CONDUCT  REPORTS.    C.  M.  0. 15, 1910,  4-5.    See  also  PROBATION,  17. 


CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN.    99 

CONDUCT  SUBVERSIVE  OP  GOOD  ORDER  AND  THE  DISCIPLINE  OF  THE 
SERVICE. 

1.  Officer  charged  with.    G.  C.  M.  Rec.  6230. 

CONDUCT  TO  THE  PREJUDICE  OP  GOOD  ORDER  AND  DISCIPLINE. 

1.  Absence  unauthorized — With  manifest  intention  of  evading  transfer  to  another  shin 

is  chargeable  both  under  "Conduct  to  the  prejudice  of  good  order  and  discipline, 
and  a  charge  specifying  unauthorized  absence.    C.  M.  0. 27, 1915, 2.    See  also  ABSENCE 
FKOM  STATION  AND  DUTY  WITHOUT  LEAVE,  12. 

2.  Same— Not  properly  chargeable  under.    See  ABSENCE  FKOM  STATION  AND  DUTY 

WITHOUT  LEAVE,  12. 

3.  Attempt  to  smuggle  liquor— Into  navy  yard.    G.  C.  M.  Rec.  31142. 

4.  Attempted  unauthorized  absence.    G.  C.  M.  Rec.  31333. 

5.  Avoiding— Expeditionary  duty.    G.  C.  M.  Rec.  32136. 

6.  Breaking  arrest — Not  properly  chargeable  under.    See  BREAKING  ARREST,  2. 

7.  Same — Enlisted  man  broke  arrest  after  expiration  of  enlistment  but  before  discharge. 

See  BREAKING  ARREST,  3. 

8.  Discharge  obtained  by  fraud.    See  DISCHARGE  OBTAINED  BY  FRAUD. 

9.  Disrespectful — Letter  to  Major  General  Commandant,  Marine  Corps.    G.  C.  M.  Rec. 

31679. 

10.  Leaving  ship — While  under  suspension  from  duty  and  missing  ship.    G.  M.  C.  Rec. 

31925. 

11.  Midshipmen— Charged  with.    C.  M.  0. 10, 1909;  41,  1909;  8, 1912;  G.  C.  M.  Rec.  25104. 

12.  Missing  ship— Chargeable  under.    C.  M.  O.  42, 1915,  1;   49, 1915, 1,  2;  G.  C.  M.  Rec. 

31298. 

13.  Same— And  avoiding  expeditionary  duty.    G.  C.  M.  Rec.  32136. 

14.  Same— Officer.    C.  M.  0. 14, 1916. 

15.  Money  transactions— It  is  doubtful  if  money  transactions  of  a  culpable  character 

between  enlisted  men.  in  their  private  capacity  and  not  directly  affecting  the  naval 
service  or  impairing  discipline,  can  be  charged  under  "Conduct  to  the  prejudice  of 
good  order  and  discipline."  File  26287-1041,  J.  A.  G.,  Jan.  13, 1912.  See  also  SCAN- 
DALOUS CONDUCT  TENDING  TO  THE  DESTRUCTION  OF  GOOD  MORALS,  6, 9. 

16.  Not  halting— When  challenged  by  patrol.    G.  C.  M.  Rec.  29071. 

17.  Officers— Charged  with.    C.  M.  O.  8,  1909;  11,  1909;  15,  1909;  39,  1909;  40,  1909;  45, 

1909;  46,  1910;  51,  1910;  16,  1910;  18,  1910;  24,  1910;  4,  1911;  13,  1911;  15,  1911;  9,  1912; 
15,  1912,  5;  22,  1912;  23,  1913;  31,  1913;  7, 1914;  11,  1914;  17, 1914;  19,  1914;  27,  1914:  43 
1914;  14, 1916;  18,  1916;  40,  1916;  41,  1916;  1,  1917;  2,  1917;  5,  1917;  6,1917;  9,  1917. 

18.  Warrant  officers— Charged  with.    C.  M.  0. 12, 1912,  3;  17, 1912;  18, 1912;  10, 1914;  38, 

1914;  11, 1916;  20, 1916. 

19.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  O.  46, 1915;  38,  1916. 

20.  What  constitutes.   See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  12. 

CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 

1.  Army — Sentence  of  dismissal  mandatory  for  officers  found  guilty  of.    C.  M.  O.  49, 1915, 

23.    See  also  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  6. 

2.  Debts — Nonpayment  of.  charged  under.    See  DEBTS,  2, 12. 

3.  Midshipmen— Charged  with.    C.  M.  O.  9, 1909;  7, 1912;  8, 1912. 

4.  Newspaper— Officer  writing  letters  to.    C.  M.  O.  22, 1890. 

5.  Officers— Charged  with.    C.  M.  O.  5, 1909;  16, 1909;  48, 1910;  53, 1910;  54, 1910;  15, 1911; 

32,  1911;  13,  1912;  36,  1913;  40,  1913;  20,  1914;  26,  1914;  27,  1914;  80,  1914;  43,  1914; 
1, 1916;  12,  1916;  15,  1916;  5  1917;  10,  1917;  20,  1917. 

6.  Sentence  should  include  dismissal — Congress  by  law  has  provided  that  any  officer 

of  the  Army  convicted  of  "Conduct  unbecoming  an  officer  and  a  gentleman''  "shall 
be  dismissed  from  the  service"  (sec.  1342,  art.  61,  Rev.  Stats.),  thus  making  a  sentence 
of  dismissal  mandatory  upon  conviction  of  the  offense  named  in  Army  cases. 

While  there  is  no  similar  statutory  enactment  with  reference  to  the  Navy,  the  fore- 
going is  sufficient  evidence  of  how  seriously  this  particular  offense  has  been  regarded 
by  Congress. 

A  court-martial  composed  of  naval  officers  should  not  refuse  to  accept  for  the  service 
of  which  they  are  members  the  standard  fixed  by  law  to  which  officers  of  the  Army 
must  conform  in  order  to  retain  their  commissions.  File  26251-11181,  Sec.  Navy,  Dec. 
17, 1915;  G.  C.  M.,  Rec.  31436;  C.  M.  O.  49, 1915,  23.  See  also  File  13673-3728,  J.  A.  G., 
Mar.  17, 1916;  C.  M.  0. 12, 1916, 1-2;  COURT,  169. 

7.  Specification  under  charge  of— An  addition  to  specification  under  a  charge  of  "Con- 

duct unbecoming  an  officer,"  etc.,  of  the  words  "all  of  which  was  an  abuse  of  his  trust, 


100  CONFESSIONS. 

a  violation  of  his  public  duty,  and  was  conduct  unbecoming  an  officer  and  a  gentle- 
man" does  not  affect  the  specification,  whether  or  not  such  words  are  found  proved. 
File  26251-3252.  J.  A.  G.,  Apr.  26, 1910,  p.  5. 

8.  Warrant  officers— Charged  with.    C.  M.  0. 5, 1913;  13, 1913;  29, 1913;  11,  1915;  20, 1916. 

9.  Warrant  officer,  retired— Charged  with.    C.  M.  O.  34,  1916. 

10.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  O.  21,  1915;  2,  1916.. 

11.  Warrant  officers  (commissioned),  retired— Charged  with.    C.  M.  O.  15,  1915;  20, 

1916. 

12.  What  constitutes—"  What  is  conduct  unbecoming  an  officer  and  a  gentleman,  or  what 

is  conduct  to  the  prejudice  of  good  order  and  military  discipline,  is  beyond  the  bounds 
of  exact  formula  and  must  depend  more  or  less  upon  the  circumstances  and  peculiari- 
ties in  each  case.  *  *  *  *  The  cases  which  involve  conduct  to  the  prejudice  of 
good  order  and  military  discipline  are  still  further  beyond  the  bounds  of  ordinary 
Judicial  judgment,  for  they  are  not  measurable  by  our  innate  sense  of  right  and  wrong, 
of  honor  and  dishonor,  but  must  be  gauged  by  an  actual  knowledge  and  experience 
of  military  life,  its  usages  and  duties."  "In  the  recent  case  of  Fletcher  (26  Ct.  Cls. 
541,  562),  where  the  court  was  obliged  to  pass  upon  the  legality  of  a  sentence  for  con- 
duct unbecoming  an  officer  and  a  gentleman,  resting  upon  a  series  of  acts  which 
neither  civil  nor  criminal  jurisprudence  wovld  have  stigmatized  as  fraudulent,  it  was 
said  *  *  *  'In  military  life  there  is  a  higher  code  termed  honor,  which  holds  its 
society  to  stricter  accountability;  and  it  is  not  desirable  that  the  standard  of  the 
Army  [and  Navy]  shall  come  down  to  the  requirements  of  a  criminal  code.'" 
(Swaim  v.  U.  8.,  28  Ct.  Cls.  173.)  File  26260-1392,  26260-697,  J.  A.  G.,  June  29, 1911, 
p.  10.  See  also  HONOR;  JURISDICTION,  26. 

CONDUCT  UNBECOMING  AN  OFFICER  OF  THE  NAVY. 

1.  Midshipman— Charged  with.    C.  M.  O.  3, 1909. 

CONFESSIONS. 

1.  Adiiilssibility  and  nature  of — The  commanding  officer  of  the  accused    called  his 

attention  to  a  newspaper  account  of  certain  occurrences  in  which  the  accused  par- 
ticipated while  on  snore  "and  asked  him  if  he  had  any  statement  to  male  concern- 
ing it."  The  accused  thereupon  made  a  verbal  statement  concerning  the  newspaper 
report  "without  threat,  inducement,  or  promise  of  reward."  The  commanding  offi- 
cer then  "asked  him  if  he  would  make  a  written  statement"  and  the  accused  com- 
plied without  "any  threat  or  reward  or  promise."  The  department  held  that  both 
the  verbal  and  written  statements  were  admissible  as  confessions.  C.  M.  0.  7, 1914, 
13-14. 

2.  Same — It  is  generally  agreed  that  voluntary  and  deliberate  confessions  of  guilt  are 

among  the  most  effectual  proofs  in  the  law,  on  the  presumption  that  a  rational 
being  will  not  make  admissions  prejudicial  to  his  interest  and  safety,  unless  urged 
by  the  promptings  of  truth  and  conscience.  (2  Moore  on  Facts,  sec.  1181,  and 
authorities  cited.)  The  real  question  to  be  considered  in  determining  whether  or 
not  the  confession  was  voluntary  is,  "was  there  any  threat  or  promise  of  such  a  nature 
as  would  be  likely  to  cause  the  accused,  to  tell  an  untruth  from  fear  of  the  threat  or  hope  of 
profit  from  the  promise?"  (C.  M.  O.  26, 1910.) 

The  rule  is  well  stated  that  "whether  a  confession  is  voluntary  depends  largely 
upon  the  facts  of  the  particular  case.  If  it  is  obtained  by  reason  of  oral  threats  of 
harm,  by  promise  of  benefit,  or  by  actions  of  those  in  control  of  the  prisoner  which 
are  equivalent  to  such  threats  or  promises,  it  is  involuntary  and  incompetent,  and 
in  determining  whether  it  was  obtained  by  such  means  the  sex,  age,  disposition, 
education,  and  previous  training  of  the  prisoner,  his  mental  qualities,  his  physical  health, 
and  his  surroundings  are  elements  to  be  considered."  (12  Cyc.,  464.)  C.  M.  O.  7,  1914, 
14.  See  also  C.  M.  O.  224, 1902. 

3.  Same — The  prosecution  introduced  in  evidence  an  alleged  confession  of  the  accused. 

The  accused  testified  that  he  was  under  the  impression  that  his  commanding  officer 
"was  going  to  get  him  out  of  this  trouble." 

From  the  testimony  adduced  there  does  not  appear  to  have  been  any  promise 
made  by  his  commanding  officer  to  relieve  the  accused  from  prosecution  nor  any 
such  promise  or  representation  as  could  reasonably  have  induced  the  accused  to 
state  things  that  were  not  true,  even  though  the  court  gave  full  faith  and  credit  to 
the  testimony  of  the  accused  as  to  the  statements  made  to  him  by  his  commanding 
officer. 

The  question  as  to  whether  or  not  the  accused  was  influenced  to  make  this  con- 
fession through  expectations  that  he  would  not  be  prosecuted  does  not  rest  upon  his 


CONFESSIONS.  101 

testimony  that  such  were  the  facts,  but  upon  whether  the  court,  taking  into  consid- 
eration all  the  testimony  in  connection  therewith,  considered  that  the  accused  was 
justified  in  believing  that  he  would  not  be  court-martialed  if  he  made  a  confession. 
C.  M.  O.  26, 1910,  9. 

4.  Same— In  Pierce  v.  United  States  (160  U.  S.,  355),  the  admission  in  evidence  of  certain 
statements  made  by  the  defendant  while  under  arrest  and  handcuffed  was  objected 
to.  As  to  this  matter  the  Supreme  Court  said: 

"No  exception  was  taken  to  the  admission  of  this  testimony,  and  the  court  prop- 
erly held  that  the  mere  prasence  of  officers  is  not  an  influence.  Confessions  are  not 
rendered  inadmissible  by  the  fact  that  the  parties  are  in  custody,  provided  that 


confession  may  be  made  while  a  defendant  is  confined  and  in  irons  under  an  accusation 
of  having  committed  a  capital  offense. 

"A  confession  is  admissible  even  if  elicited  by  questions,  whether  put  to  the  pris- 
oner by  a  magistrate,  officer,  or  private  person."  (Greenleaf,  15th  ed.,  229.) 

And  also,  if  the  statement  of  the  accused  be  not  regarded  as  a  full  confession  of  guilt, 
then  a  fortiori:  • 

"Mere  incriminating  statements  of  facts  not  amounting  to  confessions  of  guilt  are 
not  subject  to  the  restrictions  that  obtain  in  the  case  of  confessions." 

It  was  also  held  in  the  case  of  United  States  v.  Graff  (26  Fed.  Cas.  No.  15244)  that— 

"A  written  statement  made  freely,  without  the  influence  of  a  threat  or  promise, 
by  a  person  acknowledging  his  connection  with  another  in  smuggling  goods,  may 
be  admitted  in  evidence  against  the  former,  where  it  appears  that  he  was  not  under 
arrest,  though  he  had  been  told  that  he  was  charged  with  being  connected  with 
smuggling." 

And  indeed  an  accused  person  may  be  actually  made  drunk,  and  if  a  confession  is 
made  while  thus  intoxicated  it  will  nevertheless  be  admissible.  C.  M.  0. 31, 1911, 5-6. 

5.  Same-;-The  corpus  delicti  having  been  proved,  a  confession  by  the  accused  may  be 

admitted  hi  evidence,  providing  tt  was  a  voluntary  confession.  A  letter  claimed  to 
have  been  written  by  the  accused  in  which  he  acknowledged  having  drawn  transpor- 
tation illegally  against  the  Government  was  introduced  by  the  judge  advocate  for  the 
purpose  of  proving  thecharge  made  against  the  accused  (misappropriating  to  his  own 
use  the  transportation  in  question).  Held,  That  in  order  that  such  letter  be  admis- 
sible as  a  confession,  it  must  be  proved,  (1)  that  the  transportation  was  actually 
drawn,  (2)  that  the  confession  contained  in  the  letter  was  voluntarily  written  by  the 
accused,  and  (3)  that  it  was  actually  written  and  signed  by  the  accused.  C.  M.  0. 17, 
1910.  3-4.  Seealso  C.  M.  O.  42, 1909,  6;  26, 1910, 9-10;  31, 1911, 5;  G.  C.  M.  Rec.  21166, 
21176,  21203,  21205,  21243,  21244,  22393,  23490,  23491,  23492,  24221,  24258. 

6.  Same — Forms  of  Procedure,  1910,  page  138,  states  that "  it  must  be  clearly  shown  that 

the  confession  was  voluntary,  and  anything  that  will  tend  to  show  that  a  confession 
was  extorted  by  threats  or  promises,  or  by  use  of  force,  especially  by  one  in  authority, 
will  destroy  its  value  as  evidence."  (See also  C.  M.  O.  224, 1902;  32. 1908,  2;  47, 1910, 
6;  17, 1910,  4;  26, 1910.  9;  31, 1911, 5-6;  5, 1913,  9;  10,  1915,  5;  Index-Digest,  1914,  10.) 
C.  M.  O.  3. 1916,  6.  See  also  File  26251-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  10. 

7.  Same— Against  third  parties— In  sodomy.    G.  C.  M.  Rec.  23491.    See  also  G.  C.  M. 

Rec.  23490, 23492;  CONFESSIONS,  23. 

8.  Board  of  Investigation— The  statement  made  by  an  accused  before  a  board  of  investi- 

gation, when  such  statement  takes  the  complexion  of  an  admission  against  interest  or 
a  confession,  is  admissible  before  naval  courts-martial.  G.  C.  M.  Rec.  11279. 

9.  Commanding  officer — The  fact  that  an  accused  confessed  to  his  commanding  officer, 

who  was  investigating  this  case,  does  not  of  itself  throw  doubt  upon  the  truthfulness 
of  his  confession  and  thus  render  it  inadmissible.  (C.  M.  O.  7,  1914,  13-15;  Index- 
Digest,  1914, 10.)  C.  M.  O.  3, 1916,  7.  SeealsoC.M.  0.212,1902. 

In  a  case  where  the  accused  made  a  confession  to  his  commanding  officer  the 
department  remarked  as  follows:  As  stated  by  the  judge  advocate  in  his  closing 
argument  upon  the  trial  of  the  accused  "the  accused  in  this  case  is  not  a  boy,  nor  is 
he  drawing  a  boy's  salary.  He  graduated  from  the  Naval  Academy  five  years  ago, 
and  is  26  years  of  age.  He  holds  a  commission  in  the  United  States  Navy,  with  the 
honor  and  trust  it  is  presumed  to  carry  with  it."  It  can  not  be  presumed  that  a  com- 
missioned officer  of  the  Navv  would  regard  a  simple  question  put  to  him  by  his  com- 
manding officer  as  to  whether  "he  had  any  statement  to  make,"  as  compelling  or 
inducing  him  to  make  an  involuntary  statement  of  such  character  that  it  could  not 


102  CONFESSIONS. 

reasonably  be  accepted  as  true,  particularly  when,  as  in  this  case,  the  accused  had 
himself  voluntarily  sought  an  interview  with  his  commanding  officer  in  connection 
with  the  matter.  On  the  contrary,  a  commissioned  officer  of  the  age,  education,  and 
experience  of  the  accused  must  be  presumed  to  know — and  is  in  fact  required  to  know — 
the  provisions  of  the  Navy  Regulations,  1913,  contained  in  chapter  13,  entitled  "Naval 
Administration  and  Discipline,"  one  paragraph  of  which  chapter  (Art.  R.  1404  (2)) 
reads  as  follows:  "He  [commanding  officer]  shall  also  call  upon  the  accused  for  such  • 
counter  statement  or  explanation  as  he  may  wish  to  make,  and  for  a  list  of  the  persons 
he  desires  to  have  questioned  in  his  behalf.  If  the  accused  does  not  desire  to  submit  a 
statementhe  shall  set? 'orth  that  fact  in  writ 'ing."  Accordingly,  the  accused  and  the  mem- 
bers of  the  general  court-martial  by  which  he  was  tried  are  chargeable  with  knowledge 
of  the  fact  that  the  commanding  officer,  even  had  he  desired  or  undertaken  to  do  so, 
could  not  legally  compel  any  subordinate  under  his  command  to  make  a  statement 
relative  to  accusations  against  such  subordinate.  Furthermore,  as  the  members  of 
the  court-martial  in  this  case  were  required  to  know,  it  is  not  necessary  that  the 
accused  should  be  warned  that  any  statement  he  might  make  would  be  used  against 
him  as  evidence.  (See  C.  M.  O.  31, 1911,  and  decisions  of  the  Supreme  Court  and 
Other  authorities  quoted  therein.)  C.  M.  O.  7, 1914, 14-15. 

A  statement  of  an  accused,  charged  with  "desertion,"  made  by  him  before  his  com- 
manding officer  when  his  offense  is  being  investigated  at  the  mast,  is  uniformly  ad- 
mitted in  evidence  when  he  is  tried  for  the  offense.  C.  M.  O.  43, 1906,  2. 
10.  Coroner's  inquest — Repeated  efforts  were  made  by  the  judge  advocate  to  introduce 
in  evidence  the  testimony  given  by  the  accused  before  the  coroner's  inquest  which 
inquired  into  the  death  of  his  deceased  wife.  A  copy  of  the  record  was  produced  by  a 
witness,  who  testified  that  he  was  deputy  county  clerk  and  the  legal  custodian  of  the 
record;  that  the  original  thereof  was  filed  by  him  in  the  office  of  the  county  clerk; 
that  the  copy  produced  was  a  duplicate  made  at  the  same  time  as  the  original  and  by 
the  same  process;  and  that  the  duplicate  had  been  certified  by  him  the  same  as  the  one 
on  file.  The  judge  advocate  specified  the  portions  of  the  record  containing  the  testi- 
mony of  the  accused  which  he  desired  to  introduce,  but  the  introduction  thereof  was 
objected  to  by  counsel  for  the  accused,  and  objection  sustained  by  the  court  on  the 
ground  that  such  testimony  was  irrelevant  and  not  voluntary.  Subsequently,  the 
judge  advocate  endeavored  to  introduce  a  portion  of  such  testimony  by  oral  examina- 
tion of  the  coroner,  who  was  present  at  the  inquest.  This,  however,  was  also  refused 
bythecourt.  In  People  z;.  Moliiieaux(168N.  Y.,331;  61N.E.,308;  62  L.  R.  A..193) 
it  was  stated  by  the  court  that  the  rule  "  is  now  firmly  established  hi  this  State  [New 
York]  that  when  a  person  testifies  at  an  inquest  as  an  accused  or  arrested  party,  his 
testimony  can  not  be  used  against  him  upon  a  subsequent  trial  of  an  indictment 
growing  out  of  the  inquest  unless  his  testimony  has  been  voluntarily  given  after  he 
has  been  fully  advised  of  all  his  rights  and  has  been  given  an  opportunity  to  avail 
himself  of  them."  (See  also  State  v .  Finch.  Supreme  Court  of  Kansas,  81  Pac.,  494.) 
In  the  case  of  States.  Wescott(104N.W.,  341. 343)  it  was  held  by  the  Supreme  Court  of 
Iowa,  with  reference  to  the  admission  in  evidence  of  a  confession  made  oy  the  defend- 
ant before  a  coroner's  inquest,  that  "there  was  no  error  here  of  which  defendant  may 
justly  complain.  While  the  defendant  may  have  been  under  unlawful  arrest,  this  did 
not  of  itself  make  the  confession  involuntary.  There  were  no  threats  or  duress  suffi- 
cient to  destroy  the  voluntary  character  of  the  confession.  *  *  *  Before  making 
the  statement  on  the  morning  of  December  13,  the  defendant  was  fully  advised  as  to 
his  rights,  and  there  were  no  threats  or  promises  made  at  that  time.  Apparently  what 
he  said  or  did  was  entirely  voluntary."  In  the  case  of  Green  v.  State  (52  S.  E.,  431), 
decided  by  the  Supreme  Court  of  Georgia  November  20,  1905,  it  was  held,  quoting 
syllabus: 

"It  is  competent  to  prove  on  a  subsequent  trial  the  statement  of  the  prisoner  at  a 
coroner's  inquest  by  the  testimony  of  witnesses  who  profess  to  remember  the  substance 
of  such  statement;  and  it  is  not  error  for  the  court  to  overrule  an  objection  to  such  tes- 
timony, urged  on  the  ground  that  'the  law  requires  the  evidence  before  the  coroner's 
jury  to  oe  in  writing,  and  the  writing  would  be  better  evidence  of  what  the  witness 
said.  *  *  *.' 

"An  objection  to  the  admission  of  the  same  evidence,  on  the  ground  that  'the  de- 
fendant was  in  the  custody  of  the  officers,  under  arrest,  and  while  thus  situated  was 
compelled  to  give  testimony  against  herself,  and  it  was  unlawful  to  require  her  to  make 
any  statement  tending  to  incriminate  herself;  and  therefore  such  statement  would  be 
inadmissible,'  is  equally  without  merit  where  the  record  does  not  disclose  any  evi- 
dence, either  of  compulsion  or  that  the  statement  proved  by  such  testimony  was  not 


CONFESSIONS.  103 

freely  and  voluntarily  made."  (See  also  14  Cent.  Dig.  Crim.  Laws,  sees,  1185-1188; 
6  Dec.  Dig.  Crim.  Law,  sec.  521.) 

In  the  present  case  the  court  was  plainly  in  error  in  ruling  that  the  testimony  of  the 
accused  before  the  coroner's  inquest  was  inadmissible,  there  being  nothing  whatever 
to  show  that  such  testimony  was  given  by  the  accused  under  compulsion,  and  the 
only  ground  for  the  court's  ruling  appearing  to  be  statements  made  by  counsel  for 
the  accused  in  urging,  without  any  evidence  to  support  his  remarks,  "that  the 
accused  was  there  under  process;  he  was  compelled  to  testify.  He  was  compelled  to 
give  testimony  perhaps  prejudicial  to  himself."  C.  M.  O.  5, 1913, 9, 10. 

11.  Corpus  delicti.    See  CORPUS  DELICTI. 

12.  Court  of  Inquiry — The  department  held  that  a  court  was  in  error  when  it  held  that  a 

statement  made  before  a  court  of  inquiry  in  the  nature  of  a  confession  is  inadmissible 
in  a  later  trial  because  proper  and  timely  warning  was  not  given  the  accused  when  his 
testimony  was  taken  before  the  court  of  inquiry.  C.  M.  0. 12, 1904, 4;  File  2C251- 12895. 

13.  Custody  ol  officers.    See  CONFESSIONS,  4, 10,  22. 

14.  Entire  confession  should  be  admitted — Confessions  should  be  admitted  in  their 

entirety.    Introducing  excerpts  is  irregular.    C.  M.  O.  41, 1904,  2. 

15.  Examining  board — Statements  made  before  an  examining  board.    See  Section  1500 

R.  S.;  C.  M.  O.  43, 1906;  101, 1903, 10;  88, 1895;  G.  C.  M.  Rec.  11279;  7913;  24258. 

16.  Hope  that  charge  would  be  withdrawn — If  an  officer  admits  to  his  superior  officer 

in  a  written  statement  that  he  committed  a  military  offense  and  promised  not  to 
repeat  the  offense  again,  under  the  well-grounded  hope  that  a  charge  which  had  been 
preferred  against  him  would  be  withdrawn,  the  admission  thus  made,  in  case  he  were 
actually  brought  to  trial  upon  such  charge,  would  not  properly  be  received  in  evidence 
over  an  objection.  C.  M.  O.32, 1908.  See  also  CONFESSIONS,  18. 

17.  Order— A  confession  made  by  the  accused  after  orders  to  do  so  from  an  officer  in  au- 

thority over  him  can  not  be  considered  as  voluntary.  It  w  as  so  held  under  the  word- 
ing of  a  statement  by  the  accused,  as  follows:  "  Having  been  called  upon  for  a  statement 
*  *  *  I  make  this  statement  ireely  of  my  own  accord. "  Such  practice  was  held 
to  be  contrary  to  the  spirit  of  the  law  and  a  conviction  depending  upon  such  evi- 
dence (confession)  would  beillegal.  C.  M.  0. 47, 1910, 6. 

18.  Same — An  example  of  a  confession  held  to  have  been  involuntary  is  given  in  General 

Court-Martial  Order  No.  47, 1910.  page  6,  in  which  the  executive  officer  addressed  the 
following  order  to  the  officer  of  the  day:  "  Make  these  two  men  write  full  statements  as 
to  what  they  did  with  their  uniforms."  C.  M.  O.  7, 1914, 14.  See  also  C.  M.  O.  32, 
1908  where  accused  was  ordered  to  submit  a  statement  and  the  case  was  disapproved. 

19.  Preliminary  examination—"  The  court  is  allowed  to  take  testimony  to  ascertain 

the  absolute  conditions  under  which  a  confession  was  made  in  order  to  decide 
whether  it  was  a  voluntary  act  of  the  accused. "  (Forms  of  Procedure,  1910,  p.  138. 
See  also  C.  M.  0 .5, 1913,  p.  9. )  That  is,  it  is  proper  for  the  court  to  allow  a  preliminary 
examination  of  witnesses,  before  the  contents  of  the  confession  are  divulged  to  decide 
whether  or  not  theconfession  was  voluntary  and  thus  admissible.  (C.  M.  0. 10, 1915, 
p.  4.)  Where  the  facts  shown  by  this  preliminary  examination  are  conflicting  the 
question  as  to  whether  the  confession  was  voluntary  is  to  be  determined  by  the  court 
whose  decision  in  general  will  not  be  disturbed.  (C.  M.  O.  10,  1915,  p.  5;  Index- 
Digest,  1914,  p.  10.)  C.  M.  O.  3, 1916,  fr-7. 

In  a  case  where  a  general  court-martial  refused  to  permit  the  defense  to  cross-exam- 
ine a  witness  who  was  on  the  stand  for  the  purpose  of  introducing  a  confession  to  show 
that  it  was  involuntary,  the  department  stated:  "  Before  a  confession  or  statement  in 
the  nature  of  a  confession  may  oe  introduced  in  evidence  it  is  necessary  to  show  the 
circumstances  under  which  such  confession  or  statement  was  made  in  order  that  the 
court  may  determine  whether  or  not  it  was  voluntary.  To  this  end  the  judge  advo- 
cate, when  introducing  such  a  statement,  should  conduct  a  preliminary  examination 
of  the  witnesses  in  order  to  show  the  surrounding  circumstances.  Counsel  for  the 
accused  is  then  entitled  to  cross-examine  the  witness  on  the  same  point,  and  it  is  error 
to  refuse  to  permit  him  to  do  so."  (C.  M.  0. 5, 1913,9;  seealsolZCyc.  4S1.)  Itfollows 
that  unless  a  confession  is  shown  to  be  voluntary  it  is  incompetent  and  inadmissable 
as  evidence.  (C.  M.  O.  32, 1908,  2;  17, 1910,  4;  26,  1910,  9;  5, 1913,  9;  7, 1914, 14.) 

In  a  recent  case  the  judge  advocate  offered  in  evidence  an  alleged  confession  signed 
by  the  accused,  after  examining  a  witness  for  the  prosecution,  before  whom  such  con- 
fession was  made  concerning  circumstances  bearing  on  its  voluntary  character. 
Counsel  for  the  accused  asked  permission,  which  was  properly  granted  by  the  court, 
to  cross-examine  the  witness  in  question  before^  the  alleged  confession  was  received 
in  evidence  "only  on  that  one  point  of  determining  whether  any  confession  that  may 


1 04  CONFESSIONS. 

be  testified  to  was  voluntarily  made  by  the  accused."  Counsel  for  the  accused  then 
stated  that  before  the  confession  should  be  admitted  "the  accused  would  like  to  testify 
and  will  himself  ask  for  the  privilege  and  will  volunteer  to  testify  at  this  time  on  the 
single  issue  of  what  was  said  to  him  as  leading  up  to  statements  which  he  subsequently 
made"  on  the  occasion  of  the  alleged  confession.  Thereupon,  the  desired  permission 
having  been  granted  by  the  court,  the  accused  was  at  his  own  request  duly  sworn  as 
a  witness  in  his  own  behalf,  and  testified  on  the  subject.  As  a  result  of  this  testimony 
there  was  a  conflict  in  the  evidence  as  to  the  circumstances  under  which  the  confession 
was  made.  The  defense  objected  "to  the  admission  of  the  confession  in  evidence,  and 
the  court  permitted  it  to  be  introduced  over  such  objection.  The  department  held 
that  where  facts  shown  by  preliminary  examination  are  conflicting  the  question  as  to 
whether  the  confession  was  voluntary  is  to  be  determined  by  the  court  whose  decision 
will  not  be  disturbed.  (G.  C.  M.  Rec.  No.  29422;  File  26251-92.VO,  Set:.  Navy,  Nov.  24, 
1914.)  C.  M.  O.  10.  1915.  5. 

20.  Same — In  a  case  where  there  was  a  conflict  in  the  evidence  given  by  the  witnesses  for  the 

prosecution  and  that  given  by  the  defense  as  to  the  circumstances  under  which  a  con- 
fession was  made,  the  department  stated:  "  Under  these  circumstances  it  wasforthe 
court  to  decade  which  of  the  witnesses  it  would  believe,  and  what  were  the  actual 
facts  of  the  case.  The  department  has  repeatedly  held  that  when  the  facts  are  in 
dispute,  and  there  is  such  a  conflict  in  the  evidence  that  reasonable  men  might  differ 
as  to  the  conclusions  to  be  drawn  therefrom,  the  decision  of  the  court  on  the  subject 
should  not  be  disturbed."  (C.  M.  O.4, 1913,  57;  24,1914,7;  29, 1914, 9;  G.  C.  M.  Rec. 
No.  29422;  File  26251-9280.)  Therefore,  where  the  facts  shown  by  the  preliminary 
examination  are  conflicting  the  question  whether  the  confession  was  voluntary  is  to 
be  determined  by  the  court  whose  decision  will  not  in  general  be  disturbed.  G .  C.  M. 
Rec.  No.  29422;  File 26251-9280;  C.  M.  0.51,1914,3. 

21.  Reason  behind  the  rule  of  admisslblllty — It  is  a  rule  of  evidence  that  in  order  for  a 

confession  to  be  admissible  it  must  have  been  voluntary.  The  phrase  "  voluntary  " 
is  so  "indefinite  that  it  is  of  little  service  in  itself."  (1  Greenleaf,  p.  355,  sec.219.) 

Thereason  behind  thedoctrine  "and  the  controlling  inquiry  is,  whethertheinduee- 
ment  held  out  to  the  prisoner  was  calculated  to  make  his  confession  an  untrue  one. " 
(1  Greenleaf,  p.  354,  sec.  219.) 

Rice  on  .Evidence,  vol.  3,  page  489,  states  that  the  "confessions  of  the  prisonerare 
receivable  in  evidence,  upon  the  presumption  that  a  person  will  not  make  an  untrue 
statement  against  his  own  interest." 

The  underlying  principle  is  that  the  confession  "  shall  not  be  induced  by  improper 
threats  or  promises,  because  under  such  circumstances  the  party  may  have  been 
influenced  to  say  that  which  is  not  true,  and  the  supposed  confession  can  not  be  safely 
acted  on."  (1  Greenleafj  p.  354,  sec.219.) 

.  "  The  reason  for  excluding  the  confession  is,  to  repeat,  not  that  the  law  affirmatively 
presumes  it  to  be  untrue,  but  that  its  truthfulness  is  so  uncertain  as  to  render  it  unsafe 
for  the  jury.  Therefore,  as  often  said,  the  real  reason  in  every  case  is,  whether  or  not 
the  confessing  mind  was  influenced  in  a  way  to  create  doubt  of  the  truth  of  the  con- 
fession. (2  Bishop's  New  Crim.  Proc.,  p.  1049.) 

"  The  doctrine  in  its  essence  and  divested  of  its  technicalities  is  that  a  defendant's 
confession  is  admissible  in  evidence  against  him  if  made  freely  and  without  hope  of 
benefit  to  his  cause;  otherwise  it  is  rejected,  since  its  purpose  may  have  been  to  secure 
such  benefit  rather  than  to  disclose  the  truth."  (2  Bishop's  New  Crim.  Proc.,  p. 
1043.)  C.  M.  0. 3  1916,  7. 

22.  Silence  as  a  confession — "Where,  on  being  accused  of  crime,  with  full  liberty  to 

speak  one  remains  silent,  his  failure  to  reply  or  to  deny  is  relevant  as  tending  to  show 
his  guilt.  Hissilence  alone,  however,  raises  no  legal  presumption  of  guilt.  Its  effect  is 
for  the  jury,  and  from  it,  in  connection  with  other  facts  and^circumstances,  they  may 
infer  that  he  is  guilty."  (12  Cyc.421.) 

A  confession  may  in  some  cases  be  collected  or  inferred  from  the  conduct  and  de- 
meanor of  a  prisoner  on  hearing  a  statement  affecting  himself.  "As  such  state- 
ments frequently  contain  much  hearsay  and  other  objectionable  evidence,  and  as  the 
demeanor  of  a  person  upon  hearing  a  criminal  charge  against  himself  is  liable  to  great 
misconstruction,  evidence  of  this  description  oughtto  be regarded  with  muchcaution." 
(Ph.  &  Arn.  405, 10th ed.,  quoted  in  Roscoe's  Criminal  Evidence,  pp.  53,  54.) 

In  any  event,  in  order  that  silence  may  be  received  in  evidence  against  an  accused 
as  tantamount  to  an  admission  of  charges  against  him,  it  must  be  shown  (a)  "either 
that  the  accused  did  in  fact  hear  what  was  said,  or  was  in  a  position  to  hear";  (6) 
that  "the  statements  were  such  as  to  call  for  a  reply  by  him";  and  (c)  "it  must  also 


CONFESSIONS.  105 

appear  affirmatively  that  he  had  an  opportunity  or  right  under  the  circumstances 
or  the  case  to  deny  the  truthfulness  of  the  charges  made  against  him. "  (12Cyc.,421. 
422.) 

According  to  many  authorities  ''the  fact  that  one  is  under  arrest  and  in  the  custody 
of  an  officer  when  he  is  silent  under  accusation  prevents  his  silence  or  the  statements 
themselves  from  being  admissible  against  him,  on  the  ground  that  under  such  circum- 
stances he  is  not  called  upon  to  speak. "  (12  Cyc.,  422.)  C.  M.  O.  7, 1911,  7-8. 

23.  Sodomy.    See  File  26251-7121:3.    See  also  CONFESSIONS,  7. 

24.  Statement  of   accused — When   offense  is  being  investigated,  a  statement  of  an 

accused  enlisted  man,  charged  with  desertion,  made  by  him  before  his  commanding 
officer  when  his  offense  is  being  investigated  at  the  mast,  is  uniformly  admitted  in 
evidence  when  he  is  tried  for  the  offense.  C.  M.  O.  43, 1906,  2.  See  also  BOARDS  OF 
INVESTIGATION,  7;  DESERTION,  123, 125. 

25.  Voluntary — A  confession  must  be  voluntary  to  be  admissible.    See  CONFESSIONS,  2, 

5,  6,  21. 

26.  Warning — It  is  not  necessary  to  the  admissibility  of  any  confession  to  whomsoever 

it  may  have  been  made  that  it  would  appear  that  the  accused  was  warned  that  what 
he  said  would  be  used  against  him.  On  the  contrary,  if  the  confession  was  voluntary, 
it  is  sufficient,  though  it  should  appear  that  he  was  not  so  warned.  C.  M.  O.  31, 
1911,  5;  7, 1914, 15;  3,  1916,  7.  See  also  C.  M.  O.  12,  1904,  4;  14,  1910,  11-12;  G.  C.  M. 
Rec.  21336;  21996;  24224. 

27.  Same — With  respect  to  whether  a  warning  is  necessary  in  the  case  of  an  accused  person, 

the  Supreme  Court,  in  Wilson  v.  The  United  States  (162  U.  8.,  613.  623),  said: 

"And  it  is  laid  down  that  it  is  not  essential  to  the  admissibility  of  a  confession  that 
it  should  appear  that  the  person  was  warned  that  what  he  said  would  be  used  against 
him,  but,  on  the  contrary,  if  the  confession  was  voluntary,  it  is  sufficient  though  it 
appear  that  he  was  not  so  warned.    (Joy  on  Confessions,  45,  48,  and  cases  cited.) " 
Likewise,  Greenleaf,  in  his  work  on  Evidence  (15th  ed.,  v.  1,  sec.  229),  says: 
"  Neither  is  it  necessary  to  the  admissibility  of  any  confession  to  whomsoever  it  may 
have  been  made  that  it  should  appear  that  the  prisoner  was  warned  that  what  he  said 
would  be  used  against  him.    On  the  contrary,  if  the  confession  was  voluntary,  it  is 
sufficient,  though  it  should  appear  that  he  was  not  so  warned." 
It  is  also  stated  in  the  Cyclopedia  of  Law  and  Procedure  (vol.  12,  p.  463)  that — 
"The  fact  that  a  voluntary  confession  is  made  without  the  accused  having  been 
cautioned  or  warned  that  it  might  be  used  against  him  docs  not  render  it  incompe- 
tent unless  a  statute  invalidates  a  confession  made  where  the  accused  is  not  first 
.     cautioned." 

As  there  is  no  statute  which  is  applicable  to  this  matter  before  naval  courts- 
martial,  the  italicized  words  indicate  the  rule  governing  the  case. 

With  respect  to  the  first  point,  therefore,  it  is  evident  that  the  statement  or  confes- 
sion of  the  accused  was  admissible  in  evidence  against  him,  even  though  he  had  not 
been  warned  that  such  statements  might  be  used  against  him.  And  it  may  be  re- 
garded, in  addition,  that  there  is  nothing  to  show  that  it  was  obtained  by  any  in- 
ducement or-  threat;  also,  that  its  admission  was  not  objected  to  by  the  accused. 
C.  M.  O.  31,  1911,  5,  6. 

CONFIDENTIAL.   See  CONFIDENTIAL  PUBLICATIONS;  MEDICAL  RECORDS,  1, 3,  4, 5;  OATHS, 
20,  47. 

CONFIDENTIAL  PUBLICATIONS. 

1.  Battle  signal  book — Officers  tried  by  general  court-martial  for  loss  of.    C.  M.  O.  7. 

1916;  8,  1916. 

2.  Document — Officer  tried  by  general  court-martial  for  loss  of.    C.  M.  O.  20,  1909. 

3.  Tactical  signal  book— Officer  tried  by  general  court-martial  for  loss  of.    C.  M.  O. 

12, 1910. 

CONFINEMENT. 

1.  Antedating— The  department  held  that  the  action  of  a  convening  authority  was  in 
error  when  it  approved  a  sentence  involving  confinement  to  take  effect  from  a  prior 
date.  This  was  improper;  for,  whereas  it  is  within  the  province  of  the  convening 
authority  to  mitigate  sentences  of  general  courts-martial  convened  by  him,  and  he 
could  in  this  case,  by  express  terms,  have  reduced  the  period  of  confinement  adjudged 
had  he  so  desired,  his  action  in  making  this  confinement  date  from  a  previous  day 
was  irregular  and  contrary  to  the  provisions  of  Navy  Regulations,  1909,  R-1784  (2) 
[Navy  Regulations,  1913,  R-818  (2)].  C.  M.  O.  49, 1910, 15;  21, 1914, 4.  See  also  ANTE- 


106  CONFINEMENT. 

DATING,  3;  CONFINEMENT,  9;  C.  M.  O.  90, 1902.  But  see  C.  M.  0. 13, 1910,  where  a  fleet 
convening  authority  antedated  an  officer's  sentence  involving  restriction. 

2.  Bad-conduct  discharge — And  solitary  confinement  should  not  be  both  adjudged  in 

the  same  summary  court-martial  sentence.  File  26287-3483,  Sec.  Navy,  July  17, 
1916. 

3.  Begins.    See  ANTEDATING,  3;  CONFINEMENT,  1, 9. 

4.  Bread  and  water.    See  BREAD  AND  WATER. 

5.  Certificate  of  medical  officer— Whenever  any  person  is  sentenced  for  a  period  exceed- 

ing 10  days  to  confinement  on  diminished  rations,  or  on  bread  and  water,  there  must 
appear  on  the  record  of  the  proceedings  the  certificate  of  the  senior  medical  officer 
under  the  immediate  jurisdiction  of  the  convening  authority,  to  the  effect  that  such 
sentence  will  not  be  seriously  injurious  to  the  health  of  the  prisoner.  (A.  G.  N.  33; 
R-33.)  G.  0. 196,  Dec.  15, 1875;  U.  S.  Navy  Reg.  Cir.  No.  19,  June  4,  1879;  C.  M.  O. 
33,  1909,  2;  49,  1910,  15;  G.  C.  M.  Rec.  24595. 

6.  Civil  courts — A  man  who  has  been  sentenced  by  a  Cuban  civil  court  to  confinement 

for  four  months  can  not  be  confined  on  board  a  naval  vessel  for  such  length  of  time 
as  punishment  for  the  offense  for  which  he  was  sentenced,  since  the  authority  of  the 
commanding  officer  of  a  naval  vessel  to  confine  a  man  under  sentence  not  imposed 
in  pursuance  of  any  statute  or  regulation  is  questionable.  File  5128-04. 

7.  Same — Pay — An  enlisted  man  of  the  Navy  imprisoned  by  civil  authorities  for  an 

offense,  convicted  and  withdrawn  from  the  service  of  the  United  States,  is  not  enti- 
tled to  pay  during  the  term  of  confinement  (2  Comp.  Dec.  584;  19  comp.  Dec.  226). 
But  contra  if  found  "not  guilty."  Arrest  and  confinement  by  civil  authorities  of  a 
man  for  manslaughter,  no  bar  to  receipt  of  pay,  if  acquitted  by  the  civil  court.  File 
2433-96.  See  alsoC.  M.  O.  5,  1912,  4-14;  14,  1914,  4-6;  29,  1914,  10;  File  3811-04;  609-04. 
See  in  this  connection  Carrington  v.  U.  S.  (46  Ct.  Cls.,  279.) 

8.  Convening  authority— If  the  convening  authority,  after  reviewing  the  proceedings  of 

a  summary  court-martial,  deem  that  the  ends  of  justice  will  be  subserved  by  so  doing, 
he  is  authorized  to  mitigate  a  sentence  of  "confinement  not  exceeding  two  months" 
to  "confinement  to  the  limits  of  the  garrison,"  but  no  such  power  is  given  to  the 
court  itself,  which  must  strictly  adhere  to  the  statutory  form  of  sentence.  C.  M.  O. 
2, 1912, 11.  See  also  CONFINEMENT,  41;  RESTRICTION  1,  4. 

9.  Date — The  term  of  confinement  shall  take  effect  from  the  date  of  approval  of  the  sen- 

tence. Should  an  unusual  time  elapse  between  the  date  of  confinement  of  the  accused 
for  trial  and  the  date  of  approval  of  the  sentence,  this  period  may  be  considered  by  the 
convening  authority  to  acting  upon  the  case.  Should  the  sentence  be  to  solitary 
confinement,  or  to  confinemept  on  reduced  rations,  the  time  of  such  conditioned 
confinement  must  be  fulfilled  unless  such  provision  of  the  sentence  be  remitted  or 
mitigated  by  the  convening  or  higher  authority.  See  ANTEDATING,  3;  CONFINE- 
MENT, 1. 

10.  Deck  courts — Are  not  authorized  to  adjudge  confinement  or  loss  of  pay  to  excess  of 

20  days.    C.  M.  O.  24, 1909,  3;  1,  1914,  5.    See  also  DECK  COURTS,  8. 

11.  Same— It  is  illegal  for  a  deck  court  to  adjudge  a  sentence  which  includes  both  solitary 

confinement  on  bread  and  water,  and  reduction  in  rating.  Where  this  was  done  the 
department  set  aside  that  part  of  the  sentence  relating  to  reduction  in  rating  in  view 
of  the  fact  that  when  the  record  of  proceedings  was  received  in  the  department  the 
solitary  confinement  had  to  all  probability  been  carried  into  execution.  C.  M.  O.  33, 
1914, 5-6.  See  also  DECK  COURTS,  49. 

12.  Definition— "Confinement,"  as  prescribed  by  A.  G.  N.  30,  should  be  in  the  nature  of 

an  imprisonment. 

A  restraint  which  includes  the  placing  of  a  prisoner  by  himself  where  he  can  com- 
municate with  no  unauthorized  persons  and  not  with  fellow  prisoners,  is  solitary  con- 
finement, and  is  not  properly  simple  confinement. 

Mere  restriction  to  the  limits  of  a  ship  is  not  regarded  as  being  a  form  of  confinement 
withto  the  meaning  of  A.  G.  N.  30. 

As  facilities  on  board  ships  at  shore  stations,  etc.,  vary  for  the  execution  of  sen- 
tences, no  precise  rule  as  to  how  "confinement"  shall  be  executed  can  be  prescribed. 

A.  G.  N.  30  provides  for  three  kinds  of  physical  restraint:  (1)  solitary  confinement, 
(2)  confinement,  (3)  deprivation  of  liberty  on  shore  on  foreign  station.  File  20806-79, 
J.  A.  G.,  Feb.  6, 1912;  C.  M.  O.  23,  1912,  5.  See  also  SUMMARY  COURTS-MARTIAL,  92. 

13.  Deprivation  of  liberty  on  shore  on  foreign  station — May  not  be  added  to  confine- 

ment.   C.  M.  O.  33,  1914,  5. 

14.  Discharge,  without — Sentences  involving  confinement  at  hard  labor  with  correspond- 

ing forfeiture  of  pay,  without  discharge,  should  adjudge  forfeiture  of  only  "pay  that 
may  become  due  nim  during  said  confinement."  C.  M.  O.  21,  1912,  4. 


CONFINEMENT.  107 

15.  Garrison— Confinement  to  limits  of  garrison.    See  CONFINEMENT,  8, 19, 41. 

16.  Hard  labor— Sentences  of  general  courts-martial  including  confinement  shall  contain  a 

provision  requiring  that  the  person  sentenced  shall  perform  hard  labor  while  so  con- 
fined. C.  M.  O.  23,  1912,  4;  46, 1902, 1;  47,  1910,  4.  See  also  G.  C.  M.  Rec.  21161; 
22745;  HARD  LABOR,  1;  K-900  (8). 

17.  Same — All  sentences  of  general  courts-martial  involving  confinement  shall  be  at  hard 

labor,  instead  of  involving  the  performance  of  extra  police  duties..  C.  M.  O.  6, 1909,  2; 
42, 1909,  6;  47, 1910.  4.  See  also  HARD  LABOR,  2. 

18.  Same— Officers  confined  at  hard  labor.    C.  M.  O.  173, 1902;  50, 1914.    See  also  HARD 

LABOR,  5. 

19.  Limits  of  garrison— A  summary  court-martial  has  no  power  to  adjudge  a  sentence 

which  confines  a  man  to  the  limits  of  the  garrison.  C.  M.  O.  2,  1912,  11.  See  also 
CONFINEMENT,  8,  41;  RESTRICTION,  1.  3. 

20.  Limits  of  snip,  post,  or  station — Where  restriction  to  the  limits  of  the  ship,  post,  or 

station  is  contemplated  by  a  general  court-martial  rather  than  close  confinement, 
the  word  "restricted  "rather  than  "confined  "should  boused  in  the  sentence  and  the 
proper  form  is  "to  be  restricted  to  the  limits  of  the  post,  station,  or  ship,  "etc.  (C.  M. 
O.  23.1912,4.)  C.  M.  O.  6,  1882;  6. 1883,2;  2,1909;  17,1912, 1;  23,1912,  4;  16,1914,con- 
•  tain  the  wrong  phraseology,  and  C.  M.  0. 95, 1893,  3  and  21,  1914,  contain  the  correct 
wording.  See  G.  O.  44,  Dec.  7,  1.864.  where  an  officer  was  sentenced  to  be  confined 
in  a  place  "other  than  a  prison,"  and  a  navy  yard  was  designated.  See  also  C.  M.  O. 
12, 1899,  3;  118,  1905. 

21.  Limits  of  the  marine  barracks— Officer's  sentence.    C.  M.  O.  38, 1886. 

22.  Limits  of  the  U.  S.  S.  "  Richmond"— Sailmaker.    C.  M.  O.  53, 1888. 

23.  Medical  officer's  certificate— Confinement  over  10  days  on  diminished  rations,  etc. 

See  CONFINEMENT,  5. 

24.  Midshipman — For  "brutal  or  cruel' 'hazing.    See  HAZING,  6. 

25.  Officers — Sentences  which  adjudge  confinement  for  officers  hi  addition  to  dismissal. 

Cl  M.  O.  27, 1887, 16;  34, 1909;  35, 1909;  17, 1911;  29,1911;33, 1911;  29,1913;  31, 1913;  35. 
1913;  60, 1914. 

26.  Same— Confined  at  hard  labor.    See  CONFINEMENT,  18. 

27.  Pay — Sentences  involving  confinement  at  hard  labor  not  desirable  without  forfeiture 

of  pay.    C.  M.  O.  1, 1913,  3;  5, 1914,  6.    See  also  C.  M.  O.  100, 1894,  2. 

28.  Same — Arrest  and  acquittal  by  civil  authorities.    See  CONFINEMENT,  7. 

29.  Same — Forfeiture  of  pay  should  agree  with  period  of  confinement.    See  CONFINEMENT, 

14,  32,  34. 

30.  Same— It  has  been  noticed  that  in  a  number  of  cases  tried  by  general  court-martial,  in 

which  the  men  were  sentenced  to  confinement  without  discharge,  the  sentences  failed 
to  include  the  usual  words  excepting  from  forfeiture  any  amount  that  may  be  due  the 
Government;  and  conseqently,  if  a  man  is  in  debt,  or  it  afterwards  develops  that  he  is 
in  debt,  to  the  Government,  this  indebtedness  can  not  be  wiped  out  until  after  he  has 
completed  his  term  of  imprisonment  and  is  restored  to  duty.  See  CONFINEMENT,  31. 

31.  Same — It  is  therefore  considered  by  the  department  desirable  that  all  sentences  which 

include  forfeiture  of  pay  contain  the  provision  that "  after  his  accrued  pay  (and  allow- 
ances— in  the  case  of  marines)  shall  have  discharged  his  indebtedness  to  the  United 
States  at  the  date  of  approval  of  this  sentence,  to  forfeit  all  pay,  etc."  C.  M.  O.  42, 
1909, 11;  31. 1910,  4;  19, 1911,  4;  1,  1913,  5. 

32.  Period  of— Forfeiture  of  pay  should  agree  with.    C.  M.  O.  42, 1909,  3;  49, 1910,  11;  14, 

1910, 7;  26, 1910, 8;  7, 1911,  4;  21, 1912,  4;  1, 1913, 3.    See  also  CONFINEMENT,  14,  34. 

33.  Post— Confinement  to  limits  of.    See  CONFINEMENT,  20. 

34.  Reduced  by  convening  authority— Where  the  convening  authority,  afterapproving 

the  proceedings,  findings,  and  sentence,  reduces  the  perio  d  of  confinement,  he  should 
make  a  corresponding  reduction  in  the  forfeiture  of  pay  and  allowances  adjudged,  for  if 
he  does  not  do  so  the  accused  will  forfeit  all  pay  and  allowances  during  confinement, 
except  S3  per  month  for  necessary  prison  expenses,  and  all  pay  and  allowances 
throughout  the  balance  of  his  enlistment.  The  department  took  this  action.  C.  M. 
O.  49, 1910, 11.  See  also  ALLOWANCES,  1. 

35.  Reduction  In  rating— May  not  be  a;lded  to  confinement.    See  CONFINEMENT,  11. 

36.  Restriction.    See  CONFINEMENT,  8, 20;    RESTRICTION,  1,  3. 

37.  Ship — Confinement  to  limits  of  ship.    See  CONFINEMENT,  20,  22. 

38.  Solitary.    See  CONFINEMENT,  9. 12;  SOLITARY  CONFINEMENT. 

39.  Starts — Date  of  approval  of  sentence.    See  ANTEDATING,  3;  CONFINEMENT,  1, 9. 

40.  Summary  courts-martial — Authorized  to  sentence  an  accused  to  "confinement  not 

exceeding  two  month-."  C.  M.  O.  33,  1914,  5.  See  also  SUMMARY  COURTS- 
MARTIAL,  86. 


108  CONFINEMENT. 

/ 

41.  Same — No  authority  exists  to  make  any  departure  in  the  sentence  from  the  express 

terms  of  the  statute,  either  as  to  form  or  extent  of  punishment.  A  sentence  "to 
be  confined  to  the  limits  of  the  garrison  for  two  (2)  months"  adjudged  by  a  summary 
court-martial  is  one  for  which  there  is  no  authority  of  law,  and  differs  from  "confine- 
ment not  exceeding  two  months"  authorized  by  Article  30,  A.  G.  N.  File  26287- 
1020,  J.  A.  G.,  Dec.  27, 1911.  See  also  CONFINEMENT,  8. 

42.  "Sweat  boxes"— Confinement  in.    See  SWEAT  BOXES,  1. 

43.  Term  of— Shall  take  effect  from  the  date  of  approval  of  sentence.    C.  M.  O.  49, 1010,  15; 

21, 1912, 4.    See  also  ANTEDATING,  3;  CONFINEMENT,  1,  9. 

44.  Torpedo  boat — Confinement  in  fireroom  of  a  torpedo  boat.    C.  M.  O.  92, 1905,  3. 

45.  Unusual.    C.  M.  0. 10, 1891. 

CONFLICTING  ORDERS.    C.  M.  O.  23, 1912,  5-6.    See  also  ORDERS,  3. 

CONGRESS. 

1.  Appeals  to — Death  gratuity  in  case  of  mother  who  had  not  been  "previously  desig- 

nated" by  deceased.    See  APPEALS,  2. 

2.  Samey- Where  officer  believes  his  date  of  commission  is  erroneous  and  matter  is  res 

judicata.    See  COMMISSIONS,  14. 

3.  Appointments  to  otfice — Congress  can  not  make.   See  APPOINTMENTS,  8. 

4.  Naval  Academy— Policy  of  Congress  to  leave  the  internal  administration  and  discipline 

largely  in  hands  of  the  officials  at  the  Naval  Academy.    See  HAZING,  6. 

5.  Regulations— Congress  annulling.    See  REGULATIONS,  NAVY,  3,  4,  20. 

0.  Same — Approval  of  regulations  by  Congress.    See  REGULATIONS,  NAVY,  5-9. 

7.  Retired  naval  officer — As  Member  of  Congress.    See  RETIRED  OFFICERS,  18,  72. 

8.  Thanks  of  Congress — A  resolution  tendering  the  thanks  of  Congress  to  Vice  Admiral 

David  G.  Farragut,  and  to  the  officers,  petty  officers,  seamen,  and  marines  under 
his  command,  for  their  gallantry  and  good  conduct  in  the  action  of  Mobile  Bay  on 
August  5, 1864.  G.  O.  73,  Feb.  17, 1866. 

9.  Same — Effect  of  vote  of  thanks  by  Congress  to  officers  of  the  Navy.    (R.  S.  1446, 1465, 

1508, 1509.)    See  File  27231-10,  J.  A.  G. 

10.  Same — Officers  of  the  Navy  and  other  persons  who  have  received  a  vote  of  thanks  by 

Congress  since  1878: 

Henry  M.  Stanley  (explorer),  Feb.  7, 1878.    (20  Stat.  247.) 
Khedive  of  Egypt,  Jan.  12, 1882.    (22  Stat.  377.) 
John  F.  Slater  (for  work  in  uplifting  emancipated  slaves),  Feb.  5, 1883.    (22  Stat. 

636.) 

Commodore  George  Dewey,  May  10. 1898.    (30  Stat.  742.) 
Hon.  John  Hay  (address  on  McKinley),  June  3, 1902.    (32  Stat.  1171.) 
Gen.  Horace  Porter  (for  re«overing  body  of  John  Paul  Jones),  May  9,  1906.    (:i4 

Stat.  829.)    File  27231-10,  J.  A.  G.,  1910. 

11.  Trial  of   a  naval  officer— Recommended  by  Congress— Part  of  the  department's 

action  in  a  general  court-martial  case  of  an  officer  read  as  follows — This  is  a  case  of 
extraordinary  and  unprecedented  character.  The  facts  set  forth  in  the  charge  and 
specifications  were  first  discovered  and  disclosed  by  a  congressional  investigation. 
The  investigation  and  discovery  of  similar  transactions  between  other  parties  led  to 
the  expulsion  of  one  Member  of  Congress,  the  resignation  of  others,  and  the  passage 
of  a  resolution  by  the  House  of  Representatives  requesting  the  Secretary  of  the  Navy 
to  convene  a  court-martial  for  the  trial  of  the  accused  for  "conduct  unbecoming  ah 
officer."  In  compliance  with  that  request  this  court  was  convened,  and  the  accused 
has  been  tried.  The  case  is,  therefore,  quite  unexampled  in  its  origin.  It  is  equally 
so  in  the  character  of  the  accusation  preferred.  The  purchase  and  sale  of  appoint- 
ments and  commissions  are  familiar  transactions  in  the  army  and  navy  of  other 
countries,  but  are  unknown  to  our  military  and  naval  service.  Here  every  military 
or  naval  nomination,  appointment,  or  commission  should  be  made  and  conferred  as 
a  reward  of  merit,  or  as  a  means  of  advancing  the  public  interests  by  opening  an 
honorable  career  to  pure  and  honorable  men. 

The  Navy  Department  would  not  represent  faithfully  the  tone  and  spirit  of  the 
Navy,  were  it  less  psompt  than  the  House  of  Representatives  to  inquire  into  every 
charge  of  venality  and  corruption,  or  less  certain,  when  discovered,  to  inflict  the 
prescribed  punishment  upon  the  offender. 

The  Secretary  of  the  Navy,  therefore,  as  requested  by  the  House  of  Representa- 
tives, convened  a  court  for  the  trial  of  the  accused  officer;  a  court  composed  of  intel- 
ligent and  distinguished  officers,  all  of  whom  were  senior  in  rank  to  the  accused 


CONGRESS.  109 

and,  having  produced  before  that  court  all  procurable  proof  in  support  of  the  charge 
and  specifications,  it  is  now  called  upon  to  revise  its  proceedings,  finding,  and  sen- 
tence. This  officer  was  found  guilty  and  sentenced  to  public  reprimand.  G.  O. 
156,  May  24, 1870.  See  also  NAVAL  ACADEMY,  12. 

12.  Witness— Under  the  act  of  February  16, 1909,  sections  11  and  12  (35  Stat.  621,  622),  a 
court  of  inquiry  is  empowered  to  subpoena  a  Representative  attending  a  session  of 
Congress,  but  if  he  refused  to  appear,  he  could' not  be  compelled  to  do  so  owing  to 
the  fact  that  under  Article  I,  section  6,  clause  1  of  the  Constitution  he  would  be  privi- 
leged from  arrest  for  the  misdemeanor  so  committed.  In  this  case  the  witness  stated 
he  would  appear  voluntarily  without  a  subpoena.  Accordingly  the  court  decided 
to  withdraw  the  subpoena,  and  the  Representative  thereupon  voluntarily  appeared 
and  testified.  Ct.  Inq.  Rec.  5203,  pp.  1281-1286, 1293-1294, 1339-1343, 1363-1365, 1422. 

CONSCIENCE  FUND. 

1.  Effect  and  status  of— Congress  has  never  authorized  the  "conscience  fund"  which  has 

been  created  by  the  Treasury  Department,  and  any  funds  contributed  thereto  proba- 
bly would  be  returnable  to  the  person  (or  his  heirs)  contributing  thereto,  although  it  is 
possible  that  the  courts  would  give  legal  effect  to  the  custom  of  receiving  funds,  such 
custom  having  continued  many  years,  not  being  in  conflict  with  any  express  pro- 
vision of  law  on  the  subject.  File  13673-1442:  1,  J.  A.  G.,  Jan.  13,  1912. 

2.  Pay— Officer  returning  pay  to  Treasury.    See  LEAVE  OF  ABSENCE,  6. 

CONSCRIPTION  OR  DRAFT. 

1.  Exemption  from— Of  former  enlisted  men.    File  13673-3141:2  July  14, 1916. 

CONSTITUTION  OF  THE  UNITED   STATES. 

1.  Amendments— Fifth  amendment.    C.  M.  O.  7, 1914,  6;  29, 1914, 10, 15. 

2.  Same— Sixth  amendment.    C.  M.  O.  49,  1910,  4;  55,  1910,  8;  15,  1910,  9;  17,  1910,  10; 

10. 1915,  6. 

3.  Article  I,  Sec.  9,  clause  8.    C.  M.  O.  35, 1915, 11. 

CONSTITUTIONAL  LAW.    See  also  JEOPAKDY,  FORMER,  5. 

1.  Accused — Privileges  and  immunities  of.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED. 

2.  Civil  authorities — Jurisdiction  of.    See  CIVIL  AUTHORITIES;  GENERAL  ORDER  No.  121, 

Sept.  17, 1914. 

3.  "Due  Process."    See  DEBTS,  18;  DUE  PROCESS  OF  LAW;  NAVAL  EXAMINING  BOARDS, 

10;  PROMOTION,  64. 

4.  Power  to  provide  a  Navy — The  power  to  formulate  Articles  for  the  Government  of  the 

Navy  and  punish  individual  officers  for  violation  thereof  is  conferred  upon  Congress  by 
Article  I,  section  8,  clause  14;  the  power  to  provide  what  persons  may  be  appointed 
or  enlisted  in  the  naval  service,  the  qualifications  they  must  possess,  and  the  total 
number  of  the  entire  force  is  conferred  by  the  clause  authorizing  Congress  "  to  provide 
and  maintain  a  Navy."  Statutes  passed  under  the  first  clause  mentioned  are  penal 
and  are  to  be  enforced  by  courts-martial;  those  passed  under  the  second  clause  are 
enacted  in  the  interest  of  the  Navy  at  large  and  are  to  be  administered  by  the  Presi- 
dent, either  alone  or  with  the  aid  of  examining  boards  or  such  other  {instrumentalities 
as  may  be  determined  upon  by  Congress.  Persons  excluded  from  appointment,  for 
lack  of  any  required  qualification — health,  age,  nationality,  height,  temperament,  or 
any  other  condition  that  Congress  might  see  fit  to  impose — are  not  being  punished 
under  penal  laws  for  their  failure  to  measure  up  to  the  necessary  requirements,  but  are 
merely  incidentally  affected  by  the  Government's  policy,  as  defined  by  Congress  in 
the  exercise  of  its  undoubted  right  to  say  who  shall  and  who  shall  not  be  appointed 
to  the  naval  service.  File  26260-1392,  June  29, 1911,  pp.  24.V-B5. 

"  The  discretion  of  the  President  as  commander  in  chief  of  the  Navy,  to  make  such 
dispositions  of  the  personnel  and  material  of  the  naval  service  as  to  "him  may  seem 
advisable,  is,  of  course,  subject  to  legislative  restrictions  by  Congress  enacted  under  Its 
constitutional  authority  to  'provide  and  maintain  a  navy.'"  File  4670-47,  J.  A.  G., 
Nov.  23, 1910,  p.  5. 

5.  State  Interference — The  principle  that  no  State  has  the  right  to  interfere  with  the 

instrumentalities  of  the  Federal  Government  has  been  recognized  from  the  earliest 
days  of  our  Governmert.  File  6769-21,  J.  A.  G.,  July  19, 1911;  26524-54,  Feb.  12, 1914. 
See  also  JURISDICTION,  118. 

6.  Same— Inspection  of  battleships.    See  File  6118-3,  Nov.  22, 1907. 

7.  Same—  Quarantine  charges.    See  File  3983,  Mar.  5, 1906;  6118-2,  Dec.  29,  1906;  25  Op. 

Atty.  Gen.  234.    But  see  13  Comp.  Dec.  672. 

8.  Same— Exemption  of  civil  employees  from  jury  duty.    See  File  21090-3,  Sept.  3,  1908; 

20  Op.  Atty.  Gen.  618.    See  also  JURY,  1. 


110  CONSTRUCTIVE   PARDON. 

CONSTITUTIONAL  RIGHTS   OF  ACCUSED. 

1.  Counsel — Article  VI  of  the  amendments  to  the  Constitution  provides  that  "in  all 

criminal  prosecutions"  the  accused  shall  "have  the  assistance  of  counsel  for  his 
defense."  Though  the  reference  here  is  to  prosecutions  before  criminal  courts  of  the 
United  States,  naval  courts,  though  not  bound  by  the  letter,  are  within  the  spirit  of 
the  provision. 

Therefore,  where  an  accused  goes  on  record  as  being  desirous  of  having  the  assistance 
of  counsel  in  conducting  his  defense,  and  is  denied  that  right,  except  where  it  is 
impracticable  to  obtain  counsel,  such  denial  constitutes  a  fatal  irregularity,  and  thn 
improper  procedure  of  designating  the  judge  advocate  to  act  in  that  capacity  does  not 
offset  this  irregularity  nor  fulfill  the  requirements  of  the  law.  C.  M.  O.  49,  1910,  14; 
55, 1910.  8. 

2.  Crimination.    See  SELF  INCRIMINATION. 

3.  Cross-examination — Of  witnesses   against  him.    See  CONSTITUTIONAL  RIGHTS  OF 

ACCUSED,  16. 

4.  Cruel  and  unusual  punishment — "  Sentences  must  be  neither  cruel  or  unusual,  and 

must  be  in  accordance  with  the  common  law  of  the  land  and  customs  of  war  in  like 
cases."  (R-815.)  "Offenses  not  provided  for  herein  [Limitation  of  Punishment] 
remain  punishable  as  authorized  by  the  Articles  for  the  Government  of  the  Navy,  as 
amended  by  the  acts  of  May  13, 1908;  February  16,  1909;"  Aug.  29,  1916.  (R-900  (2.) 

5.  Double  Jeopardy.    See  JEOPARDY,  FORMER. 

6.  Due  process  ot  law.    See  DEBTS,  18;  DUE  PROCESS  OF  LAW;  PROMOTION,  64. 

7.  Jeopardy.   See  JEOPARDY,  FORMER. 

8.  Jury  trial— Not  required.    See  JURY,  6. 

9.  Offenses  defined,  etc. — In  short,  the  whole  proceeding  would  be  repugnant  to  the  con- 

stitutional safeguards,  the  spirit  of  which  is  that  offenses  and  their  punishment  should 
be  denned  and  fixed  in  advance  of  the  doing  of  the  wrongful  act.  C.  M.  O.  21, 1910,  9. 

10.  Presence  during  trial.    See  ACCUSED,  1-9. 

11.  Presentment  and  Indictment  by  grand  Jury.    See  CONSTITUTIONAL  RIGHTS  OF 

12.  Public  trial.   ~See  COURT,  127;  PUBLIC  TRIAL. 

13.  Safeguards — The  contention  that  the  constitutional  safeguards  and  limitations  apply 

to  officers  and  enlisted  men  of  the  Navy  with  the  single  exception  of  presentment  and 
indictment  by  grand  jury  is  fully  refuted  in  Ex  parte  Milligun  (4  Wall.  2,  137.)  File 
26260-1392,  697,  J.  A.  G.,  June  29, 1911,  p.  29. 

14.  Self-lncrlminatlon.    See  SELF  INCRIMINATION. 

15.  Speedy  trial.    See  COURT,  127;  SPEEDY  TRIALS. 

16.  Witnesses— Confrontation  and  cross-examination— It  is  the  right  of  an  accused  to  be 

confronted  by  witnesses  against  him,  and  afforded  an  opportunity  to  cross-examine 
them  upon  the  evidence  they  may  give  in  the  case.  C.  M.  O.  47, 1910, 9;  49, 1910, 9, 
10;  15, 1910, 9;  17, 1910, 12;  21,  1910,  16.  See  also  C.  M.  O.  224, 1902;  37, 1909,  8,  9;  47, 
1910, 65, 1916, 5;  FALSE  SWEARING,  5;  DEPOSITIONS,  9. 

17.  Same— Compulsory  process  of  obtaining— Article  6  of  the  amendments  to  the  Consti- 

tution of  the  United  States  provides  that  an  accused,  in  all  criminal  prosecutions, 
shall  enjoy  the  right  to  have  compulsory  process  for  obtaining  witnesses  in  his  favor. 
The  propriety  of  this  provision  is  clearly  manifest  and  is  beyond  question.  (Story 
on  the  Constitution,  5th  ed.,  vol.  2, 572, 573.) 

Although  the  reference  in  the  sixth  amendment  is  to  criminal  courts  of  the  United 
States  only,  military  courts,  though  not  bound  by  the  letter,  are  within  the  spirit 
of  the  provision.  Therefore,  when  an  accused  goes  on  record  as  desiring  the  attend- 
ance ofcertain  witnesses  and  requests  a  postponement  of  the  trial  to  permit  him  to 
secure  them,  unless  it  be  shown  to  have  been  impracticable  to  accede  to  that  request 
and  secure  the  desired  witnesses,  the  noncompliance  with  this  provision  would  con- 
stitute a  grave  error.  C.  M.  0. 17,1910,9.  See  also  C.M.  0.47,1910,  5-6;  49, 1910, 10. 

The  act  of  Congress  approved  February  16, 1909  (35  Stat.  621, 622),  provides  that  a 
naval  court-martial  or  court  of  inquiry  shall  have  power  to  issue  like  process  to  compel 
witnesses  to  appear  and  testify  which  United  States  courts  of  criminal  jurisdiction 
within  the  State,  Territory,  or  district  where  such  naval  court  shall  be  ordered  to  sit 
may  lawfully  issue. 

CONSTRUCTION  OF  STATUTES.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETA- 
TION. 

CONSTRUCTIVE  PARDON.    See  DESERTION,  41;  PARDONS,  44. 


CONTRIBUTORY    NEGLIGENCE.  Ill 

CONSTRUCTIVE  SERVICE. 

1.  Officers — Six  years  constructive  service  for  the  purposes  of  precedence  was  allowed 
staff  officers  of  the  Navy  by  section  1486,  Revised  Statutes.  Five  years  constructive 
service  for  longevity  pay  was  allowed  officers  of  the  Navy  appointed  from  civil  life 
by  the  Navy  personnel  act  of  March  3,  1899.  (30  Stat.  1004.  )The  naval  appropria- 
tion act  of  March  4, 1913  (37  Stat.  899),  provided  that  the  above  provisions  of  section 
1486,  Revised  Statutes,  and  act,  March  3, 1899,  should  not  apply  to  any  person  enter- 
ing the  Navy  "after  the  passage  of  this  act."  File  11130-30:1,  J.  A.  G.,  May  4, 1916. 
Seealso  File  26255-95:1,  J.  A.  G.,  Apr.  6, 1910;  11130-9,  J.  A.  G.,  July  18, 1910. 

CONSULAR  OFFICERS. 

1.  Orders  to — Officers  of  the  naval  service.    See  DIPLOMATIC  OFFICERS,  2. 

2.  Retired  naval  officers — Appointment  as.    See  DIPLOMATIC  OFFICERS,  1,3;  RETIRED 

OFFICERS,  18,  26. 

CONTEMPT  OF  COURT. 

1.  Deck  courts— In  cases  of  contempt  the  court  shall  report  the  facts  to  the  convening 

authority  for  such  disciplinary  action  as  may  be  appropriate. 

2.  General  court-martial— During  the  progress  of  a  general  courl^martial  trial  the  ac- 

cused was  adjudged  guilty  of  contempt,  on  account  of  refusing  to  answer  a  certain 
question  propounded  by  the  court,  and  he  was  thereupon  sentenced  "to  be  impris- 
oned in  such  place  as  the  Secretary  of  the  Navy  may  designate  for  a  period  of  two 
months."  In  view,  however,  of  the  fact  that  there  was  a  doubt,  owing  to  the  con- 
flict of  authorities  on  the  subject,  as  to  whether  the  accused  in  the  case  was  properly 
found  guilty  of  contempt,  particularly  as  the  proceedings  subsequent  to  those  in  con- 
tempt seem  to  show  that  the  accused  misunderstood  the  import  of  the  question 
above  referred  to.  the  department  directed  that  the  sentence  imposed  for  contempt 
be  merged  in  that  awarded  for  the  offense  of  which  the  accused  was  convicted  under 
the  charge  preferred  against  him.  C.  M.  O.  234, 1902.  See  also  G.  C.  M.  Rec.  29475, 
p.  16;  Navy  Regulations,  1913,  R-42;  R-724. 

3.  Same — "Indecorous  and  disrespectful  conduct  of  the  accused  toward  the  court  while 

on  trial."    G.  0. 157,  May  24, 1870. 

4.  Officer  arrested  by  civil  authorities— An  officer  at  home  awaiting  orders  was  served 

with  subpoena  requiring  him  to  appear  in  a  civil  court,  and  disregarded  it.  He  was 
publicly  arrested  for  contempt  of  cpurt.  C.  M.  O.  24, 1888. 

5.  Summary  courts-martial — Are  without  power  to  punish  for  contempt  of  court. 

Where  a  summary  court-martial  punished  the  recorder  for  contempt,  the  department 
set  its  action  aside.  File  4549-02,  June  25,  1902;  22400,  1897.  See  also  File  1020-05, 
Mar.  8, 1905.  See  JEOPARDY,  FORMER,  3  (p.  297,  line  3),  FOR  CONTEMPT  OF  COURT 
OF  INQUIRY. 

6.  Same— In  cases  of  contempt  the  court  shall  report  the  facts  to  the  convening  authority 

for  such  disciplinary  action  as  may  be  appropriate. 

7.  Witnesses  —If  the  witness  refuses  to  answer  a  question,  the  judge  advocate  may  request 

the  court  to  require  the  witness  to  answer  on  the  ground  that  the  answer  would  not  tend 
to  criminate  him,  or  would  not  tend  to  decade  him,  or,  admitting  that  the  answer 
would  degrade  him,  that  the  question  which  the  witness  declined  to  answer  was  as  to 
a  subject  which  is  material  to  the  issue  on  trial  and  must  be  answered.  If  the  court 
sustains  the  judge  advocate,  the  witness  must  answer  or  be  in  contempt.  C.  M.  O. 
29,  1914, 13. 

CONTINUANCES. 

1.  Accused  requests — Court  should  grant  a  continuance  if  grounds  for  request  are  reason- 
able and  it  is  practicable  to  do  so.  C.  M.  0. 17, 1910, 10;  G.  C.  M.  Rec.  22012.  See  also 
ARMY,  13;  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17;  COUNSEL,  20;  COURT,  134; 
POSTPONEMENT;  TRIALS,  7. 

CONTINUING  OFFENSES. 

1.  Desertion— Is  a  continuing  offense.    C.  M.  O.  31,  1910,  5;  File  5256-04.    See  also  DE- 

SERTION, 35. 

2.  Fraudulent  enlistment— Is  not  a  continuing  offense.    C.  M.  O.  31, 1910,  5;  File  5256- 

04:  1551-04.    See  also  FRAUDULENT  ENLISTMENT,  20:  C.  M.  O.  17, 1916,  6,  line  36. 

CONTINUOUS-SERVICE  CERTIFICATE.    C.  M.  O.  42,  1915,  2;  FRAUDULENT  EN- 
LISTMENT, 36. 

CONTRIBUTORY  NEGLIGENCE.    See  MANSLAUGHTER,  11,12. 
50756°— 17 8 


112  CONVENING    AUTHORITY. 

CONVENING  AUTHORITY. 

1.  Accused — Right  of  accused  to  a  copy  of  action  of.    See  RECORD  OF  PROCEEDINGS,  32. 

2.  Action  of — Importance  of— Where  a  convening  authority  of  a  summary  court-martial 

who  was  also  the  senior  officer  present  did  not,  in  subscribing  his  action  upon  the 
record,  add  to  his  title  the  words,  "Senior  Officer  Present"  as  required  by  Article  32 
.  of  the  Articles  for  the  Government  of  the  Navy,  and  Navy  Regulations,  1913,  R-620 
(4).  the  department  stated  in  part: 

"The  approval  of  the  senior  officer  present  is  necessary  before  the  sentence  can 
have  any  legal  effect,  and  it  must  be  shown  affirmatively.  It  is  not  sufficient  that 
his  approval  be  shown  inferentially  or  argumentatively. 

"The  importance  of  the  action  of  a  reviewing  officer  is  shown  by  the  following 
words  of  the  Attorney  General,  quoted  with  approval  by  the  United  States  Supreme 
Court:  'And  the  act  of  the  officer  who  reviews  the  proceedings  of  the  court,  whether 
he  be  commander  of  the  fleet  or  the  President,  and  without  wTiose  approval  the  sentence 
can  not  be  executed,  is  as  much  a  part  of  this  judgment,  according  to  law,  as  is  the 
trial  or  sentence.'  (Runkle  v.  U.  S.,  122  U.  S.  558;  11  Op.  Atty.  Gen.  21.)"  File 
26287-25S4,  Sec.  Navy,  Jan.  27, 1915;  C.  M.  O.  6, 1915,  5. 

An  enlisted  man  was  tried  by  summary  court-martial  and  sentenced  to  forfeiture  of 
pay  and  bad-conduct  discharge.  The  record  disclosed  that  the  convening  authority 
was  also  the  senior  officer  present  and  took  separate  actions  thereon;  that  is,  he  acted 
on  the  case  as  convening  authority  and  also  took  separate  action  thereon  as  senior 
9fficer  present.  Navy  Regulations,  1913.  R-620(4)  provides:  "If  the  convening  author- 
ity approves  the  whole  or  any  part  of  the  sentence  adjudged,  he  shall  transmit  the 
record  to  the  commander  In  chief,  or  in  his  absence  to  the  senior  officer  present.  Should 
no  officer  senior  to  himself  be  present,  he  shall,  in  subscribing  his  action  upon  the 
record,  add  to  his  title  the  words  'Senior  Officer  Present.'"  This  one  action  is  thus 
made  to  serve  a  double  purpose  in  such  cases.  (See  C.  M.  O.  6, 1915,  p.  5.)  C.  M.  O. 
12, 1915, 5.  See  also  SUMMARY  COURTS-MARTIAL,  38. 

For  action  in  revision  see  REVISION,  10. 

A  conviction,  upon  trial  by  court-martial,  is  not  complete  until  the  findings  and 
sentence  have  been  approved  by  the  proper  reviewing  authority.  File  26251-1963:1 , 5. 
A.  G.,  Aug.  17, 1910,  p.  1.  Seealso  REVIEWING  AUTHORITY,  11, 19. 


File  26251-1963:1 ,  J.  A.  G.,  Aug.  17, 1910,  p.  9. 

The  convening  authority  is  the  reviewing  authority,  except  where  the  sentence  is 
death  or  the  dismissal  of  a  commissioned  or  warrant  officer.  (A.  G.  N.  53.)  See 
CRITICISM  OP  COURTS-MARTIAL,  35. 

3.  Approval  that  accused  might  not  entirely  escape  punishment.    See  APPROVAL 

ONLY  THAT  ACCUSED  MIGHT  NOT  ENTIRELY  ESCAPE  PUNISHMENT. 

4.  Arrest — Where  it  is  the  proper  action  the  convening  authority  should  release  the 

accused  from  arrest  and  restore  him  to  duty,  and  where  such  does  not  appear  from  the 
record  the  department  will  so  direct  in  the  following  words:  "As  it  does  not  appear 
on  the  record:  of  the  general  court-martial  in  the  foregoing  case  of  Lieutenant  (junior 
grade)  *  *  *  U.S.  Navy,  that  he  has  been  ordered  to  be  released  from  arrest,  such 
action  will  be  taken  to  restore  him  to  duty  as  may  be  necessary."  C.  M.  0. 13, 1914; 
40, 1915;  14, 1916.  See  also  C.  M.  O.  32, 1915,  which  Is  in  error. 

5.  Binding  of  court-martial  records — Convening  authority  responsible.    See  BINDING 

OF  COURT-MARTIAL  RECORDS. 

6.  Changing  action  of — Held,  That  as  a  reviewing  authority  (Senior  Officer  Present) 

can  not  change  his  action  upon  a  summary  court-martial  after  such  action  has  been 
promulgated  and  the  accused  duly  notified,  it  would  be  improper  for  the  successor  in 
office  of  such  Senior  Officer  Present  to  do  wnat  the  original  reviewing  authority  could 
not  do. 

But  if  the  proceedings  have  not  been  published  nor  accused  notified,  it  would  be 
proper  for  such  successor  in  office  to  take  any  further  action  upon  a  case  as  might  seem 
to  him  necessary.  File  26287-1121.  J.  A.  G..  Feb.  24, 1912. 

7.  Charges  and  specifications — Convening  authority  should  follow  prescribed  forms. 

See  CHARGES  AND  SPECIFICATIONS,  15,  43,  44,  47, 48,  53. 

8.  Same— Time  and  place  of  signing  by  convening  authority  should  be  stated.    C.  M.  O. 

159, 1897,  2;  160, 1897,  2. 


CONVENING   AUTHORITY.  113 

9.  Same — Convening  authority,  members  and  judge  advocate  or  recorder,  responsible 
for  correctness  of  charges  and  specifications.  See  CHARGES  AND  SPECIFICATIONS, 
33,  34. 

10.  "  Commander    Cruiser    Squadron    and    Commander  In  Chief    Detached 

Squadron"— As  convening  authority  of  general  courts-martial  and  courts  of  in- 
quiry. C.  M.  O.  6,  1915,  9.  See  also  C.  M.  O.  17,  1915;  40,  1915;  46,  1915;  48,  1915. 
See  also  CONVENING  AUTHORITY  .28. 

11.  "  Commanding  officer,  Fourth  Division  Atlantic  Fleet  Battalion,  U.  S.  Marine 

Corps" — Can  not  convene  summary  courts-martial.  C.  M.  0. 12,  1915,  6.  See  also 
SUMMARY  COURTS-MARTIAL,  23. 

12.  Commuting  sentences.    See  COMMUTING  SENTENCES. 

13.  Confinement  reduced.    See  CONFINEMENT,  34. 

14.  Counsel  for  Judge  advocate — Appointed  by  convening  authority.    See  JUDGE  AD- 

VOCATE, 45 

15.  Courts  of  inquiry.    See  CONVENING  AUTHORITY,  27;  COURTS  OF  INQUIRY,  10. 

16.  Date  of  action.    See  ANTEDATING,  3;  CONFINEMENT,  1, 9. 

17.  Deck  courts.    See  DECK  COURTS,  4, 10, 13, 14,  58. 

18.  Delegation  of  powers— The  powers  of  the  convening  authority  as  reviewing  officer 

cannot  be  delegated.    See  CRITICISM  OF  COURTS-MARTIALS,  35. 

19.  Depositions — Necessity  of  approval  by  convening  authority.    See  DEPOSITIONS,  3. 

20.  Desertion— Convening  authority  remitted  dishonorable  discharge  in  a  case  of  deser- 

tion.   See  DISHONORABLE  DISCHARGE,  11. 12. 

21.  Disapproval— Of  the  entire  proceedings  01  a  naval  court-martial  leaves  nothing  to 

support  an  approval  of  the  sentence.  If  the  entire  proceedings  are  devitalized  by 
a  disapproval,  they  retain  no  force  to  sustain  the  finding  and  sentence  predicated 
thereon.  16J.  A.G.,79.  See  also  C.1&.  0.31,1911,3-4;  REVIEWING  AUTHORITY,  20. 

22.  Dishonorable  discharge — If  dishonorable  discharge  in  the  case  of  marine  is  remitted 

the  forfeiture  of  allowances  should  also  be  remitted.    See  ALLOWANCES,  4. 

23.  Evidence,  unobjected  to— Convening  authority  should  not  notice.    See  EVIDENCE, 

82,  83,  84, 125;  REVIEWING  AUTHORITY,  9. 

24.  Exemptions  In  sentences.    See  EXEMPTIONS  IN  SENTENCES. 

25.  Exercise  of  accused— Convening  authority  (fleet)  approved  the  proceedings,  findings. 

and  sentence  and  directed  that  the  accused  "will  be  confined  as  a  prisoner  on  board 
ship,  with  one  hour's  exercise  on  deck,  under  charge  of  a  sentry,  every  day,"  etc. 
C.  M.  O.  57,  1895,  2;  58,  1895,  2.  NOTE.— A  convening  authority  should  use  the 
authorized  forms  of  action. 

26.  Forms  of  action— Under  G.  0. 110  and  1-4893.    See  GENERAL  ORDER  No.  110,  July 

27, 1914,  3-5,  7. 

27.  General  courts-martial — General  courts-martial  may  be  convened  by  the  President. 

by  the  Secretary  of  the  Navy,  by  the  commander  in'chief  of  a  fleet,  or  squadron,  and 
by  the  commanding  officer  of  any  naval  station  beyond  the  continental  limits  of  the 
United  States.  (Art.  38,  A.  G.  N.,  R-38;  act  of  Feb.  16,  1909,  sec.  10,  35  Stat.,  621; 
"Forms  of  Procedure,  1910,"  pp.  51  and  54.)  SeeC.M.0. 14, 1910, 17. 

The  above  provision  of  law  was  amended  by  the  following  provision  of  the  act  of 
August  29, 1916  (39  Stat.,  586): 

When  empowered  by  the  Secretary  of  the  Navy  general  courts-martial  may  be  con- 
vened by  the  commanding  officer  of  a  squadron,  of  a  division,  of  a  flotilla,  or  of  a  larger 
naval  force  afloat,  and  of  a  brigade  or  larger  force  of  the  naval  service  on  shore  beyond 
the  continental  limits  of  the  United  States:  Provided,  That  in  time  of  war,  if  then  so 
empowered  by  the  Secretary  of  the  Navy,  general  courts-martial  may  be  convened  by 
the  commandant  of  any  navy  yard  or  naval  station  and  by  the  commanding  officer 
of  a  brigade  or  larger  force  of  the  Navy  or  Marine  Corps  on  shore  not  attached  to  a 
navy  yard  or  naval  station. 

28.  Same— An  officer  commanding  a  cruiser  squadron,  U.  S.  Atlantic  Fleet,  on  detached 

duty,  under  proper  orders,  and  while  actually  in  command  of  that  squadron  for  the 
duty  assigned,  is  authorized,  for  the  purpose  of  convening  general  courts-martial  and 
courts  of  inquiry  and  issuing  such  orders  as  necessary  in  relation  thereto,  and  in 
reviewing  records  thereof,  to  sign  in  the  above-mentioned  cases  as  follows:  "Com- 
mander of  Cruiser  Squadron,  and  Commander  in  Chief,  Detached  Squadron,  U.  S. 
Atlantic  Fleet."  File  26504-43:  5.  Sec.  Navy,  Dec.  21, 1914;  C.  M.  O.  6,  1915,  9.  See 
also  C.  M.  O.  17,  1915;  40, 1915;  46, 1915;  48, 1915. 

29.  Same— Convening  of,  on  foreign  territory.    See  JURISDICTION,  53,  54. 


114  CONVENING  AUTHORITY. 

30.  Same^—  From  the  records  of  proceedings  in  a  number  of  general  court-martial  cases 

received  in  the  department,  it  was  noticed  that  the  commander  of  one  of  the  squadrons 
of  the  Navy  signed  the  precept  convening  the  court,  and  also  his  action  as  reviewing 
authority  in  each  case,  as  "Commander, Squadron." 

After  careful  inquiry  into  the  status  of  the  squadron  commander  above  referred  to 
the  department  is  of  opinion  that  he  is  de  facto  commander  in  chief  of  said  squadron; 
and,  as  such,  authorized  by  law  to  convene  general  courts-martial.  The  fact  that  he 
signed  the  precept  convening  the  court  and  his  action  as  reviewing  authority  in  each 
case,  as  commander  rather  than  commander  in  chief,  though  irregular  and  not 
sanctioned,  was  held  by  the  department  not  to  invalidate  the  proceedings. 

This  officer  was  subsequently  directed  to  sign  as  commander  in  chief  all  documents 
pertaining  to  general  courts-martial.  C.  M.  0. 14, 1910, 17. 

A  convening  authority  who  was  in  fact  a  commander  hi  chief,  signed  himself  as 
"Commanding  the  U.  S.  Naval  Forces  on  the  South  Atlantic."  The  department 
held  that  while  the  method  of  signing  as  "commander  in  chief"  is  by  far  preferable, 
it  is  not  a  fatal  defect  for  an  officer  who  is  in  fact  a  commander  in  chief  to  sign 
as  above.  C.  M.  0. 18, 1897, 2-3.  But  see  CHARGES  AND  SPECIFICATIONS,  91. 

Held:  That  an  officer  may  convene  general  courts-martial  and  courts  of  inquiry, 
signing  as  "commander  in  chief,  U.  S.  naval  force  in  San  Domingan  waters."  Simi- 
larly for  other  commanders  of  squadrons  when  separated  from  the  commander  in 
chief,  as  "commander  in  chief,  U.  S.  Naval  Force  in  Venezuelan  waters,"  or  "Medi- 
terranean Sea"— wherever  he  may  happen  to  be.  13  J.  A.  G.,  451,  May  1, 1905. 

31.  Same — Where  the  Navy  Regulations  provided  that  rear  admirals  and  commodores 

may  command  fleets  and  squadrons  but  not  captains,  and  a  captain  was  ordered  as 
"Commander  in  chief"  of  a  squadron,  the  fact  that  he  was  a  captain  did  not  make 
illegal  general  courts-martial  convened  by  him  since  the  Navy  Regulations  in  this 
respect  were  held  to  be  directory  in  character  rather  than  mandatory.  C.  M.  0. 18, 
1897,3. 

32.  Same— The  convening  authority  alone  is  empowered  to  make  changes  in  the  constitu- 

tion of  general  courts-martial  and  orders  given  by  any  other  authority  appointing  or 
relieving  members  or  judge  advocates  are  without  authority  of  law.  C.  M.  O.  68, 
1898;  125, 1900, 1-2;  34  1901;  49, 1910, 11.  See  al*o  COURT,  35,  37-49. 

33.  General  Order  No.  HO.    See  GENERAL  ORDER  No.  110,  July  27, 1914,  3-^5,  7. 

34.  1-4893.  See  GENERAL  ORDER  No.  110,  July  27, 1914, 3-5,  7. 

35.  Joining  charges.    See  JOINDER,  TRIAL  IN. 

36.  Judge  Advocate— Responsible  to  convening  authority  for  proper  discharge  of  his  duties 

See  JUDGE  ADVOCATE,  60. 

37.  Same — Counsel  for  judge  advocate  should  be  appointed  by  convening  authority.    See 

JUDGE  ADVOCATE,  45. 

38.  Members  of  court— Convening  authority  should  not  detail  himself  as  a  member  of  a 

court.    See  COURT,  36. 

39.  Mitigating  sentence — Form  for — In  several  cases  received  from  the  fleets  and  foreign 

stations, It  has  been  observed  that  the  convening  authority  in  mitigating  the  adjudged 
punishment  failed  expressly  to  provide  for  a  corresponding  reduction  in  hard  labor  and 
forfeiture  of  pay  (and  allowances),  necessitating  such  action  by  the  department. 
The  following  phraseology  is  suggested  for  use  in  such  cases: 

"  The  proceedings,  findings,  and  sentence  of  the  general  court-martial  in  the  foregoing 
case  of are  approved,  but,  in  view  of the  period  of  confinement,  with  cor- 
responding hard  labor  and  forfeiture  of  pay  (and  allowances)  is  reduced  to " 

C.M.  0.21,1912,5. 

40.  Nature  and  effect  of  action.    See  CONVENING  AUTHORITY,  2. 

41.  Numbers,  loss  of — Action  on  general  court-martial,  where  it  is  desired  to  place  officer 

at  foot  of  list  and  there  lose  numbers.    See  NUMBERS,  Loss  OF,  10. 

42.  Oath— Summary  court-martial — Official  inquiry  by  convening  authority  will  author- 

ize members  to  disclose  vote  or  opinion  of  members.    See  OATHS,  47. 

43.  Plea  In  bar — Convening  authority  may  not  compel  a  court  to  reverse  its  judgment. 

See  REVIEWING  AUTHORITY,  15, 16. 

44.  Precept— Original  precept  should  be  forwarded  to  convening  authority  when  court  is 

dissolved.    See  PRECEPTS,  23. 

45.  Prejudice  of  convening  authority  is  Immaterial— The  question  of  prejudice,  real 

or  supposed,  on  the  part  of  the  convening  authority  may  be  eliminated.  The  accused 
is  tried,  not  by  theconvening  authority,  but  by  the  court.  13  J.  A.  G.  324,  June  11, 1904. 

46.  Probation— Action   regarding  probation.    C.  M.  O.  15,  1910,  4-5;  17,  1910,  5-6;  21, 

1910,  11-12;  1,  W2,  4.  See  MM  GENERAL  ORDER  No.  110,  July  27,  1914;  NAVAL 
INSTRUCTIONS,  1913, 1-4893;  PROBATION. 


CONVENING   AUTHORITY.  115 

47.  Same— Reports  of  probationers.    See  PROBATION,  17. 

48.  Qualified  approval— Inasmuch  as  unqualified  approval  by  the  department  would  be 

equivalent  to  an  assertion  by  it  that  officers  of  the  naval  service  may  use  Government 
coal  for  private  purposes  without  violating  law,  regulation,  or  propriety,  the  claim 
being  based  upon  an  ingenious  construction  of  recent  appropriation  acts,  it  is  deemed 
most  important  that  the  department  should  qualify  its  approval  by  stating  that  the 
construction  placed  upon  the  appropriation  act  by  counsel  for  the  accused,  and  appar- 
ently accepted  by  the  court,  is  not  tenable.  C.  M.  0. 88, 1895, 15. 

49.  Same — The  proceedings  and  the  finding  upon  the  first  charge  and  its  specification  are 

approved;  the  finding  upon  the  second  charge  and  the  specification  thereunder  is 
disapproved;  and  the  sentence,  though  manifestly  inadequate  as  a  punishment  for  the 
offense  committed,  and  by  no  means  such  as  will  exercise  a  wholesome  influence  upon 
the  discipline  of  the  naval  service,  is  approved  only  in  view  of  the  fact  that  the  exigen- 
cies of  the  service  render  it  impracticable  to  reassemble  the  court.  C.  M.  O.3, 1898, 1. 

50.  Rank,  reduction  In— In  some  cases  where  the  accused  (officer)  was  sentenced  to 

dismissal,  the  Secretary  of  the  Navy  in  submitting  the  case  to  the  President  for  his 
action,  recommended  that  the  accused  be  "reduced  in  rank,"  meaning  reduction  in 
rank  by  loss  of  numbers,  and  the  President  took  such  action.  C.  M.  O.  35, 1892,  11. 
See  also  C.  M.  0. 18, 1897,5;  COMMUTING  SENTENCES,  4. 

51.  Reconvening  court — Convening  authority  desired  to  reconvene  court  because  of 

inadequacy  of  sentence,  but  did  not  do  so  owing  to  the  fact  that  the  ship  was  about  to 
sail,  etc.  C.  M.  0. 11, 1912, 2.  See  also  CONVENING  AUTHORITY,  49;  COURT,  146. 

52.  Same— Reconvening  dissolved  court.    C.  M.  O.  4, 1914.    See  a/so  COUBT,  69,  71. 

53.  Record  of  proceedings.    See  REVISION,  9. 

54.  Reprimand  of  court — Authority  to.    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

55.  Restoration  to  duty  on  probation — After  approving  the  case.    C.  M.  O.  17,  1910, 

5-6;  1, 1912, 4.    See  also  PROBATION,  15. 
5G.  Revision — Action  on  proceedings  in  revision.    See  REVISION,  10. 

57.  Secretary  of  the  Navy — Action  of  as  convening  authority.    See  CONVENING  AU- 

THORITY, 2;  SECRETARY  OF  THE  NAVY,  24,  27,  32,  33, 54. 

58.  Senior  officer  present— Form  of  action  where  convening  authority  and  senior  offi- 

cer present  is  the  same  officer.  C.  M.  O.  6,  1915,  5;  12, 1915,  5.  See  also  CONVENING 
AUTHORITY,  2;  SENIOR  OFFICER  PRESENT,  6. 

59.  Same— Supplying   members  for  summary  courts-martial.    See  SUMMARY  COURTS- 

MARTIAL,  48. 

60.  Sentences-Excessive — The  approval  of  a  sentence  in  which  the  period  of  confine- 

ment adjudged  by  the  court-martial  exceeds  the  limitation  to  punishment  applies 
only  to  so  much  of  the  sentence  as  is  within  the  prescribed  limitation  and  is  void 
ab  initio  as  to  the  excess.  G.  C.  M.  Rec.  23271.  See  also  EXCESSIVE  SENTENCES, 
2,  3,  5. 

The  convening  authority  can  not  dictate  to  the  court  what  sentence  to  adjudge.  See 
CRITICISM  OF  COURTS-MARTIAL,  36. 

61.  Same— Commuting  sentences.    See  COMMUTING  SENTENCES. 

62.  Same — Remission  or  mitigation  after  final  action  on — A  convening  authority  is  not 

authorized  to  remit  or  mitigate  the  sentence  after  having  once  acted  thereupon. 
(See  19  Op.  Atty.  Gen.  106.)  Accordingly  where  such  was  done,  held,  this  action  is 
"illegal  and  ineffectual  to  remit  either  the  confinement  or  the  loss  of  pay  imposed  by 
the  court  in  this  case."  File  26262-1246:1,  Sec.  Navy,  Dec.  29, 1911.  SeeoteoC.M.  O. 
1, 1912, 3,  4;  SECRETARY  or  THE  NAVY,  56. 

63.  Signature  of— Must  show  authority  to  convene.    C.  M.  O.  14,  1910,  17.    See  also 

CHARGES  AND  SPECIFICATIONS,  91;  CONVENING  AUTHORITY,  28-31. 

04.  Summary  courts-martial.  See  RECONVENING,  16;  SUMMARY  COURT-MARTIAL,  18, 
21-23. 

60.  Threat  of  undesirable  discharge — The  convening  authority,  in  his  remarks  upon 
the  proceedings,  recommended  that  execution  of  the  sentence  be  suspended  for  six 
months  with  a  view  to  an  entire  remission  thereof  at  the  expiration  of  the  proba- 
tionary period,  provided  the  conduct  of  the  accused  so  warrants;  otherwise,  that  the 
sentence  be  executed  and  that  upon  its  completion  the  accused  be  discharged  as 
"undesirable"  for  the  naval  service. 

So  much  of  the  convening  authority's  action  as  refers  to  an  "undesirable"  discharge 
is  without  authority,  and,  were  his  recommendation  in  connection  therewith  ap- 
proved, a  punishment  in  excess  of  that  provided  for  by  the  court's  judgment  would 
be  held  over  the  accused  during  the  probationary  period. 


116  CONVENING    AUTHORITY. 

66.  Unobjected  to  evidence  —Convening  authority  should  not  notice.    See  EVIDENCE,  82. 

83,  84;  REVIEWING  AUTHORITY,  9. 

67.  Warrant  officers— May  convene  summary  courts-martial  if  actually  in  command  of 

a  naval  vessel.    See  COURT,  196;  SUMMARY  COURTS-MARTIAL,  105. 

68.  Same— May  convene  deck  courts  if  actually  in  command  of  a  naval  vessel.    See 

DECK  COURTS,  4. 

CONVENING  OFFICER.    See  CONVENING  AUTHORITY. 
CONVENING  ORDER.    See  DECK  COURTS,  15;  PRECEPTS. 

CONVICTS. 

1.  Discharged  as  undesirable — And  turned  over  to  civil  authorities.    See  CIVIL  AU- 

THORITIES. 12. 

2.  Enlistment  in  naval  service— It  is  a  long  established  policy  of  the  Navy  not  to  enlist 

men  who  have  been  convicted  by  civil  courts.  For  similar  reasons  the  department 
invariably  refuses  to  retain  in  the  naval  service  enlisted  men  who  are  convicted  by 
civil  courts  of  offenses  which  render  them  unfit  for  the  service.  (SeeC.  M.  O.  42, 1915, 
p.  6;  35,  1915,  p.  8.)  File  20524-222:  3,  Sec.  Navy,  Feb.  9,  1916;  C.  M.  O.  5,  1916,  7. 
See  also  File  26524-215,  Sec.  Navy,  Dec.  8, 1915. 

"  No  person  who  has  been  convicted  of  crime  or  is  of  known  bad  character  shall  be 
enlisted."    (R-3686.)    File  7657-396,  Sec.  Navy,  Sept.  15,  1916. 

3.  "  Escaped  convict"— Should  not  be  enlisted.    File  26524-215,  Sec.  Navy,  Dec.  8, 1915. 

See  also  CIVIL  AUTHORITIES,^;  FUGITIVE  FROM  JUSTICE,  2. 

CONVICT  LABOR. 

1.  Laws -Relating  to.    See  File  12494-81. 

COPIES,  CERTIFIED.    See  CERTIFIED  COPIES;  EVIDENCE,  DOCUMENTARY. 

COPIES  OF  RECORDS.  See  CERTIFIED  COPIES;  CIVIL  COURTS,  2;  COURTS  OP  INQUIRY, 
12;  GENERAL  ORDER  No.  121.  September  17, 1914,  23;  MEDICAL  RECORDS;  RECORDS 
OF  OFFICERS;  REPORTS  ON  FITNESS;  RECORDS  OF  THE  DEPARTMENT. 

CORONERS. 

1.  Inquests — Jurisdiction  of  coroners  to  hold  inquests  on  naval  territory.    See  JURISDIC- 
TION, 22-24. 

CORONER'S  INQUEST. 

1.  Confession— Statements  of  accused  before  coroner's  inquest.    See  CONFESSIONS,  10. 

CORPORATIONS. 

1.  Retired  officers— Employment  by.    See  RETIRED  OFFICERS,  28,  31. 

CORPSE,  DISPOSITION  OF.    See  DISPOSITION  OF  BODIES. 

CORPUS  DELICTI. 

1.  Application  of  doctrine— This  doctrine  applies  particularly  to  such  offenses  as  homi- 

cide, and  the  strictness  of  the  rule  is  relaxed  in  minor  offenses. 

"  The  rule  with  regard  to  proof  of  the  corpus  delicti,  apart  from  the  mere  confession 
of  the  accused,  proceeds  upon  the  reason  that  the  general  fact  without  which  there 
could  be  no  guilt,  either  in  the  accused  or  in  anyone  else,  must  be  established  before 
anyone  could  be  convicted  of  the  perpetration  of  the  alleged  criminal  act  which  caused 
it,  as  in  cases  of  homicide  the  death  must  be  shown,  in  larceny  it  must  be  proved  that 
the  goods  were  lost  by  the  owner,  and  in  arson  that  the  house  had  been  ourned;  for 
otherwise  the  accused  might  be  convicted  of  murder  when  the  person  alleged  to  be 
murdered  was  alive,  or  of  larceny  when  the  owner  had  not  lost  the  goods,  or  of  arson 
•  when  the  house  was  not  burned.  But  where  the  general  fact  is  proved  the  foundation 
is  laid  and  it  is  competent  to  show  by  any  legal  and  sufficient  evidence  how  and  by 
whom  the  act  was  committed,  and  that  it  was  done  criminally. "  (Saint;.  State,  :£{ 
Mass.  347.)  C.  M.  O.  26, 1910, 10.  See  also  File  26251-7121:3,  December,  1912. 

2.  Fraudulent  enlistment— Tho  prosecution  put  in  evidence  a  confession  by  the  accused 

regarding  his  age,  which  was  ordered  stricken  out  by  the  court  as  not  admissible  until 
the  corpus  delicti  had  been  proved  by  other  evidence.  This  ruling  was  erroneous. 
The  doctrine  that  the  corpus  delicti  must  be  astablLshed  before  conviction— that  is, 
that  the  prosecution  must  show  "the  substantial  fact  that  a  crime  has  been  com- 
mitted by  some  one"  before  the  person  accused  can  be  convicted — grew  out  of  the 


CORPUS   DELICTI.  117 

dealings  of  the  courts  with  such  offenses  as  homicide,  arson,  burglary,  theft,  and  the 
like,  as  is  fovvnd  by  a  mere  reference  to  the  authorities  and  adjudicated  cases;  and  it 
appears  that  the  civil  courts  have  recognized  the  fact  that  the  strictness  of  the  rule  is 
relaxed  in  the  cases  of  minor  offenses  where  from  the  nature  of  things  it  is  imprac- 
ticable otherwise  than  by  presumption  to  show  that  an  oflense  has  been  committed. 
(Bouyier's  Law  Dictionary.  1897.  vol.  1,  p.  446.)  The  subtle  technicalities  of  the 
English  common  law  should  not  be  introduced  into  the  procedure  of  general  courts- 
martial  without  carefully  observing  the  limitation  by  which  their  application  is  de- 
fined, and  they  should  never  be  so  used  as  to  confuse  procedure  and  defeat  administra- 
tion of  justice.  The  main  facts  of  the  present  case  were  established  by  oral  testimony 
and  by  the  .enlistment  record  of  the  accused,  and  it  remained  only  for  the  members 
of  the  court,  acting  in  their  capacity  as  jurors,  to  find  upon  the  question  whether  or  not 
the  accused  was  under  age  at  the  time  of  enlistment.  The  proper  rale  in  such  cases  is 
laid  down  in  the  American  and  English  Encyclopaedia  of  Law,  1888,  volume  4,  page 
309,  under  the  title  "Corpus  delicti,"  as  follows: 

"It  is  sufficient  that  there  be  such  extrinsic  corroborative  circumstances  as  will, 
taken  in  connection  with  the  confession,  produce  conviction  of  the  defendant's  guilt 
in  the  minds  of  the  jury."  C.  M.  0. 94, 1905, 1. 

3.  Proof  of— Must  be  proved  in  proper  case  before  a  confession  is  admissible.    C.  M.  0. 94, 

1905, 1;  42, 1909, 6;  17, 1910, 4;  26, 1910, 10.    See  also  File  26251-7121:3;  CONFESSIONS,  5. 

4.  Sodomy.    See  File  26251-7121:3. 

COBBECTIONS.    See  also  ALTEBATIONS;  AMENDMENTS. 

1.  Charges  and  specifications.    See  CHARGES  AND  SPECIFICATIONS,  33,  34. 

2.  Clerical  errors — On  revision.    See  RECORD  OP  PROCEEDINGS,  26. 27. 

3.  Names.    C.  M.  O.    12, 1915, 10;  16, 1915, 6;  20, 1915, 7.    See  also  NAME.  CHANGE  OF. 

4.  Record — No  corrections  should  be  made  in  original  record  in  proceedings  in  revision. 

C.  M.  0. 47, 1910,  5;  17, 1910,  5;  5,  1911,  5;  5, 1912,  14;  5, 1914,  9.  See  also  ACCUSED,  8; 
RECORD  OF  PROCEEDINGS,  26. 

5.  Same — Where  record  of  proceedings  correctly  reports  the  proceedings  which  actually 

occurred,  it  can  not  properly  be  "corrected"  so  as  to  record  a  different  state  of  facts. 
C.  M.  O.  51, 1914,  9.  See  also  C.  M.  O.  14,  1910,  10. 

6.  Records  of  the  department.    See  RECORDS  OF  THE  DEPARTMENT. 

CORRESPONDENCE.    See  also  DESIGNATIONS. 

1.  Official — Official  correspondence  between  officers  of  the  naval  service  and  officials  of 

the  public  service  must  be  courteous  in  tone  and  free  from  any  expressions  of  a  per- 
sonal nature.  File  24482-34,  J.  A.  G.,  May  lj  1911,  p.  3.  See  also  OFFICERS,  69. 

2.  Same — Irregular  interpolation  of  personal  opinion  and  information  is  not  only  con- 

trary to  the  United  States  Navy  Regulations,  but  tends  to  create  dissension  mili- 
tating against  the  efficiency  of  the  naval  service.  File  6833,  Mar.  1, 1907;  875-6,  Mar. 
28,1907. 

3.  Titles.    See  DESIGNATIONS. 

CORROBORATIVE  TESTIMONY.    See  EVIDENCE,  33-35. 

COUNSEL. 

1.  "Able  counsel" — Accused  represented  at  his  trial  by.    C.  M.  O.  6, 1915,  6. 

2.  Absence  of — If  the  counsel  for  the  accused  is  absent  at  any  time  during  the  proceed- 

ings, the  record  should  show  affirmatively  that  the  accused  waived  his  privilege  of 
having  his  counsel  present  during  that  time.  C.  M.  O.  42, 1909,  6.  See  also  Q.  C.  M. 
Rec.  30684,  p.  301. 

3.  Accused — Unreasonable  demand  for  civilian  counsel.    See  COUNSEL,  20. 

4.  Accused  advised  of  right  to-^When  the  accused  has  no  legal  adviser,  the  comman- 

dant of  the  navy  yard  or  station,  the  commander  in  chief,  or  the  senior  officer  present , 
within  whose  jurisdiction  the  court  sits,  shall,  if  the  accused  so  requests,  detail  a 
suitable  officer  to  act  as  his  counsel.  If  there  be  no  such  officer  available,  the  fact  shall 
be  reported  to  the  convening  authority  for  action.  An  officer  so  detailed  shall  perform 
such  duties  as  usually  devolve  upon  counsel  for  defendant  before  civil  courts  In  crim- 
inal cases.  As  such  counsel  he  should  guard  the  interests  of  the  accused  by  all  honor- 
able means  known  to  the  law,  so  far  as  they  are  not  inconsistent  with  military  rela- 
tions. Enlisted  men  to  be  tried  shall  be  particularly  advised  of  their  rights  in  the 
premises,  and  counsel  detailed  for  them,  if  practicable,  unless  they  explicitly  state 
that  they  do  not  desire  such  assistance.  C.  M.  O.  75,  1898;  78,  1905,  1;  55,  1910,  8. 


118  COUNSEL. 

5.  Accused  bound  by  attitude  of  counsel  during  trial — Where  the  judge  advocate 

challenges  a  member  and  counsel  for  accused  objects,  the  accused  is  estopped  to 
complain  of  the  court's  ruling  which  did  not  sustain  the  challenge.  C.  M.  O.  128, 
1905,  4.  See  also  CHALLENGES,  9. 

6.  Accused  entitled  to— The  accused  is  entitled  to  counsel  as  a  right,  and  the  court  can 

not  properly  deny  him  the  assistance  of  a  professional  or  other  adviser.  C.  M.  O. 
78, 1905;  6, 1909.  3. 

7.  Accused  without  counsel — Judge  advocate's  duty.    See  JUDGE  ADV9CATE,  28-44. 

8.  Additional  civilian  counsel  lor  prosecution — A  general  court-martial  can  not  as- 

sign additional  counsel  for  the  prosecution  so  as  to  permit  such  additional  counsel 
to  have  any  official  standing  before  the  court.  File  26504-140,  J.  A.  G.  May  6,  1912. 

A  civilian  lawyer  appointed  "as  counsel  to  the  judge  advocate."  File  26251- 
10398:6,  Sec.  Navy.  Apr.  26, 1915. 

The  Secretary  01  the  Navy  requested  the  Department  of  Justice  to  furnish  legal  as- 
sistance to  a  judge  advocate  in  the  general  court-martial  trial  of  an  enlisted  man  oil 
the  charge  of  "Manslaughter."  The  request  was  granted  and  a  United  States  district 
attorney  was  directed  to  assist  the  judge  advocate.  G.  C.  M.  Rec.  16098.  Exhibit 
"B  ";  File  6674-30;  File  of  Dept.  Justice,  E.  T.  S.  99858,  March  28, 1907. 

9.  Appeals  by  counsel  of  the  accused.    See  APPEALS,  4, 12, 13. 

10.  Argument,  closing — General  courts-martial.    See  ARGUMENTS. 

11.  Boards  of  Investigation.    See  BOARDS  OF  INVESTIGATION,  4. 

12.  Briefs — Submitted  to  department  by  counsel  for  accused.    See  BRIEFS,  1,  2,  3. 

13.  Same — Oral  argument  as  to  admissibility  of  evidence  and  upon  interlocutory  pro- 

ceedings.   See  ARGUMENTS,  4;  BRIEFS,  I. 

14.  Choice  of — Accused  in  a  naval  court-martial  ease  in  which  counsel  is  appointed  for 

him  by  the  Government  has  no  choice  in  the  matter  and  his  wishes  even  are  not  to  be 
consulted  as  to  the  individual  who  shall  be  designated  to  defend  him.  File  26251- 
6020:11,  July  7,  1913. 

15.  Civilian  counsel— Praises  the  witnesses  of  a  general  court-martial — "I  also  desire  to 

express,  as  an  outsider  and  a  civilian",  my  admiration  for  the  appearance  and  conduct 
of  the  naval  officers  who  have  appeared  here  as  witnesses.  It  was  quite  a  revelation 
to  me  to  see  the  evident  spirit  of  fairness  and  the  desire  to  stick  closely  to  the  absolute 
truth.  That  is  something  we  do  not  see  so  uniformly  in  civil  courts.  Often  a  witness 
becomes  an  in  tense  partisan  for  the  side  which  calls  him ;  but  the  attitude  and  cond  at  t 
of  the  young  officers  particularly  left  an  impression  upon  me  that  I  shall  never  forget." 
File  26251-9280;  G.  C.  M.  Rec.  29422,  p.  505. 

16.  Same— Accused  represented  by.    C.  M.  O.  128, 1905;  20, 1915,  6;  35, 1915,  6. 

17.  Compensation — Naval  officers  prohibited  from  receiving  compensation — A  retired 

naval  officer  is  an  officer  in  the  employ  of  the  Government  within  the  meaning  of  the 
act  of  March  4, 1909  (35  Stat. ,  1 109),  and  can  not  legally  accept  any  compensation  what- 
ever, directly  or  indirectly,  for  any  services  rendered  or  to  be  rendered  to  any  person  as 
counsel  before  courts-martial  of  the  United  States.  (29  Op.  Atty.  Gen.  397.)  File 
27231-60,  Sec.  Navy,  Feb.  26. 1915;  C.  M.  O.  10,  1915,  13.  See  also  G.  C.  M.  Rec.  30485, 
exhibit  6,  21;  File  27231-00. 

18.  Complemented— By  the  department.    C.  M.  O.  86, 1898, 1. 

19.  Constitutional  rights — Of  accused    to   be    represented    by  counsel— Though  the 

reference  in  Article  VI  of  the  Amendments  to  the  Constitution  of  the  United  States. 
that  "in  all  criminal  prosecutions"  the  accused  shall "  have  the  assistance  of  counsel 
for  his  defense"  is  to  prosecutions  before  criminal  courts  of  the  United  States,  naval 
courts-martial,  though  not  bound  by  the  letter,  are  within  the  spirit  of  the  provision. 
C.  M.  0. 49, 1910,  14;  55, 1910. 8.  See  also  CONSTITUTIONAL  RIGHTS  OP  ACCUSED,  1. 

20.  Continuance  requested— When  an  enlisted  man,  while  a  prisoner  at  large  awaiting 

trial  by  summary  court-martial,  was  afforded  ample  time  in  which  to  secure  civilian 
counsel,  but  at  his  trial  requested  a  postponement,  for  such  time  as  he  would  be  per- 
mitted, to  go  in  person  to  some  city  in  the  State  for  the  purpose  of  engaging  counsel, 
the  court  properly  decided  that  this  request  was  unreasonable.  This  action  of  the 
court  did  not  deny  the  accused  the  right  to  be  represented  by  civilian  counsel,  but 
decided  in  effect  that,  as  he  had  had  ample  time  and  opportunity  to  secure  counsel 
and  had  failed  to  do  so,  his  demand  that  he  be  set  at  liberty  for  this  purpose  was 
unreasonable.  The  accused  refused  to  allow  any  naval  officer  on  duty  at  place  of 
trial  to  act  as  his  counsel,  whereupon  the  court  properly  decided  that  the  accused 
"had  denied  himself  the  benefit  of  counsel,"  and  proceeded  with  the  trial.  File 
26287-15:37.  Sec.  Navy,  Apr.  7,  1913;  S.  C.  M.  Rec.  5131, 1913. 


COUNSEL.  119 

21 .  Court — Duty  of  to  provide  counsel  for  accused.    See  COUNSEL,  4. 

22.  Same— Where  accused  stated  that  they  had  been  unable  to  obtain  counsel,  and  it  did 

not  appear  from  the  record  that  they  did  not  desire  counsel,  it  was  held  by  the  depart- 
ment tnat  it  was  the  duty  of  the  court  to  make  some  effort  to  provide  counsel.  C.  M.  O. 
78,  1905. 

23.  Court  of  inquiry — Requests  assistance  of  district  attorney — Procedure  to  secure. 

File  9608-44:3,  Sec.  Navy,  Mar.  21, 1914. 

Department  requested  the  department  of  Justice  to  furnish  legal  assistance  to  the 
judge  advocate  of  a  court  of  inquiry  which  was  convened  to  investigate  a  case  of 
homicide  which  might  possibly  be  tried  subsequently  in  a  Federal  court.  File  26250- 
842:3,  Sec.  Navy,  Sept.  26,  1916. 

Until  a  party  clearly  becomes  a  defendant  he  is  not  entitled  to  counsel.  In  one 
case  the  court  informed  a  party  who  requested  permission  to  be  represented  by  coun- 
sel: "  You  are  advised  that  the  court  does  not  at  this  time  regard  you  as  a  party  in  the 
case  now  before  it,  and  therefore  is  unable  to  comply  with  your  request."  Ct.  Inq. 
Rec.  4952,  p.  292. 

24.  Criminating  questions —Counsel  for  accused  not  permitted  to  object  to  questions 

being  asked  accused,  who  is  testifying  at  own  request,  on  ground  that  the  answers 
would  criminate.  See  SELF  INCRIMINATION,  16. 

25.  Same— Counsel  for  accused  not  permitted  to  object  to  a  witness  answering  a  question 

the  answer  to  which  might  criminate  the  witness.    See  SELF- INCRIMINATION,  16. 
20.  Criticized  by  the  department— A  naval  officer  in  his  capacity  of  counsel  for  accused, 
having  misstated  facts  in  his  closing  argument,  was  criticized  for  so  doing  by  the 
department.    C.  M.  O.  9, 1908,  3;  G.  C.  M.  Rec.  21478. 

27.  Detailed  by  senior  officer  present— Counsel  in  a  summary  court-martial  case  was 

detailed  by  senior  officer  present  at  request  of  accused.  File  26287-3475,  Sec.  Navy, 
July  5,  1916. 

28.  Division  officer— It  is  considered  advisable,  when  practicable,  that  the  accused  be 

represented  by  counsel,  preferably  his  division  officer  or  some  other  officer  who 
consents  to  act".  C.  M.  0. 6, 1909, 3. 

29.  Duties  and  powers  of— An  officer  acting  as  counsel  for  accused  should  not  institute 

habeas  corpus  proceedings  or  a  suit  for  damages  against  members.  File  8464-03. 
See  also  COUNSEL,  36;  HABEAS  CORPUS,  17. 

30.  Exception  or  protest — Improper  to  enter  on  record.    See  EXCEPTIONS,  2,  3. 

31.  Failure  to  provide — Where  an  accused  goes  on  record  as  being  desirous  of  having 

counsel,  and  is  denied  that  right,  except  where  it  is  impracticable  to  obtain  counsel, 
such  denial  constitutes  a  fatal  irregularity,  and  the  improper  procedure  of  designat- 
ing the  judge  advocate  to  act  in  that  capacity  does  not  offset  this  irregularity  nor 
fulfill  the  requirements.  C.  M.  O.  49. 1910, 14. 

32.  Same — Where  accused  desired  counsel  but  later  stated  in  open  court  that  he  would 

proceed  without  counsel  and  that  he  was  ready  for  tria.,  the  department  held  that 
this  did  not  constitute  a  denial  of  the  right  to  have  counsel.  C.  M.  O.  55, 1910, 7.  See 
also  C.  M.  O.  53,  1901  1-2. 

33.  Foreign  country— While  as  the  law  stands  at  the  present  time  it  is  doubtless  within 

the  province  of  the  Attorney  General  only  to  employ  counsel  in  foreign  countries  to 
defend  the  United  States  against  suit  for  collision  by  a  naval  vessel,  the  Attorney 
General  has  neither  facilities  tor  communicating  with  the  naval  officers  abroad  nor 
has  he  any  method  of  ascertaining  who  would  be  the  most  desirable  attorneys  to 
employ  or  by  what  particular  method  such  employment  should  be  made.  The 
Attorney  General,  therefore,  requested  that  the  Secretary  of  the  Navy  act  in  his 
stead  in  arranging  for  the  employment  of  counsel  to  defend  a  suit  brought,  in  the 
Supreme  Court  of  Hongkong  by  owners  of  a  Chinese  junk,  Tung  on  Tai,  aeainst  the 
master  of  the  U,  S.  N.  A.  Alexander.  File  4729-1,  Apr.  24,  1900.  See  also  COLLI- 
SION, 1. 

34.  Same-rCounsel  employed  in  foreign  country  to  defend  master  of  a  United  States 

auxiliary  in  suit  for  collision  not  required  to  take  oath  of  office.    File  4729-18. 

35.  Same — A  naval  officer  was  detailed  by  commander  in  chief  of  Asiatic  FJeet  as  counsel 

for  an  enlisted  man  in  proceedings  before  United  States  court  for  the  consular  district 
of  Hankow  upon  charge  of  manslaughter.  See  File  12671-35. 

36.  Habeas  corpus— Officer  acting  as  counsel  for  accused  should  not   institute  habeas 

corpus  proceedings  or  a  suit  for  damages  against  members.  See  COUNSEL,  29; 
HABEAS  CORPUS,  17. 


120  COUNSEL. 

37.  Incompetent— When  It  Is  contended  by  civilian  counsel  employed  by  the  accused 

after  completion  of  the  trial  that  the  accused  was  not  properly  represented  by  coun- 
sel, the  commissioned  officer  appointed  to  defend  him  being  incompetent,  and  at  the 
same  time  it  is  asserted  that  the  accused  should  have  been  acquitted  upon  the  evidence 
before  the  court,  the  contention  is  considered  "as  being  wholly  without  merit." 
File  26251-6020:11,  July  7,  1913. 

38.  Judge  advocate— As  counsel  for  accused.    See  JUDGE  ADVOCATE,  28-44. 

Counsel  for  judge  advocate.    See  COUNSEL,  39;  JUDGE  ADVOCATE,  45-48. 

39.  Law  clerk— The  law  clerk  in  the  Office  of  Judge  Advocate  General  was  assigned  by 

the  Secretary  of  the  Navy  as  counsel  to  the  judge  advocate  in  the  trial  of  a  commis- 
sioned officer  by  general  court-martial.  File  26251-10398:0.  Sec.  Navy,  Apr.  26,  1915; 
G.  C.  M.  Rec.  30485,  exhibit  4. 

40.  Negligence  of— Effect  of.    File  26251-6020:11,  Sec.  Navy,  July  7, 1913. 

41.  Oath— Special  counsel.    See  COUNSEL,  34,  50. 

42.  Officers — Compensation  for  acting  as  counsel  prohibited.    See  COUNSEL,  17. 

Detailed  to  defend  an  enlisted  man  In  a  civil  court.    See  COUNSEL,  35. 
As  counsel  for  the  United  States  in  the  Supreme  Court.    See  COUNSEL,  52. 

43.  Privilege.    See  PRIVILEGE. 

44.  Procedure — Of  securing  counsel  for  accused.    See  COUNSEL,  4. 

45.  Prosecuting  witness — A  general  court-martial  can  not  assign  additional  counsel  for 

the  prosecution  (employed  and  paid  by  prosecuting  witness)  so  as  to  permit  such 

additional  counsel  to  have  any  official  standing  before  the  court.  File  26504-140, 
J.  A.  G.,  May  6, 1912. 

46.  Protests  or  exceptions — Not  permitted  on  record.    See  BILLS  OF  EXCEPTIONS,  l; 

COUNSEL,  30;  EXCEPTIONS,  2,3;  PROTESTS,  1. 

47.  Record  of  proceedings — It  should  be  shown  on  record  whether  or  not  the  accused 

desired  counsel  and.  if  so,  that  the  request  was  granted  and  counsel  entered.   C.  M.  O. 
12  1911,  3. 
Record  of  proceedings  should  note  absence  of  counsel.    See  COUNSEL,  2. 

48.  Retired  officers — Acting  as  counsel  for  accused.    See  COUNSEL,  17. 

49.  Solicitor— The  solicitor  in  the  Office  of  the  Judge  Advocate  General  was  assigned  by 

the  Secretary  of  the  Navy  as  associate  and  assistant  to  a  judge  advocate  of  a  court 
of  inquiry.  Ct.  Inq.  Rec.  4952. 

He  has  also  represented  the  United  States  in  the  Supreme  Court.    (U.  S.  v.  Smith, 
197  U.  S.  £6;  File  469-1904. 

50.  Special — Special  counsel  employed  in  foreign  countries  to  defend  the  master  of  a  United 

States  auxiliary  in  a  suit  for  collision  not  required  to  take  the  oath  of  office  required 
by  R.  S.  366.  (See  act  Aug.  24,  1912,  37  Stat.  465;  18  Op.  Atty.  Gen.  135.)  File 
4729-18. 

51.  Statements  of  counsel— Court  should  not  give  weight  to  statements  of  counsel  for 

the  accused  by  accepting  them  as  evidence.    C.  M.  O.  5,  1913,  10. 

52.  Supreme  Court— A  commissioned  officer  of  the  Marine  Corps  appeared  in  behalf  of 

the  United  States  "by  special  leave  of  the  court."  (Johnson  v.  Sayre,  158  U.  S.  113.) 
See  File  5728-1894.  See  also  U.  S.  v.  Freeman  (3  How.  560),  in  which  the  defendant, 
an  officer  of  the  Marine  Corps,  submitted  printed  argument  for  himself  and  was  not 
represented  by  counsel. 

Solicitor  has  also  represented  the  United  States  in  the  Supreme  Court.    See  COUN- 
SEL, 49. 

53.  Unreasonable  request— Of  accused  for  civilian  counsel.    See  COUNSEL,  20. 

64.  Witness— If  counsel  is  a  witness  he  is  not  to  be  warned  or  shown  as  withdrawing. 
C.  M.  0.15,1910,  5. 

55.  Same— Counsel  is  not  permitted  to  object  to  a  witness  answering  a  question  which 

might  criminate  the  witness.    See  SELF  INCRIMINATION,  16. 

56.  Same— Counsel  should  not  improperly  assist  witness  on  stand.    C.  M.  O.  49,  1915, 

10, 11. 

COUNSEL  FEES. 

1.  Collision— Between  Chicago  and  Azov.    See  File  4290-99;  2068-99.    See.  also  21  Op. 

Atty.  Gen.  195;  COLLISIONS,  2. 

2.  Same — Saturn  and  Newchwang.    File  4573-02. 

3.  Officers— Acting  as  counsel  for  accused  in  naval  court-martial  cases.    See  COUNSEL,  17. 


COURT.  121 

COUNTERSIGN. 

I.  Officer  should  respect — An  officer  should  not  display  ignorance  of  the  duties  of  a 

sentinel,  should  respect  the  sacred  character  of  a  countersign,  and  should  treat  inferiors 
charged  with  responsible  duties,  such  as  sentinels,  with  respect.  Where  an  officer 
did  not  so  act  he  was  tried  by  general  court-martial.  C.  M.  O.  95, 1893,  2-3.  See  also 
ORDERS,  34;  SENTINELS,  18. 

COURT. 

1.  Absence  of  members.    See  MEMBERS  OF  COURTS-MARTIAL,  1-6. 

2.  Accused — Courts-martial  in  the  conduction  of  trials  should  guard  against  anything 

which  might  indicate  that  the  accused  was  not  fully  protected  in  his  rights,  and  thus 
prevent  any  question  from  arising  as  to  the  fairness  of  his  trial.  File  26251-10287,  Sec. 
Navy,  Feb.  20,  1915. 

3.  Same— Should  be  present  during  trial.    See  ACCUSED,  1-9. 

4.  Adjournment.   See  ADJOURNMENT  OF  COURTS-MARTIAL. 

5.  Authentication — Of  record  of  proceedings.    See  RECORD  OF  PROCEEDINGS,  10-16. 

6.  Same — Omission  of  signature  of  one  of  members.     See  MEMBERS  OF  COURTS-MAR- 

TIAL, 12,  24.    See  also  AUTHENTICATION  OF  SENTENCES. 
.  7.  Boatswains— May  not  act  as  deck  court  officers.    See  DECK  COURTS,  62. 

8.  Same — May  convene  deck  courts  if  actually  in  command  of  a  naval  vessel.    See  DECK 

COURTS.  4. 

9.  Same — If  commanding  a  naval  vessel  a  boatswain  may  convene  a  summary  court- 

martial.   See  BOATSWAINS,  10;  SUMMARY  COURTS-MARTIAL,  21. 
10.  Carelessness,  gross— Of  court  and  judge  advocate.    C.  M.  O.  78,  1905,  1;  14,  1913,  5. 

II.  Censured  by  department.   See  CRITICISM  OF  COURTS-MARTIAL,  6, 16, 35, 36. 

12.  Challenges.   See  CHALLENGES. 

13.  Changes — In  court.    See  CONVENING  AUTHORITY,  32;  COURT,  35,  37-48. 

14.  Charges  and  specifications — Court  errs  if  it  pronounces  faulty  charges  and  specifi- 

cations in  "due  form  and  technically  correct."  C.  M.  O.  35,  1915,  6-7.  See  also 
COURT,  73. 

15.  Same— Errors  In.    See  CHARGES  AND  SPECIFICATIONS  33,  34. 

16.  "  Cleared  court"— Purpose  must  be  shown  in  record.    C.  M.  O.  28,  1910,  6.    See  also 

COURT,  20. 

17.  Clemency — The  power  of  exercising  clemency  is  vested  in  the  reviewing  authority, 

not  in  the  court-martial  or  the  members.  C.  M.  O.  67,  1902;  1,  1914,  8.  See  also 
ADEQUATE  SENTENCES,  4-19;  CLEMENCY,  13. 

18.  Same— Revising  authority  will  not  exercise  clemency  when  court  adjudges  an  inade- 

quate sentence.    See  ADEQUATE  SENTENCES;  CLEMENCY,  13. 

19.  Same — Recommendations  to  clemency  should  be  made  by  members,  not  court.    See 

CLEMENCY,  35. 

20.  "  Closed  court" — An  incident  of  sufficient  importance  to  be  mentioned  in  the  record 

should  be  recorded  therein  with  such  clearness  as  to  render  its  intelligent  review  prac- 
ticable. Therefore,  where  the  court  is  cleared  "for  the  examination  of  a  question  sug- 
gested by  a  member,"  and  subsequently  "that  the  question  suggested  was  with- 
drawn," the  question  suggested  should  be  included  in  the  record  so  that  the  reviewing 
authority  may  form  an  intelligent  judgment  as  to  the  propriety  of  this  action.  C.  M. 
0. 10, 1897, 3-4.  See  also  COURT,  16;  REVIEWING  AUTHORITY,  17. 

21.  Same— Record  should  show  purpose  for  which  cleared.    See  COURT,  16,  20. 

22.  Same— The  accused  submitted  a  plea  in  bar  of  trial.    "The  court  sustained  this  plea 

and  dismissed  the  said  specification.  They  did  this  upon  evidence  produced  in 
secret  session,  and  when  the  court  was  cleared  for  deliberation,  and  in  the  absence 
of  the  accused.  That  evidence  should  have  been  produced  only  in  open  court  by 
the  accused,  as  part  of  his  case,  and  in  support  of  his  plea.  Thus,  while  the  con- 
clusion arrived  at  upon  the  proof  was  correct,  and  is  approved  by  the  Secretary  of 
the  Navy,  the  mode  of  introducing  that  proof  was  wholly  irregular,  and  is  disap- 
proved." G.  O.  152,  Mar.  29.  1870. 

23.  Same— Judge  advocate  should  not  be  present.    See  'ACCUSED,  3;  JUDGE  ADVOCATE, 

105. 

24.  Same— Closing  court  after  arriving  at  a  finding.    C.  M.  O.  26>  1910,  8. 

25.  Same — When  court  opens  it  should  announce  its  decision.    C.  M.  O.  49,  1915,  10. 

26.  "Closed  doors."    See  COURT,  16,  20-25. 

27.  Commanding  officer — Of  a  naval  vessel  hi  imposing  punishments  is  not  a  court- 

martial.    See  COMMANDING  OFFICERS,  14,31;  JEOPARDY,  FORMER,  3. 

28.  Same— Can  not  convene  a  general  court-martial.    See  COMMANDING  OFFICERS,  22. 

29.  Same — Can  convene  only  summary,  courts-martial  and  deck  courts  for  trial  of  enlisted 

men  imiler  their  command.    See  'COMMANDING  OFFICERS,  42. 


122  COURT. 

30.  Common  law— Subtle  technicalities  of.    See  COMMON  LAW,  12. 

31.  Composition — Of  naval  courts-martial.    See  COURT,  33-51. 

32.  Conjectures — The  court,  whose  finding  is  controlled  by  oath  and  rendered  with  all 

the  solemnity  incident  thereupon,  is  not  required  to  indulge  in  conjectures  for  the  pur- 
pose of  supplying  omissions  in  the  testimony  which  it  was  the  duty  of  the  accused 
to  offer  if  he  desired  and  was  able  to  do  so  (C.  M.  O.  39,  1913, 13);  but  on  the  contrary 
the  court's  duty  is  to  render  its  findings  upon  the  evidence  before  it.  C.  M.  O.  24, 
1914, 6.  See  also  COURT,  95;  EMBEZZLEMENT,  25  (lines  35-37). 

33.  Constitution  of— General  court-martial— A  general   court-martial   shall  consist  of 

not  more  than  13  nor  less  than  5  commissioned  officers  as  members;  and  as 
many  officers,  not  exceeding  13,  as  can  be  convened  without  injury  to  the  serv- 
ice, shall  be  summoned  on  every  such  court.  But  in  no  case,  where  it  can  be 
avoided  without  injury  to  the  service,  shall  more  than  one-half,  exclusive  of  the 
president,  be  junior  to  the  officer  to  be  tried.  The  senior  officer  shall  always  preside, 
and  the  others  shall  take  place  according  to  their  rank.  (A.  G.  N.  39.)  C.  M.  O. 
68, 1898,  3;  125, 1900, 1;  7, 1914, 10. 

34  Same— In  detailing  officers  for  a  general  court-martial  for  the  trial  of  a  medical,  pay, 
or  marine  officer  it  is  deemed  proper,  if  the  exigencies  of  the  service  permit,  that  at 
least  one-third  of  the  court  be  composed  of  officers  of  the  same  corps  as  the  person 
to  be  tried.  No  officer  should  be  named  in  the  precept  as  a  member  against  whom 
either  the  judge  advocate  or  the  accused  can  reasonably  object  when  called  upon  to 
exercise  the  privilege  of  challenge.  C.  M.  0. 1, 1914, 7.  See  also  EVIDENCE,  12  (p. 
219). 

35.  Same— There  should  be  no  change  in  the  constitution  of  a  general  court-martial,  as 

stated  in  the  precept,  without  authority  therefor  appearing  on  the  record.  C.  M.  O. 
1,  1912  5. 

See  G.  C.  M.  Rec.  32043,  where  court  refused  to  permit  an  officer  to  sit  as  a  member 
because  he  did  not  have  "specific  orders." 

36.  Same — Convening  authority  should  not  detail  himself  as  a  member — It  is  decidedly 

improper  though  not  illegal  for  a  convening  authority  to  detail  himself  as  a  member 
of  a  summary  court-martial  and  then  subsequently  to  act  upon  the  case  in  the  capacity 
as  convening  authority.  Case  was  disapproved  where  this  was  done.  File  28287-389; 
26287-963.  Put  see  File  26287-1185,  where  department  did  not  disapprove. 

37.  Same — Proceedings,  findings,  and  sentence  disapproved  on  account  of  the  irregular 

manner  in  which  one  of  the  members  of  a  general  court-martial  was  appointed.  The 
fatal  irregularity  consisted  of  an  officer,  whose  presence  was  necessary  to  make  a  legal 
quorum,  sitting  as  a  member  on  orders  from  the  Bureau  of  Navigation  and  without 
authority  of  the  convening  authority.  C.  M.  O.  68, 1898. 

Where  an  officer  who  sat  as  president  of  the  general  court-martial  was  informed  of 
the  appointment  thereof  and  of  the  date  and  place  of  its  convening,  but  was  not 
specifically  designated  in  the  precept  as  a  member;  he  was  not  empowered  to  sit,  and 
his  participation  in  the  proceedings  invalidated  them.  File  10200-C3;  1007-04. 

38.  Same — Where  an  officer  sat  as  a  member  of  a  general  court-martial  and  signed  the 

record  despite  the  fact  that  no  order  appointing  him  as  such  had  been  issued  by  the 
convening  authority,  although  he  had  orders  signed  by  the  Chief  of  the  Bureau  of 
Navigation,  the  department  disapproved  the  case,  stating  that  the  court  was  ille- 
gally constituted,  and  the  conviction  of  the  accused  was  illegal.  C.  M.  O.  49,  1910, 0. 

39.  Same — In  a  case  where  a  member  sat  as  a  member  of  a  general  court-martial  although 

no  orders  had  been  issued  by  the  convening  authority  (the  department),  the  depart- 
ment disapproved  the  proceedings,  findings,  and  sentence,  since  the  tribunal  that 
tried  the  accused  was  not  a  lawfully  constituted  court-martial.  C.  M.  O.  21, 1905  it. 
Seealso  C.  M.  0. 114, 1901;  G.  C.  M.  Rec.  32043. 

40.  Same— Two  officers  received  orders  from  the  Bureau  of  Navigation  to  report  to  a 
president  of  a  general  court-martial  as  members.  They  sat  as  members  without  any 
authority  from  the  convening  authority  and  signed  the  sentence,  etc.  The  presence 
of  these  officers  was  not  necessary  to  form  a  legal  quorum.  The  department  held  that 
the  general  court-martial  was  illegally  constituted.  The  statutory  authority,  that 
general  courts-martial  may  be  convened  by  certain  persons,  can  not  be  extended 
beyond  its  terms,  and  the  court-martial  in  this  case  not  having  been  constituted  in 
accordance  with  statutory  requirements,  the  entire  proceedings  must,  therefore,  be 
regarded  as  illegal.  Accordingly  the  proceedings,  findings,  and  sentence  were  dis- 
approved. This  action  was  taken  solely  upon  the  ground  of  the  irregular  and  illegal 
constitution  of  the  court,  and  with  regret  that  the  accused  should  go  unpunished  for 
the  offense  of  which  he  had  pleaded  guilty.  C.  M.  O.  34, 1901.  See  also  C.  M.  O.  68, 
1898;  125,  1900,  1-2. 


COURT.  123 

41.  Same — A  general  court-martial  consisted  originally  of  seven  members.    One  officer 

was  detached  from  his  station  and  duty  by  the  convening  authority  (Secretary  of  the 
Navy)  and  another  by  order  of  the  Brigadier  General,  Commandant  of  the  United 
States  Marine  Corps.  Neither  officer  was  expressly  relieved  bv  the  convening  author- 
ity from  service  as  a  member  of  the  general  court-martial.  The  court-martial  then 
proceeded  to  the  trial  of  an  enlisted  man  with  five  members  present.  The  department 
approved  the  case  since  the  general  court-martial  was  not  reduced  below  the  minimum 
number  prescribed  by  law.  and  in  order  that  the  accused  might  not  go  entirely  unpun- 
ished for  the  offense  to  which  he  pleaded  guilty.  C.  M.  0. 125, 1900, 1-2. 

42.  Same— Upon  the  question  of  the  constitution  of  a  court-martial,  under  article  39  of  the 

Articles  for  the  Government  of  the  Navy,  the  convening  authority  is  charged  with 
discretion.  (Mullan  v.  U.  S.,  140  U.  S.  245.)  C.  M.  O.  125, 1900,  2. 

43.  Same — The  record  must  show  on  its  face  that  the  court-martial  is  properly  constituted. 

File  26251-5344.    See  also  CHARGES  AND  SPECIFICATIONS,  91. 

44.  Same— In  a  case  where  an  officer  sat  as  a  member  of  a  general  court-martial,  although 

no  orders  had  been  issued  by  the  convening  authority,  the  department  disapproved, 
since  the  tribunal  which  tried  the  accused  was  illegally  constituted.  C.  M.  O.  21, 
1905,3. 

45.  Same — The  convening  authority  alone  is  empowered  to  make  changes  in  the  constitu- 

tion of  a  general  court-martial.  C.  M.  O.  68, 1898;  155, 1897, 1;  125, 1900, 1-2;  34, 1901; 
49, 1910,  6.  See  also  CONVENING  AUTHORITY,  32. 

Orders  of  the  Bureau  of  Navigation  or  Major  General  Commandant  of  the  Marine 
Corps  can  not  relieve  an  officer  as  member  or  judge  advocate  of  a  general  court-martial. 
See  C.  M.  0. 125, 1900;  34, 1901. 

46.  Same^An  order  detaching  an  officer  from  duty  at  any  particular  station  does  not  per 

se  relieve  him  from  service  as  a  member  of  a  general  court-martial,  although  such  an 
order,  duly  issued  by  the  authority  which  convened  the  court-martial,  may  be  assumed 
as  intended  to  relieve  the  officer  concerned  from  duty  as  a  member  of  such  court- 
martial.  C.  M.  O.  125, 1900, 1. 

47.  Same— Where  a  judge  advocate  acted  as  such  in  a  trial  without  being  properly  ordered 

to  such  duty  by  the  convening  authority,  the  department  disapproved  the  proceedings, 
findings,  and  sentence.  C.  M.  0. 155, 1897, 1-2. 

48.  Same— A  precept  designated  two  officers  as  members,  while  in  the  list  of  members 

present  upon  the  convening  of  the  court  the  names  of  these  two  officers  did  not  appear, 
and  no  mention  is  made  of  their  absence  during  the  entire  proceedings  of  the  court, 
but  after  the  court  had  adjourned,  a  note  appeared  upon  the  record  signed  by  the 
judge  advocate,  accounting  for  their  absence.  For  this  and  other  irregularities  the 
department  disapproved.  C.  M.  O.  155, 1897, 1-2. 

49.  Same — Specific  orders  are  necessary  for  ordering  a  retired  officer  to  court-martial  duty 

C.  M.  O.  23, 1910, 5.   See  also  RETIRED  OFFICERS,  23. 

50.  Same— Summary  court-martial.    See  SUMMARY  COURTS-MARTIAL,  15. 

51.  Same— Deck  court.    See  DECK  COURTS,  10-12. 
5?.  Contempt  of  court.    See  CONTEMPT  OF  COURT. 

53.  Continuance.  See  ARMY,  13;  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17;  CONTINU- 

ANCES, COUNSEL,  20;  COURT,  134. 

54.  Convening  authority.    See  CONVENING  AUTHORITY. 

55.  Convening  of.   See   CONVENING   AUTHORITY,   27-32;    DECK  COURTS;   SUMMARY 

COURTS- MARTIAL. 

56.  Same— On  foreign  territory.    See  JURISDICTION,  53. 

57.  Same — Courts-martial,  other  than  naval  courts-martial,  can  not  be  convened  on  vessels 

of  the  regular  DJavy.    See  ARMY,  7;  NAVAL  MILITIA,  35, 38, 39. 

58.  Counsel  for  accused— Duty  of  court.    See  COUNSEL,  4, 19.  20, 31, 32. 

59.  Court-martial  orders— Should    be  consulted   in  adjudging  sentences— Members 

should  have  file  of— Officers  strictly  accountable  for  ignorance  of  instructions  con- 
tained in — Court-martial  orders  have  full  force  and  effect  as  regulations.  See  COURT- 
MARTLVL  ORDERS,  8, 15, 17, 18,  33,  35,  36,  37,  39,  40,  41,  42. 

60.  Crimination.    See  SELF-INCRIMINATION. 

61.  Criticism  of  court.    See  CRITICISM  OF  COURTS-MARTIAL. 

62.  Death  of  member — Before  signing  record.    See  MEMBERS  OF  COURTS-MARTIAL,  24. 

63.  Deck  courts.    See  DECK  COURTS. 

64.  Degree  of  criminality  Involved— Court  should  call  for  evidence  after  plea  of  guilty,  if 

necessary,  to  show  the  degree  of  criminality  involved.  See  DEGREE  OF  CRIMINALITY 
INVOLVED,  1. 

65.  Delegation  of  power — The  court  attempts  to  delegate  its  powers  and  duties  when  it 

allows  an  expert  witness  to  express  his  opinion  as  to  the  guilt  or  innocence  of  the 
accused.  C.  M.  0.  24, 1914,  22.  See  also  C.  M.  O.  49, 1915, 15;  OPINION,  15-17. 


124  COUET. 

66.  Depositions— Necessity  of  approval  by  court  and  convening  authority.    See  DEPO- 

SITIONS. 3. 

67.  Dereliction  of.    See  C.  M.  O.  25, 1915,  2.    See  also  COURT,  93. 

68.  Dissolved — After  a  general  court-martial  has  been  dissolved  further  proceedings  by  it 

in  revision,  pursuant  to  order  of  convening  authority,  are  wholly  void  and  without 
legal  effect.  Sentence  imposed  prior  to  dissolution  may  be  approved.  C.  M.  O.  4, 
1914, 1,  4.  See  also  C.  M.  O.  214, 1901, 1;  COURT.  71. 

69.  Same — Where  the  court  has  been  dissolved,  or  by  reason  of  any  Casualty  or  exigency  of 

the  service  can  not  practically  be  reconvened,  there  can,  of  course,  be  no  correction  of 
its  proceedings.  C.  M.  O.  7. 1911, 14. 

70.  Same — Where  a  court  had  been  dissolved  it  was  impossible  to  return  the  record  for 

revision.    C.  M.  O.  22, 1913,  6. 

71.  Same — Where  a  record  was  returned  to  the  convening  authority  by  the  reviewing 

authority,  directing  that  the  court  be  reconvened  for  the  purposes  of  reconsidering  the 
finding  and  sentence,  the  court  having  been  dissolved  oy  the  convening  authority 
before  the  receipt  of  the  record  from  the  reviewing  authority,  it  was  held  by  the  depart  - 
ment  that  the  court  haying  been  legally  dissolved,  it  could  not  legally  meet  to  recon- 
sider its  proceedings,  since  it  ceased  to  exist  as  a  legal  body  when  dissolved  and  an 
order  subsequently  issued,  revoking  the  order  dissolving  the  court  will  be  futile  and 
ineffective.  C.  M.  O.  7, 1911, 14.  See  also  COURT,  68. 

72.  Documents — Court  should  not  permit  documents  or  certified  copies  of  same  to  be 

appended  to  record  unless  they  have  been  offered  in  evidence.  See  EVIDENCE, 
DOCUMENTARY.  45. 

73.  "  Due  form  and  technically  correct"— Means  that  the  charge  and  specification  are  in 

the  form  required,  and  the  facts  alleged  in  the  specifications  constitute  the  offenses 
set  forth  in  the  charges.  That  the  specification  supports  the  charge.  C.  M.  O.  43, 
1906,  2.  See  also  COVET.  14;  FILE!  26251-12159,  p.  17. 

74.  Evidence — May  be  introduced  out  of  usual  order  for  satisfactory  cause  at  discretion  of 

court.    See  EVIDENCE,  89-90. 

75.  Same— Court  should  not  "originate"  evidence.    C.  M.  O.  216, 1901,  2;  19, 1915,  3. 

76.  Same — Court  should  call  for  better  evidence  if  it  is  available.    C.  M.  O.  37, 1909,  4. 

77.  Same — Misinterpretation  by  court.    C.  M.  O.  37, 1915, 10. 

78.  Same — By  receiving  incompetent  evidence  the  court  permits  a  miscarriage  of  justice 

and  the  accused  to  escape  punishment.    C.  M.  O.  37, 1909,  6.    See  also  EVIDENCE,  75. 

79.  Same — Courts-martial  in  their  proceedings  should  be  governed  by  the  rules  of  evidence 

as  laid  down  in  the  United  States  courts.    See  EVIDENCE,  106-109. 

80.  Evidence  in  extenuation — Procedure  when  evidence  to  extenuation  is  inconsistent 

with  plea  of  "guilty."    C.  M.  O.  30, 1910,  4.    See  also  EVIDENCE.  51. 

81.  Exception  or  protest — Neither  the  judge  advocate,  the  accused,  nor  any  member  of 

the  court,  has  any  right  to  enter  an  exception  or  protest  on  the  record.  See  EXCEP- 
TIONS, 2,  3. 

82.  Executive  branch  of  the  Government — A  naval  court-martial  is  a  branch  of  the 

executive,  not  of  the  judicial,  department  of  the  Government.    See  COURT,  113. 

83.  Facts— Court  as  judge  of.    See  COURT,  103. 

84.  Facts  in  dispute.    See  CRITICISM  OF  COURTS-MARTIAL,  14. 

85.  Facts  not  in  dispute.    See  CRITICISM  OF  COURTS-MARTIAL,  14. 

86.  Finding— Court  should  not  eliminate  essential  gravamen  from  specification  in  its 

finding  and  then  find  guilty  of  charge.  C.  M.  O.  41, 1903,  2;  29,  1909,  2;  17,1910,  4; 
4, 1913,  54.  See  also  C.  M.  0. 146,  1900,  2;  12, 1904,  3. 

87.  Same — Incorrect  finding  due  to  ignorance  of  law.    C.  M.  O.  4,  1913,  13. 

88.  Same— Court  should  not  eliminate  words  in  specification  so  as  to  make  specification 

incomplete.    C.  M.  0. 12, 1904,  3;  29, 1909,  2. 

In  one  case  the  department  stated  that  "such  a  conclusion  or  finding  of  a  court  is 
beyond  understanding  and  unreasonable."  C.  M.  O.  49, 1910, 13. 

Rfl.  Foreign  country— Courts-martial  convened  in  foreign  countries.   See  JURISDICTION,  53. 

90.  Forms  of  Procedure — Naval  courts-martial  are  required  to  conform  to  the  approved 

Forms  of  Procedure.    C.  M.  0. 10, 1897, 3;  4, 1913, 56;  26, 1910,  3;  28, 1913.  7;  51, 1914, 1. 

In  one  case  the  department  called  attention  to  the  court's  failure  to  follow  strictly 

the  Forms  of  Procedure,  and  cited  the  order  of  the  Secretary  of  the  Navy  on  page  3 

of  the  Forms  of  Procedure,  1910.    C.  M.  O.  17, 1910, 10. 

The  department  stated,  "It  is  further  to  be  noted  that  the  remarks  made  by  the 
court  in  revision,  apparently  intended  to  justify  the  inadequate  sentence  originally 
imposed,  were  highly  irregular  and  unauthorized  by  the  approved  Forms  of  Pro- 
cedure to  which  naval  courts-martial  are  required  to  conform."  C.  M.  O.  28, 1913,  7 


COURT.  125 

Naval  courts-martial  should  carefully  follow  the  procedure  as  established  in  Navy 
Regulations,  Forms  of  Procedure,  and  Court-Martial  Orders,  by  which  they  are 
governed,  never  at  any  time  losing  sight  of  the  fact,  as  expressly  stated  in  the  depart- 
ment's order  promulgating  the  Forms  of  Procedure,  1910,  that  "deviation  therefrom 
may  be  fatally  irregular  and  erroneous."  (Forms  of  Procedure,  1910,  p.  3.)  C.  M.  O. 
51, 1914,  1.  Seealso  C.  M.  O.  49, 1915,  9. 

Full  force  and  effect  as  regulations.    C.  M.  O.  12, 1911. 
31.  General  courts-martial — Who  may  convene.    See  CONVENING  AUTHORITY,  27-32. 

92.  Same— Constitution  or  composition  of.    See  COURT,  33-35,37-49. 

93.  "Guilty  In  a  less  degree  than  charged,"  plea  of— Court  should  reject  and  try 

accused  for  offense  as  charged.  See  GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  9-11. 
The  court  and  the  judge  advocate  are  guilty  of  a  dereliction  of  their  duties  when 
the  latter  recommends  and  the  former  accepts  a  plea  of  guilty  in  a  less  degree  than 
charged  when  witnesses  are  available  to  prove  the  offense  as  charged.  C.  M.  O.  10, 
1912,  8. 

94.  Holiday— Court  may  not  adjourn  over  holiday  without  permission  of  convening  au- 

thority.   See  ADJOURNMENTS  OF  COURTS-MARTIAL,  1,  2,  3. 

95.  Hypotheses— Court  not  required  to  indulge  in  hypotheses  to  supply  evidence  which 

it  was  duty  of  accused  to  supply.    C.  M.  O.  39, 1913, 13.    See  also  COURT,  32. 

96.  niegally  constituted.   See  COURT,  37, 38,  39,  40,  41,  44;  DECK  COURTS,  19,  26. 

97.  Joinder,  trials  In.    See  JOINDER,  TRIALS  IN. 

98.  Judge  advocate— Not  to  usurp  functions  of  court.    See  JUDGE  ADVOCATE,  123-126. 

99.  Same— Court  should  not  usurp  functions  of  judge  advocate.    C.  M.  O.  81,  1897,  2. 

Seealso  O.  C.  M.  Rec.  29764;  JUDGE  ADVOCATE,  61. 

100.  Same — Censure — Court  should  not.    See  JUDGE  ADVOCATE,  60. 

101.  Same — Court,  adviser  to.    See  JUDGE  ADVOCATE,  49-59. 

102.  Same— "Closed  court"— Should  not  be  present.    See  JUDGE  ADVOCATE,  105. 

103.  Judge  of  fact — The  court,  in  its  capacity  of  jury,  is  the  sole  judge  of  fact.    G.  C.  M. 

Rec.  24745;  File  26251-9649. 

104.  Jurisdiction— A  naval  court-martial  is  a  court  of  limited  jurisdiction.    C.  M.  O.  49, 

1910, 9;  14,  1910, 8;  15, 1910, 9,  49-59.  See  also  COURT,  82,  112;  EVIDENCE,  21;  JURIS- 
DICTION 29,  73. 

Jurisdiction  over  retired  officers.  See  JURISDICTION,  114;  RETIRED  OFFICERS,  3-5, 
22,  33,  60,  61,  71,  74. 

Over  resigned  officers.    See  JURISDICTION,  113. 

Jurisdiction  of  naval  C9urts-martia]  in  general.    See  JURISDICTION,  IS,  26-39. 

105.  Same — Convened  in  foreign  countries.    See  JURISDICTION,  53. 

106.  Juror— Capacity  of  members  as  jurors.    C.  M.  O.  94,  1905,  1.    See  also  6  Op.  Atty. 

Gen.,  200, 206;  JURORS,  1. 

107.  Jury— The  court  in  its  capacity  of  jury  has  the  power  of  determining  the  weight  to 

be  given  to  the  testimony  of  the  accused  and  consider  it  in  coming  to  its  findings. 
File  26251-9649. 

108.  Law— Misapplication  of.  by  court.    C.  M.  O.  37, 1915, 10. 

109.  Same— Court-martial  should  not  "make  law."    See  COURT,  113. 

110.  Same— Duty  to  enforce  law.    C.  M.  O.  4, 1913, 6. 

111.  Leniency  of  court  (C.  M.  0. 14, 1915, 1)— "Unwarranted  leniency."    (File  26262-2610, 

Sec.  Navy,  July  21, 1916).    See  CRITICISM  OF  COURTS-MARTIAL,  32. 

112.  Limited  Jurisdiction— A  naval  court-martial  is  a  court  of  limited  jurisdiction.    See 

COURT,  104. 

113.  Making  law— It  is  not  for  a  naval  court-martial,  which  is  a  branch  of  the  executive, 

and  not  of  the  judicial,  department  of  the  Government,  to  make  law  or  attempt  to 
blaze  the  way  in  the  direction  of  reforms,  if  they  be  "reforms,"  which  have  oeen 
specifically  rejected  by  the  Federal  courts.  C.  M.  O.  24, 1914,  19.  Seealso  C.  M.  O. 
1,  1914,8;  14,1914,5;  CRITICISM  OF  COURTS-MARTIAL,  20. 

114.  "Marine  summary  court-martial"— There  is  no  tribunal  known  to  the  law  as  a 

"marine  court-martial."    J^etter,  Sec.  Navy,  July  5, 1877. 

115.  Members.    See  MEMBERS  OF  COURTS-MARTIAL. 

116.  Motion  to  strike  out  evidence— Court  should  rule  on.    C.  M.  O.  49,  1915,  12. 

117.  Nature  of— The  essence  of  all  military  proceedings  is  summary  and  vigorous  action, 

since  the  certainty  of  prompt  punishment  is  more  conducive  to  discipline  than  pun- 
ishment deferred  long  after  tne  offense.  Naval  courts-martial  are  no  part  of  the 
judiciary  of  the  United  States,  are  not  even  courts  in  the  full  sense  of  the_  term ,  but 
are,  in  peace  as  well  as  in  war,  simply  bodies  of  officers  of  the  naval  service  ordered 
to  investigate  accusations,  arrive  at  facts,  and  where  just  recommend  a  punishment. 
ID  the  absence,  therefore,  of  statutory  direction  they  can  scarcely  be  held  bound  by 


126  COURT. 

the  same  strict  adherence  to  common-law  rules  as  are  the  true  courts  of  the  United 
States;  and,  upon  trials,  they  may  properly  be  allowed  to  pursue  a  more  liberal 
course  in  regard  to  the  admission  of  testimony  and  the  examination  of  witnesses  than 
do  habitually  the  civil  tribunals.  Their  purpose  is  to  do  justice,  and  if  the  effect  of  a 
technical  rule  is  found  to  be  to  exclude  material  facts  or  otherwise  obstruct  a  full 
investigation  the  rule  may  and  should  be  departed  from.  (See  WINTHROP,  473.)  13 
J.  A.  G.,  59-60;  File  6465-03,  J.  A.  Gv  July  22,  1903,  p.  10.  See  also  COURT,  127. 

118.  Oath— General  court-martial— Disclosing  vote,  opinion  and  sentence.    See  CRITICISM 

OF  COURTS-MARTIAL,  22,35;  OATHS,  20,  47. 

Summary  court-martial— Disclosing  vote,  opinion  and  sentence.    See  OATHS,  47. 

119.  Same — Taken  by  members  of  general  court-martial.    See  OATHS,  20. 

120.  Same — Until  a  court  is  duly  sworn  according  to  law  it  is  incompetent  to  perform 

any  judicial  act,  except  to  near  and  determine  challenges  against  its  members.  C. 
M.  O.  29, 1914.3. 

121.  Objection— Where  a  member  is  a  witness  and  an  objection  to  a  question  is  made  he 

should  only  resume  his  status  as  a  member  to  act  on  the  objection  when  it  is  necessary 
to  constitute  a  quorum  of  five.  C.  M.  O.  49,  1915,  12,  15.  See  also  MEMBERS  OF 
COURTS-MARTIAL,  52. 

122.  Obstinate.    C.  M.  O.36, 1905, 3;  14,1914,5.  See  also  CRITICISM  OK  COURTS-MARTIAL,  16, 

35,  48. 

123.  Obtundlty.    See  CRITICISM  OF  COURTS-MARTIAL,  44,  48. 

124.  "One-man  court" — A  commanding  officer  is  not  a  "one-man  court."    C.  M.  O.  7, 

1914, 10.12.    See  also  COURT.  27;  COMMANDING  OFFICERS,  14. 

125.  "One-officer  court"— A  deck  court  is  a  "one-officer  court. "   C.  M.  0.  7, 1914, 11. 

126.  "Open  court" — The  sessions  of  a  general  court-martial  shall  be  public,  and  in  general 

all  persons  except  such  as  may  be  required  to  give  evidence  shall  be  admitted.  How- 
ever, in  cases  where  it  may  seem  desirable  that  certain  classes  of  spectators,  such  as 
women,  children,  and  others,  should  be  excluded  during  the  trial,  the  court,  when 
convened  by  the  Secretary  of  the  Navy,  or  the  convening  authority  in  other  cases, 
should  communicate  with  the  Secretary  of  the  Navy  requesting  permission  therefor 
and  giving  a  full  statement  of  the  reasons.  (See,  in  this  connection,  Navy  Regula- 
tions, 1913,  R-761;  G.  C.  M.  Rec.  No.  21478a;  File  26504-115,  J.  A.  G..  Jan.  24,  1911) 
C.  M.  O.  51, 1914,  3.  See  also  File  26504-115,  J.  A.  G.,  Jan.  24, 1911,  which  holds  that 
the  sessions  of  a  naval  general  court-martial  should  be  public. 

127.  Same— While  a  court-martial  may  technically,  within  its  legal  right,  close  its  doors  to 

the  public  during  the  trial  of  an  accused,  such  a  procedure  is  contrary  to  authority  of 
textwriters.  the  spirit  of  the  Constitution,  and  to  the  usual  practice  of  the  Federal 
courts.  File 26504-115,  J.  A.  G.,  Jan.  24, 1911. 

The  statutes  regulating  the  course  of  procedure  in  military  courts  show  that,  in 
contemplation  of  Congress,  these  courts  stand  on  the  same  footing  as  other  judicial 
tribunals  of  the  country.  Their  sittings ,  for  example ,  are  free  to  the  attendance  of  the  pub- 
lic, like  those  of  other  courts.  (11  Op.  Atty.  Gen.  137, 141.)  Again,  the  Sixth  Amend- 
ment to  the  Constitution  provides  that  the  accused  shall  enjoy  a  speedy  and  public 
trial.  While  it  seems  evident  that  this  constitutional  provision  does  not  refer  to  trials 
by  court-martial,  yet  it  is  indicative  of  the  view  which  Congress  took  of  the  matter 
in  framing  the  amendment.  "All  trials  before  courts-martial,  like  those  in  the  civil 
courts  of  judicature,  are  conducted  publicly  and  with  open  doors."  (Macomb,  29.) 
"  Deliberations  of  the  court  takes  place  always  with  closed  doors.  At  other  times  it 
is  open  to  the  public,  military  or  otherwise,  with  such  restrictions  as  the  convenience 
of  the  court  and  the  parties  and  the  capacity  of  the  room  may  dictate.  (De  Hart,  94.) 
In  this  connection  see  also  Harwood.  65;  Coppee,  50;  Army  Digest,  1902,  par.  1012. 
In  civil  courts  it  has  been  held  that  where  the  evidence  is  of  a  peculiarly  indecent 
and  vulgar  character  the  court  may  exclude  all  parties  from  the  room  who  are  not 
necessary  for  conducting  the  trial.  (12  Cyc.  520n;> 

The  exclusion  of  persons  in  certain  cases  was  held  to  be  contrary  to  the  spirit  if  not 
to  the  letter  of  the  Constitution,  and  in  the  case  of  courts-martial  it  is  certainly  con- 
trary to  a  practice  that  has  extended  uniformly  so  far  as  precedents  have  been  discov- 
ered, for  very  many  years.  In  a  Federal  case  where  the  subject  was  considered  (United 
States  v.  Buck,  24  Fed.  Cas.  No.  14680)  the  syllabus  states  as  follows:  "A  court  of  the 
United  States  ought  never  to  sit  with  its  doors  of  entrance  closed,  so  as  to  prevent 
publicity  to  its  proceedings."  In  that  decision  the  court  recognized  that  for  its  own 
protection  certain  persons  as  a  class,  but  not  as  individuals,  might  be  excluded  as  a 
prudential  measure  to  safeguard  the  administration  of  justice."  File  26504-115, 
J.  A.  G.,  Jan.  24, 1911. 

A  person  who  was  to  be  a  witness  desired  to  have  his  counsel  present  during  a  trial 
at  which  he  was  later  to  testify.  Counsel  for  the  accused  objected,  and  the  court  ruled 


COUET.  127 

as  follows:  "The  court  decides  that  the  witness  can  not  be  present  either  in  person 
or  by  counsel,  nor  can  he  address  the  court  in  any  way."  The  counsel  for  the  witness 
thereupon  withdrew.  The  department  approved  this  procedure.  G.  C.  M.  Rec.  No. 
21478a. 

128.  Same — Accused  should  be  present.    See  ACCUSED,  1-9. 

129.  Opinion — Court  should  not  allow  witnesses  to  state  directly  their  opinion  upon  the 

specific  question  whether  or  not  upon  the  evidence  the  accused  is  guilty  or  innocent. 
See  OPINION,  15-17. 

130.  Orders— As  members  or  judge  advocates.    See  CONVENING  AUTHORITY,  32;  COURT, 

35  37=49 

131.  Originating  evidence.    See  COURT,  75. 

132.  Pardon — Court  can  not  pardon  oSenses  or  award  a  nominal  punishment  equivalent 

to  a  pardon.  C.  M.  O.  89,  1897,  2;  132,  1897,  2.  See  also  ADEQUATE  SENTENCES,  5; 
PARDONS,  9. 

133.  Physical  condition  of  accused— It  is  not  within  the  province  of  general  courts- 

martial  to  determine  the  physical  condition  of  an  accused  and  his  ability  to  serve 
sentence.  These  are  not  matters  for  it  to  consider.  The  law  making  it  the  duty  of 
naval  courts-martial  to  adjudge  punishment  adequate  to  the  nature  of  the  offense 
permits  no  allowances  being  made  because  of  a  man's  physical  disability.  If  an  ac- 
cused's physical  condition  is  such  as  to  warrant,  in  the  opinions  of  the  members,  the 
exercise  of  special  clemency  the  members  of  the  court  might  recommend  him  to 
clemency  or  the  medical  officers  at  the  prison  where  the  accused  is  ordered  confined 
might  take  suitable  action.  C.  M.  0. 49, 1910, 12-13.  See  also  CLEMENCY,  41, 42. 

134.  Postponement— Where  an  accused  states  he  is  not  ready  for  trial  giving  his  reasons 

for  stating  that  he  wanted  to  secure  the  testimony  of  a  certain  witness  and  also  desired 
to  secure  certain  documentary  evidence,  the  court  should  grant  a  postponement  of 
the  trial,  unless  it  be  shown  to  have  been  impracticable  to  accede  to  such  a  request, 
and  where  it  is  practicable  such  noncompliance  with  Article  XI  of  the  amendments  to 
the  Constitution  of  the  United  States  would  constitute  a  grave  error.  C.  M.  O.  17, 
1910, 8-10.  See  also  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17;  TRIALS,  7. 

135.  Precept— Convening  authority  may  grant  court  permission  to  adjourn  over  holidays 

in  precept.    C.  M.  O.  51, 1914, 4.    See  also,  ADJOURNMENT  OF  COURTS-MARTIAL,  1,  2. 
Precept  is  sufficient  authority  for  officers  to  sit  as  members  of  general  courts-martial, 
martial.    C.  M.  O.  28, 1910, 5.    See  also  PRECEPTS,  12,15,  21. 

136.  President  of  a  general  court-martial— Absent  on  leave  without  knowledge  or  per- 

mission of  convening  authority.    See  MEMBERS  OF  COURTS-MARTIAL,  4. 

137.  Previous  convictions.    See  PREVIOUS  CONVICTIONS. 

138.  Public  trial.   See  COUET,  126, 127;  PUBLIC  TRIAL. 

139.  Question  by  member— If  rejected  recorded  as  "Question  by  a  memoer,"  and  not 

as  "Question  by  court."  C.  M.  O.  17, 1910,  7;  19,  1915,  1,  3.  See  also,  MEMBERS  OF 
COURTS-MAETIAL,  40;  WITNESSES,  40. 

140.  Quorum— An  absence  of  a  legal  quorum  does  not  prevent  the  entering  of  a  nolle 

prosequi  by  the  prosecution.    File  26251-8038:7. 

141.  Same— Procedure  when  court  is  reduced  below.    File  26504-176;  G.  C.  M.  Rec.  26948. 

142.  Same — Not  practicable  for  court  to  be  reconvened  as  court  was  reduced  below  legal 

minimum.    See  C.  M.  O.  5, 1914, 6;  29, 1914, 10;  49, 1915, 12. 

143.  Reconvened— Court  could  not  be  reconvened  as  membership  was  reduced  below 

legal  minimum.    C.  M.  0. 5, 1914,  6;  29, 1914, 10;  49, 1915, 12. 

144.  Same — A  revision  by  a  court  reconvened  after  dissolution  is  of  no  legal  effect.    C.  M.  O. 

4, 1914, 1.    See  also  COURT,  68-71. 

145.  Same— The  jud_ge  advocate  introduced  and  the  court  received  evidence  of  previous 

convictions  which  was  clearly  inadmissible.  As  this  evidence  may  have  influenced 
the  court  in  adjudging  its  sentence  the  court  was  reconvened  for  the  purpose  of  recon- 
sidering the  sentence,  excluding  during  such  reconsideration  the  above-mentioned 
evidence  of  previous  convictjons.  C.  M.  0. 17, 1910,  6. 

146.  Same — Cases  where  the  court  could  not  oe  reconvened  because  of  exigencies  of  the 

service  or  because  it  was  impracticable.  C.  M.  O.  49, 1910, 13;  23, 1913, 15;  32, 1913,  2; 
39, 1913, 14;  4, 1914, 1, 4.  See  also  CONVENING  AUTHORITY,  51, 52. 

147.  Reconvening  of  itself — A  general  court-martial  in  the  case  of  an  officer  reconvened 

the  day  after  the  completion  of  the  trial  at  the  call  of  the  president  of  the  court  and 
reconsidered  the  sentence  because  of  inadequacy.  The  record  had  not  been  sent  to 
the  convening  authority.  The  court  revoked  its  former  sentence  and  substituted  a 
new  one.  Convening  authority  (station)  approved  without  comment  and  the  depart- 
ment permitted  the  procedure  to  stand  without  comment.  G.  C.  M.  Rec.  27923. 
See  also  1  Op.  Atty.  Gen.  297;  G.  C.  M.  Rec.  9427  (1901). 

50756°— 17 9 


128  COURT. 

148.  Same— Accused  was  tried  by  general  court-martial,  found  guilty,  and  sentenced. 

The  court  then  signed  the  record  and  proceeded  with  another  case.  On  the  following 
day,  however,  the  court  met  at  the  call  of  the  president,  and,  when  cleared  on  the 
request  of  a  member,  reconsidered  the  case  of  the  accused ,  revoked  its  former  sentence, 
and  in  lieu  thereof  sentenced  him  to  three  years'  confinement,  dishonorable  dis- 
charge, etc.  (Former  sentence  was  one  year's  confinement,  dishonorable  discharge, 
etc.) 

The  department's  action  thereon  was  expressed  as  follows: 

"The  proceedings  in  reconsideration  in  this  case,  without  any  apparent  reason, 
show  lack  of  proper  deliberation  on  the  first  sentence.  This  man  has  already  been 
confined  for  a  month  and  placed  in  irons  *  *  *.  The  sentence  is  disapproved  and ' ' 
the  accused  restored  to  duty.  C.  M.  0. 8, 1908. 3-4. 

149.  Same — Summary  court-martial — The  record  shows  that  the  trial  was  finished  and 

that  the  court  found  the  specification  "proved."  but  the  record  also  shows  that  the 
court  decided  to  reconvene  itself  to ' '  reform  its  finding  and  sentence,  the  court  having 
been  informed  by  the  recorder  of  an  error  in  the  name  of  the  accused  as  stated  in  the 
specification  and  also  in  the  evidence." 

Such  procedure  was  irregular  and  Indicated  a  lack  of  preparation  of  the  case  by  the 
recorder  and  carelessness  on  the  part  of  the  court  in  not  noticing  the  error  referred 
to  at  the  proper  time  and  before  reaching  its  finding  and  rendering  judgment.  Article 
1694,  paragraph  2,  U.  S.  Navy  Regulations,  1909  [Navy  Regulations,  1913,  R-620  (2)) 
provides,  that  after  the  proceedings  and  trial  have  been  completed  and  recorded,  they 
shall  be  signed  by  the  senior  member  and  the  recorder,  and  transmitted  to>  the  con- 
vening authority.  Paragraph  1  [R-52]  of  the  above  article  states  that  the  sentence  of 
the  court  shall  be  signed  by  all  the  members  and  the  recorder  (see  also  Navy  Regula- 
tions, 1913.  R-810).  C.M.O.  15,1910,12.  Seealso  File 26287-494;  10  p.  Atty.Gen.297. 

150.  Record— Signing  of.    See  COURT,  175;  MEMBERS  OF  COURTS-MARTIAL,  12,  24,  48. 

151.  Same — Members  as  well  as  judge  advocate  are  responsible  for  errors  in  record.    See 

CRITICISM  OF  COURTS-MARTIAL,  13, 28, 35,  40;  RECORD  OF  PROCEEDINGS,  53, 54. 

152.  Same — Binding  of.    See  BINDING  OF  COURT-MARTIAL  RECORDS. 

153.  Recorder  of  deck  court— Nature  of.    See  DECK  COURTS,  48,  58. 

154.  Recorder  of  summary  court-martial — Not  to  usurp  functions  of  court.    C.  M.  O. 

42,  1909,  15-16. 

155.  Refusing  to  correct  errors.    See  CRITICISM  OF  COURTS-MARTIAL,  15, 19,  20,  35,  36, 

38,  48. 

156.  Relief— From  duty  as  member.    See  CONVENING  AUTHORITY,  32;  COURT,  45,  46. 

157.  Remarks  of  court — Justifying  an  inadequate  sentence  were  highly  irregular  and 

unauthorized.    C.  M.  O.  28, 1913,  7. 

158.  Reprimanded  for  leniency.    See  ADEQUATE  SENTENCES,  3, 10;  COURT,  111;  CRITI- 

CISM OF  COURTS-MARTIAL,  55. 

159.  Revealing  vote.   See  CRITICISM  OF  COURTS-MARTIAL,  22, 36;  OATHS,  47. 

160.  Reviewing  authorities — Power  of  reviewing  and  revising  authorities  over  naval 

courts-martial.    See  REVIEWING  AUTHORITY,  15;  REVISION,  24. 

161.  Revision.   See  REVISION. 

162.  Secrecy  of  trials.    See  COURT,  126, 127, 171. 

163.  Sentence — Law  imposes  on  courts-martial  duty  to  adjudge  adequate  sentences  in 

cases  of  convictions.    See  ADEQUATE  SENTENCES. 

164.  Same — Court  assumes  prerogatives  of  reviewing  authority  by  adjudging  an  inade- 

quate sentence.  C.  M.  O.  42. 1909,  8;  15, 1910,  6;  7, 1912,  3;  8,  1912,  3;  16, 1912,  3;  1, 
1913,  7;  9, 1913,  3;  16, 1913,  3;  28, 1913,  6. 

165.  Same— "Ill-judged  leniency"  of  the  court.    C.  M.  O.  47, 1906. 

166.  Same— Illegal  to  exercise  power  of  mitigation  in  sentence.    C.  M.  0. 16, 1912, 3. 

167.  Same — Court  should  not  exercise  power  of  pardon  in  sentence.    See  PARDONS,   9. 

168.  Same — Court  should  not  prescribe  in  its  sentence  how  or  when  such  sentence  shall  be 

executed.  Such  matters  are  properly  within  the  province  of  the  convening  authority. 
C.  M.  O.  60, 1892;  36, 1914, 3, 4.  See  also  C.  M.  O.33, 1914,5;  SENTENCES,  87. 

It  is  not  competent  for  a  court-martial  to  sentence  a  man  to  be  released  and  restpred. 
to  duty  upon  the  expiration  of  the  peri9d  of  confinement.  C.  M.  O.  37, 1{X>9,  3. 

169.  Same — The  law  makes  a  sentence  of  dismissal  mandatory  in  Army  where  officer  is 

convicted  of  "Conduct  unbecoming  an  officer  and  a  gentleman,"  and  a  court-martial 
composed  of  naval  officers  should  not  refuse  to  accept  for  the  service  of  which  they  are) 
members  the  standard  fixed  by  law  to  which  officers  of  the  Army  must  conform  in 
order  to  retain  their  commissions.  C.  M.  0. 49, 1915, 23.  Seealso  CONDUCT  UNBECOM- 
ING AN  OFFICER  AND  A  GENTLEMAN,  6. 

170.  Service — Service  upon  naval  courts-martial  is  strictly  recognized  by  statute  as  a  duty  of 

the  very  highest  order,  as  is  witnessed  by  the  provision  embodied  in  A.  G.  N.46;  to  thq 


COURT.  129 

effect  that  no  member  of  a  general  court-martial  shall,  after  the  proceedings  are  begun, 
absent  himself  therefrom,  except  in  case  of  sickness,  or  of  an  order  to  go  on  duty  from 
a  superior  officer,  on  pain  of  being  cashiered.  C.  M.  0. 125, 1900,  2. 

171.  Sessions  of — Meeting  at  unusual  hours— A  general  court-martial  commenced  the 

trial  at  5.15  p.  m.  and  completed  the  trial  on  the  same  day.  The  record  disclosed 
many  irregularities  and  errors,  and  the  department  stated: 

The  court  was  not  informed  by  the  convening  authority  that  this  case  was  one  of 
extraordinary  urgency  requiring  to  be  tried  at  unusual  hours  or  in  undue  haste. 
With  reference  to  courts-martial  in  the  Army,  Congress,  by  the  94th  article  of  war 
(which  was  in  effect  until  March  2, 1901)  provided  that  "proceedings  of  trials  shall  be 
carried  on  only  between  the  hours  of  eight  in  the  morning  and  three  in  the  afternoon, 
excepting  in  cases  which,  in  the  opinion  of  the  officer  appointing  the  court,  require 
immediate  example. "  And  a  similar  statute  has  been  in  effect  in  England  from  a  very 
early  period.  While  there  is  no  such  law  with  reference  to  our  Navy,  the  reasons  gov- 
erning such  enactments  are  equally  applicable  thereto.  Thus,  the  object  of  the  law, 
as  stated  by  the  Attorney  General  (11  Op.  Atty.  Gen.  141)  was  "to  guard  against 
improper  secrecy."  In  Winthrop's  Military  Law  (Vol.  1,  p.  421)  the  purpose  of  the 
enactment  was  stated  to  be  "  to  prevent  the  daily  attendance  upon  the  trial  from  being 
too  protracted  i 
afford  an  oppor 

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visions  of  the  English  statutes  limiting  the  hours  of  trial  by  courts-martial: 

"  The  clear  intention  of  the  article  is,  to  prevent  the  possibility,  except  under  any 
urgent  circumstances,  of  the  qverfatigue  of  the  mind,  by  which  the  interests  of  the 
seryice,  or  the  due  administration  of  justice,  might  be  affected.  Though  at  the  assizes, 
which  are  held  twice  a  year,before  the  judges  of  assize,  it  is  not  uncommon  to  continue 
their  sittings  till  a  very  late  hour,  to  insure  an  uninterrupted  course  of  justice;  still, 
there  is  a  wide  distinction  between  such  cases,  and  those  of  a  similar  nature,  whenever 
they  fall  under  the  cognizance  of  a  general  court-martial — in  the  former,  there  is  fre- 
quently a  popular  feeling  against  the  accused — publications  are  issued  from  the  press, 
and ,  therefore,  it  becomes  right  and  proper,  not  to  suffer  any  delay  to  take  place  in  the 
administration  of  justice.  With  respect  to  a  general  court-martial,  the  same  causes  do 
but  rarely  exist;  added  to  which,  those  who  are  not  used  to  a  sedentary  life,  are  not  so 
well  fitted  to  give  a  steady  attention  to  any  subject,  which  requires  a  constantly 
patient  and  watchful  vigilance  of  the  mind.  It  is,  therefore,  the  interests  of  general 
practice,  that  have  given  a  limit  to  the  duration  of  the  sittings  of  courts-martial." 
(p.  377). 

The  present  ease  strikingly  exemplifies  the  consequences  resulting  from  attempts  to 
conduct  a  trial  by  general  court-martial  in  undue  haste,  and  at  unusual  hours. 
C.  M.  0. 27, 1913, 11.  See  also  CRITICISM  OF  COUKTS-MARTIAL,  66;  TRIALS,  27.  C.  M.  O. 
49, 1910, 11. 

172.  Same — Temporary  adjournments  over  holidays,  etc.    See  ADJOURNMENTS  OF  COURTS- 

MARTIAL.  1,  2. 

173.  Same — The  clause  of  A.  G.  N.  45  enjoining  a  daily  session  seems  to  be  directory  in 

character  rather  than  mandatory.    C.  M.  O.  27, 1898, 1. 

174.  Same — An  accused  was  charged  with  "Scandalous  conduct  tending  to  the  destruction 

of  good  morals,"  the  specification  thereunder  alleging  that  the  accused,  while  judge 
advocate  of  a  general  court-martial,  "in  session  at  said  yard,"  was  under  the  influence 
of  intoxicants.  He  pleaded  guilty  except  to  the  words  "in  session  at  said  yard." 
The  department  held  that  although  the  court  was  not  actually  meeting  at  the  time 
alleged  it  was  "in  session"  within  the  definition  of  the  expression,  and  that  a  court 
is  "in  session  "during  "temporary  intervals  of  adjournment."  C.  M.  0. 104, 1896,  4. 

175.  Signatures  of  members — The  omission  of  a  signature  of  one  of  the  members  of  a 

naval  court-martial  to  the  findings  and  sentence  will  have  no  effect  provided  a  legal 
quorum  remained  and  signed.  G.  C.  M.  Rec.  24534. 

176.  Statement  of  accused.    See  STATEMENT  OF  ACCUSED. 

177.  Statutory — There  can  be  no  plainer  expression  of  the  law  than  that  in  the  case  of  a 

court-martial,  their  authority  is  statutory,  and  the  statutes  under  which  they  proceed 
must  be  followed  throughout.  The  facts  necessary  to  show  their  jurisdiction  must  be 
stated  positively.  File  3980-650.  J.  A.  G.,  July  10, 1911,  p.  4. 

178.  Stubborn.    See  CRITICISM  OF  COURTS-MARTIAL.  15, 19,  20,  35,  36,  38,  48. 

179.  Sufficiency  of  evidence,    See  CRITICISMS  OF  COURTS-MARTIAL,  14. 


130  COURT. 

180.  Summary  courts-martial.    See  SUMMARY  COURTS-MARTIAL. 

181.  Technicalities — Should  not  be  introduced  into  naval  court-martial  procedure.    See 

COMMON  LAW,  12. 

182.  Trial— Conducted  in  undue  haste.    See  COURT.  171;  CRITICISM  OF  COURTS-MARTIAL, 

6C. 

183.  Undisputed  facts.    See  CRITICISM  OF  COURTS-MARTIAL.  14. 

184.  Same— Duty  of  court  as  to  finding.    C.  M.  O.  43, 1906.    See  also  COURT,  80-88. 

185.  Usurp — Court  shall  not  usurp  functions  of  reviewing  authority.    See  ADEQUATE 

SENTENCES,  3-20;  CRITICISM  OF  COURTS-MARTIAL. 

186.  Same — Court  shall  not  usurp  functions  of  judge  advocate.    See  COURT,  99;  JUDGE 

ADVOCATE,  61. 

187.  Same — Court  should  not  usurp  functions  of  convening  authority  by  trying  men  in 

joinder  without  authority.   C.  M.  0. 10, 1911, 4;  42, 1914, 4.   Seealso  JOINDER.  TRIALIN. 

188.  Same — Judge  advocate  shall  not  usurp  functions  of  court.    See  JUDGE  ADVOCATE, 

123-126. 

189.  Vote,  revealing — Members  of  a  summary  court-martial  called  upon  to  reveal  their 

votes  "before  a  court  of  justice  in  due  course  of  law"  in  case  of  trial  of  Commander 
*  *  *.  1  Penna.  Law  Journal  Reports,  356. 

190.  Same — Members  of  asummary  court-martial  disclosing  vote  or  opinion.   See  OATHS,  47. 

191.  Same — The  vote  of  the  members  of  a  general  court-martial  being  a  confidential  mat- 

ter, it  can  not  be  known  what  it  was.    C.  M.  0. 125, 1900;  2;  VOTING,  1. 

192.  Warrant  officers— A  warrant  officer  not  being  a  commissioned  officer,  can  not  act 

as  a  deck  court  officer,  and  in  a  case  where  one  acted  as  such  the  department  stated 
that  a  deck  court  "so  constituted  has  no  legal  status,  has  no  jurisdiction,  and  that  its 
acts  are  ab  initio  [from  the  beginning]  null  and  void."  (See  Navy  Regulations.  1913, 
R-502;  C.M.  O.7,  1914,11.)  File  27217-1648,  Sec.  Navy,  March  24,  1915.  C.  M.  O. 
12,1915,5. 

193.  Same — Commissioned  warrant  officers  may  sit  as  members  of  general  courts-martial. 

See  CHIEF  BOATSWAINS,  2. 

194.  Same — May  convene  a  summary  court-martial  if  actually  hi  command  of  a  naval 

vessel,  but  may  not  sit  as  a  member.  See  COURT,  196;  SUMMARY  COURTS-MARTIAL, 
105. 

195  Same — May  convene  a  deck  court  if  actually  in  command  of  a  naval  vessel.    See  DECK 
COURTS,  4. 

196.  Same— The  words  "commander  of  any  vessel"  in  A.  G.  N.  26  are  construed  by  the 

Secretary  of  the  Navy  to  Include  a  warrant  officer  when  he  is  actually  commanding 
a  naval  vessel.  C.  M.  0. 6, 1915,  5.  See  also  SUMMARY  COURTS-MARTIAL,  7, 21, 105. 

197.  Witnesses— Examination  by  court— Scope  of;    See  WITNESSES,  40-42. 

198.  Same — Court  has  witnesses  before  it  and  can  thus  observe  their  appearance  and 

manner.  C.  M.  0. 129,  1898,  6;  G.  C.  M.  Rec.  30485,  pp.  701,  738.  Seealso  C.  M.  O. 
28,1913, 6;  File  26262-2445,  J.  A.  G., March 3, 1916.  p.  7;  EVIDENCE ,  129;  WITNESSES.  76. 
The  court  is  confronted  with  the  witnesses  and  has  opportunity  for  observing  their 
demeanor  before  the  court  and  determine  the  weight  to  be  given  to  their  testimony. 
File  26251-9574. 

199.  Same — Court  errs  in  allowing  witnesses  to  state  their  opinions  as  to  guilt  or  inno- 

cence of  accused.    C.  M.  O.  49, 1915, 12, 15;  22,  1916.    See  also  OPINION,  15-17. 

200.  Same— Exclusion  of.    See  COURT,  126, 127;  EXPERT  WITNESSES,  10. 

COURTS,  CIVIL.    See  CIVIL  COURTS. 

COURT  OF  CLAIMS. 

1.  Documentary  evidence  required  of  department— Such  documentary  evidence  as 

a  plaintiff  can  himself  produce,  and  which  in  an  ordinary  action  at  law  or  a  suit  in 
equity  he  would  produce  on  his  own  behalf  as  a  matter  of  course,  the  claimant  here 
can  not  compel  the  defendants  to  produce  through  calls  upon  the  departments.  (In 
Re  Calls  for  Evidence,  33  Ct.  Cls.  354, 355.)  File  26266-444,  Sec.  Navy,  July  14, 1916. 

2.  Jurisdiction.    See  EMBEZZLEMENT,  25  (pp.  210-211). 

3.  Law  involved  In  claims — It  is  not  believed  that  this  department  should,  through  means 

of  a  call  by  the  Court  of  Claims,  be  required  to  advise  counsel  for  claimants  as  to  the 
law  involved  in  their  claims  against  the  United  States.  File  26266-444,  Sec.  Navy, 
July  14, 1916. 

COURTS  OF  INQUIRY. 

1.  Accuser— May  not  demand  copy  of  record.    C.  M.  O.  20,  1915,  6.    See  also  COURTS  OF 

INQUIRY,  12. 

2.  Action  of  department — When  received  the  court  of  inquiry  record  must  be  reviewed 

and  recorded  in  accordance  with  law.    File  14625-183 : 25,  April  9, 1912;  J.  A.  G.,  101. 


COURTS   OF  INQUIRY.  131 

3.  Article  60  A.  G.  N. — Was  not  intended  to  restrict  admissibility  of  court  of  inquiry 

records  in  evidence  where  such  records  might  have  been  admitted  under  general 
principles  of  the  law  of  evidence;  but  was  intended  to  enlarge  the  rules  of  evidence 
by  authorizing  the  records  of  courts  of  inquiry  to  be  admitted  in  evidence  in  certain 
cases  where  they  would  otherwise  have  been  inadmissible,  as  for  example,  where  it 
is  necessary  in  the  interests  of  justice  to  introduce  against  an  accused  person  testi- 
mony previously  given  before  a  court  of  inquiry  by  a  person  other  than  the  accused, 
instead  of  confronting  the  accused  at  his  trial  with  such  witness.  C.  M.  O.  51. 1914.  6. 
See  also  C.  M.  O.  88, 1895, 13-16;  File  26251-12895,  1917. 

4.  Authentication — The  proceedings  of  courts  of  inquiry  shall  be  authenticated  by  the 

signature  of  the  president  of  the  court  and  of  the  judge  advocate.  C.  M.  O.  88,  1895 
13.  See  also  C.  M.  0. 12, 1904, 4;  COURTS  OF  INQUIRY,  21. 

5.  Challenge — "  Objection"  to  a  member  of  a  court  of  inquiry  sustained  by  court.    Ct.  Inq. 

Rec.  4952,  p.  29. 

6.  "Commander  cruiser  squadron  and  commander  hi  chief,  detached  squad- 

ron"— Convening  courts  of  inquiry.  C.  M.  0. 6, 1915, 9.  Seealso  CONVENING  AUTHOR- 
ITY, 10,  28. 

7.  Confession — Statements  made  by  accused  before  a  court  of  inquiry.    See  CONFES- 

SIONS, 12. 

8.  Constitution  of — A  court  of  inquiry  shall  consist  of  not  more  than  three  commissioned 

officers  as  members,  and  of  a  judge  advocate,  or  person  officiating  as  such.'  (A.  G.  N. 
56.) 

9.  Same — "  One  officer  "  court  of  inquiry.    See  COURTS  OF  INQUIRY,  38. 

10.  Convening  of— Courts  of  inquiry  may  be  convened  by  any  officer  of  the  naval  service 

authorized  by  law  to  convene  general  courts-martial.  (Act  of  Aug.  29,  1916,  39 
Stat.  586.)  See  CONVENING  AUTHORITY,  27.- 

See  File  26896-62,  J.  A.  G.,  May  18.  1911,  with  reference  to  convening  of  courts  of 
inquiry  in  cases  of  accidents,  etc. 

11.  Copies  of  record — Neither  accuser  nor  defendant  can  demand.    See  COURTS  OF  IN- 

QUIRY, 12. 

12.  Same— Not  furnished  to  interested  persons— Neither  the  accuser  nor  the  defendant 

before  a  court  of  inquiry  can  demand  a  copy  of  the  proceedings.  The  evidence,  of 
whatever  nature  is  intended  only  for  the  officer  convening  the  court.  (Navy  Regula- 
tions, 1913.  R-422.)  Where  copy  of  a  court  of  inquiry  record  is  requested  for  use  be- 
fore a  civil  court,  the  department  will  be  governed  by  the  provisions  of  General  Or- 
der No.  121,  September  17, 1914,  paragraph  18  (c).  File  26262-1705 : 3,  J.  A.  G.,  May  1, 
1915;  C.  M.  O.20,  1915,  6. 

Seealso  File 5475-04,  Sec.  Navy,  June 24, 1904;  636-9,  J.  A.  G.,  Oct.  10. 1905;  26261-69, 
J.  A.  G.,  June  14,  1909;  20971 : 9,  J.  A.  G.,  July  17, 1909;  26836-7  : 4,  J.  A.  G.,  Mar.  3 
1910;  14,  J.  A.  G.,  330;  13  J.  A.  G.,  326,  June  11, 1904. 
!3.  Counsel.    See  COUNSEL,  23. 

14.  Defendant— May  not  demand  a  copy  of  the  record.    See  COURTS  OF  INQUIRY,  12. 

15.  Depositions— Used  before  courts  01  inquiry.    See  DEPOSITIONS,  6. 

16.  District  attorney— To  assist  court  of  inquiry— Procedure  to  secure.    File  9608-44 : 3, 

Sec.  Navy,  March  21. 1914. 

17.  Evidence,  as — The  official  record  of  a  court  of  inquiry  is  admissible  in  evidence  to 

prove  what  an  accvr«*i  stated  in  his  testimony  before  the  court  of  inquiry,  which  testi- 
mony forms  the  basis  of  the  charge  of  "perjury"  for  which  tne  accused  is  on  trial. 
C.  M.  O.  51,  1914,  9. 

18.  Same;—"  The  voluminous  record  of  the  proceedings  of  the  court  of  inquiry  and  of  the 

testimony  taken  before  it,  and  the  various  maps,  diagrams,  and  exhibits  appended 
to  the  record,  give  every  indication  of  a  patient,  industrious,  and  exhaustive  investi- 
gation. Under  these  circumstances  the  evidence  taken  before  the  court  of  inquiry 
was  mutually  accepted,  by  the  Government  and  by  the  accused,  as  competent  and 
sufficient  evidence  before  tne  court-martial,  subject  only  to  the  reservation  that  either 
party  might,  if  desired,  introduce  additional  evidence.  The  findings,  however,  of  the 
court  of  inquiry  were  not,  and  could  not  be,  in  evidence  before  the  court-martial ;  could 
pot,  in  any  manner,  legally  or  officially  influence  its  proceedings,  and  hence  could  not, 
in  any  way,  trammel  or  interfere  with  its  action,  but,  haying  been  the  result  of  an 
investigation  ordered  in  pursuance  of  law  for  the  express  information  of  the  depart- 
ment, they  are  entitled,  upon  a  full  and  final  consideration  of  the  case,  to  such  weight 
as  their  accordance  with  the  testimony  and  other  evidence,  both  before  the  court  of 
inquiry  and  the  court-martial,  may,  in  the  judgment  of  the  department,  reasonably 
give  to  them. "  C.  M.  0. 41, 1888, 5-6. 


132  COURTS   OF   INQUIRY. 

19.  Same — A  general  court-martial  refused  to  allow  the  record  of  a  court  of  inquiry  which 

Investigated  matters  that  formed  the  basis  of  the  charges  and  specification  preferred 
against  the  accused  to  be  introduced  in  evidence  for  the  purpose  of  impeaching  the 
testimony  of  a  witness.  The  department  held  that  under  the  rules  of  law  any  testi- 
mony given  or  statement  made  by  a  witness  on  a  former  occasion,  whether  under 
oath  or  not  at  the  time,  may  be  introduced  for  the  purpose  of  impeaching  his  testimony 
if  a  proper  predicate  has  been  made  by  calling  the  attention  of  the  witness  to  such 
evidence  while  upon  the  stand;  and  it  does  not  matter  whether  such  statement  be 
part  of  a  record  or  not.  C.  M.  O.  88,  1895,  16.  See  also  G.  C.  M.  Rec.  6974;  7913; 
8164;  11279;  24258;  26651;  Mullan  v.  U.  8.,  212  U.  8.  516. 

20.  Same — At  several  points  during  the  progress  of  a  general  court-martial  trial  the  judge 

advocate  sought  to  introduce  the  record  of  this  court  of  inquiry,  but  the  court  ruled 
against  its  admission  upon  the  following  grounds: 

1.  That  the  proceedings  of  the  court  of  inquiry  could  not  be  Introduced  for  the  sole 
purpose  of  refreshing  the  memory  of  the  judge  advocate  (who  officiated  as  such  before 
both  courts),  he  offering  to  testify  as  a  witness. 

2.  That  the  record  of  the  court  of  Inquiry  could  be  introduced  only  as  evidence,  and 
then  only  when  oral  testimony  upon  the  points  sought  to  be  established  thereby  could 
not  be  obtained. 

3.  That  the  confession  of  the  accused  made  before  the  court  of  inquiry  in  the  course  of 
his  testimony  could  not  be  admitted  because  the  court  was  not  satisfied  that  proper 
and  timely  warning  was  given  the  accused  when  his  testimony  was  taken  before  the 
court  of  inquiry. 

It  Is  the  official  duty  of  the  judge  advocate  of  a  court  of  inquiry  faithfully  to  record 
the  proceedings  and  the  testimony  taken  before  such  court,  and  he  must  attach  his 
signature  thereto.  I  am  of  opinion  that  such  a  record  is  therefore  admissible,  as 
would  be  any  memorandum  made  by  the  witness  at  the  time,  for  the  purpose  of  refresh- 
ing his  memory,  whether  or  not  he  has  an  independent  recollection  in  the  matter. 
This,  of  course,  Is  a  different  thing  from  introducing  the  record  in  evidence. 

(Further,  it  would  appear  that  this  record  should  have  been  admitted  in  evidence 
under  the  previous  rulings  of  the  department,  which  were  before  the  court,  as  soon 
as  the  court  became  satisfied  that  oral  testimony  on  important  features  of  the  case 
sought  to  be  established  thereby  could  not  be  obtained*  The  exclusion  of  this  evi- 
dence, however,  in  so  far  as  it  operated  at  all,  was  in  favor  of  the  accused,  and  therefore, 
in  my  judgment,  does  not  in  any  way  invalidate  the  proceedings,  which  appear  to  be 
In  all  other  respects  regular.  C.  M.  0. 12.  1904,  3-4.  See  also  File  995-04,  J.  A.  G., 
Feb.  8, 1904;  COURTS  OF  INQUIRY,  3, 17;  WITNESSES,  96. 

21.  Same— The  department  stated  in  a  courl^martial  order  that  from  the  evidence  ad- 

duced before  the  court  of  inquiry  as  well  as  before  the  court-martial  the  department 
was  satisfied  that  certain  events  occurred.  C.  M.  O.  38, 1905,  2. 

Testimony  before  a  court  of  inquiry  is  given  under  oath.    C.  M.  O.  51, 1914,  5. 

The  proceedings  of  courts  of  inquiry  shall  be  authenticated  by  the  signature  of 
the  president  of  the  court  and  of  the  judge  advocate,  and  shall,  in  all  cases  not 
capital,  nor  extending  to  the  dismissal  of  a  commissioned  or  warrant  officer,  be  evi- 
dence before  a  court-martial,  provided  oral  testimony  can  not  be  obtained.  (A.  G.  N. 
60.)  C.  M.  O.  88,  1895,  13. 

The  evidence  adduced  before  a  court  of  inquiry  is  surrounded  by  all  the  solemnities 
of  evidence  taken  before  a  court  of  record  or  before  a  court-martial.  (Mullan  v.  U.  S., 
42  Ct.  Cls.  157,  176.) 

The  evidence  adduced  and  preserved  before  courts  of  inquiry  is  superior  in  every 
respect  to  depositions.  (Mullan  v.  U.  8.,  42  Ct.  Cls.  157, 176.) 

22.  Expert  witnesses— Fees  for.    C.  M.  O.  12,  1915,  13.    See  also  EXPERT  WITNESSES.  4. 

23.  False  testimony  before— The  law  provides  for  the  punishment  of  persons  who  give 

false  testimony  before  courts  of  inquiry.    C.  M.  O.  51, 1914,  5.    See  also  PERJURY,  3. 

24.  Findings— Of  a  court  of  inquiry  as  evidence  before  a  trial  by  general  court-martial, 

C.  M.  O.  41, 1888, 5-6.    See  also  COURTS  OF  INQUIEY,  18. 

25.  Foreign  countries.    See  JURISDICTION,  53. 

26.  Grand  Jury — Court  of  inquiry  compared  with.    See  JURY,  2. 

27.  Impeaching  testimony — Use  of  a  record  of  a  court  of  inquiry  as  evidence  to  impeach 

the  testimony  of  a  witness.    C.  M.  0. 88, 1895,  16.    See  also  COURTS  OF  INQUIRY,  19. 

28.  Index  for.   See  INDEX,  3. 

29.  Jeopardy,  former— If  a  court  of  inquiry,  after  completing  an  exhaustive  investiga- 

tion, should  decide  that  the  accused  is  not  to  blame  and,  therefore,  recommends  that 
no  further  action  be  taken,  this  is  not  an  acquittal  nor  is  it  conclusive  upon  superior 
authority;  so,  as  held  by  the  Attorney  General,  if  the  court  of  inquiry  finds  the  accused 


COURTS   OF  INQUIRY.  133 

"was  to  blame  and  recommends  that  he  be  punished  by  the  commander  In  chief,  such 
recommendation  and  punishment  imposed  pursuant  thereto  does  not  bar  subsequent 
trial  by  court-martial  for  the  same  offense.  C.  M.  O.  7,  1914,  6,  9.  See  also  File 
2639-04,  J.  A.  G.,  March  23, 1904,  p.  1;  PRIVATE  REPRIMANDS,  3. 

30.  Judge  advocate — Is  sworn  to  keep  a  true  record  of  the  proceedings  of  the  court  and 

the  evidence  in  the  case.    C.  M.  p.  51, 1914, 5. 

It  is  the  official  duty  of  the  judge  advocate  of  a  court  of  inquiry  faithfully  to 
record  the  proceedings  and  the  testimony  taken  before  such  court,  and  he  must  at- 
•  tach  his  signature  thereto.  C.  M.  O.  12, 1904,  4;  File  995-04,  J.  A.  G.,  Feb.  8, 1904. 

Solicitor  assigned  as  assistant  and  associate  of  a  judge  advocate  of  a  court  of  inquiry. 
See  COUNSEL,  49. 

31.  Members  of  courts  of  Inquiry— Exemption  from  other  duties,  etc.    See  MEMBERS 

OF  COURTS-MARTIAL,  1. 

32.  Member  of  court-martial— The  reading  of  the  proceedings  of  a  court  of  inquiry  by 

a  member  of  a  naval  court-martial,  which  is  frying  matters  that  grew  out  of  the> 
investigation  made  by  such  first-mentioned  court  is  regarded  as  irregular,  but  in  a 
case  tried  in  May,  1?82,  in  which  the  same  irregularity  occurred,  the  department  un- 
qualifiedly approved  the  proceedings  of  the  court.  C.  M.  O.  89, 1901, 3. 

33.  Midshipmen— Court  of  inquiry  convened  to  investigate  alleged  irregularities  of  mid- 

shipmen at  the  Naval  Academy.    C.  M.  O.  22, 1915,  9. 

34.  Nature  of.   See  COURTS  OF  INQUIRY,  39, 51. 

35.  Oath — The  law  authorizes  courts  of  inquiry  to  administer  oaths  to  witnesses.    C.  M.  O. 

51, 1914,  5. 

36.  Same— Judge  advocate  of  a  court  of  inquiry  is  authorized  by  law  to  "administer  oaths 

for  the  purposes  of  the  administration  of  naval  justice  and  for  other  purposes  of  naval 
administration."  C.  M.  O.  5, 1916,  7. 

37.  Object  of— The  object  of  a  court  of  inquiry  is  to  assist  the  convening  authority  in 

forming  judgment  as  to  whether  a  general  court-martial  should  or  should  not  be 
ordered.  15  Op.  J.  A.  G.  273;  File  4865-19,  Sec.  Navy,  July  8,  1907.  See  also  COURTS 
OF  INQUIRY,  51;  File  2C262-1194. 

The  record  and  report  of  a  court  of  inquiry  are  intended  for  the  use  and  information 
of  the  officer  ordering  the  inquiry,  and  any  other  use  of  them  is  discretionary.  13 
J.  A.  G.,  326,  June  11, 1904. 

38.  "One-officer"  court  of  Inquiry.    Ct.  Inq.  Rec.  5864;  6333;  File  6692-212. 

39.  Same — One  officer  acted  as  a  court  of  inquiry  without  a  judge  advocate.    File  6692-212. 

40.  Perjury— False  testimony  under  oath  before  a  court  of  inquiry  will  sustain  a  charge 

of  "perjury."   C.  M.  O.  51, 1914,9.   See  also  PERJURY,  3;  C.  M.  0. 88, 1895, 13. 

41.  Proceedings— As  used  in  A.  G.  N.  60.    C.  M.  O.  88, 1895, 13. 

42.  Purpose  of.    See  COURTS  OF  INQUIRY,  37, 51. 

43.  Record— Signed  by  president  and  judge  advocate.    C.  M.  O.  88,  1895,  13.    See  also 

C.  M.  0. 12, 1904.  4;  COURTS  OF  INQUIRY.  4. 
Original  record  sent  up  to  Congress  for  its  information.    File  8369-109:2, 1916. 

44.  Record,  copy  of.    See  COURTS  OF  INQUIRY,  12. 

45.  Regulations — For  a  construction  and  interpretation  of  the  Navy  Regulations  relating 

to  courts  of  inquiry.    See  File  26806-62,  J.  A.  G.,  May  18, 1911. 

46.  Representative — Member  of  the  House  of  Representatives  as  a  witness  before  a  court 

of  inquiry.    See  CONGRESS,  12. 

47.  Revision— Navy  Regulations,  1913{  R-427,  permits  new  evidence  to  be  received  and 

recorded  on  revision  of  courts  of  inquiry,  and  previous  witnesses  to  be  recalled  and 
reexamined,  provided  that  in  either  case  all  parties  to  the  inquiry  are  present  if  they 
so  desire.  Ffle  26250-?02:7,  Sec.  Navy,  Aug.  5,  1916.  See  also  FUc  2639-04,  J.  A.  G., 
March  23, 1904,  p.  1;  File  26250-S02:7,  Sec.  Navy,  Aug.  5, 1916. 

48.  Secretary  of  the  Navy— Action  of,  on  record.    See  COURTS  OF  INQUIRY,  2. 

49.  Senate  resolution,  reopening  on— The  Senate  passed  a  resolution  requesting  the 

Secretary  of  the  Navy  to  reopen  and  review  the  findings  of  a  certain  court  of  inquiry 
in  the  case  of  an  officer  of  the  Navy,  who  had  been  permitted  to  resign,  "with  the 
object  of  ascertaining  whether  these  findings  were  based  upon  facts  of  established 
record,  and  to  take  and  consider  any  additional  evidence  or  facts  which  may  be  pre- 
sented bearing  on  this  case,  and  to  render  his  findings  on  the  whole  record  so  made." 
The  case  was  reopened  and  an  exhaustive  investigation  and  review  made.  A  careful 
and  sympathetic  consideration  of  the  testimony  submitted  by  a  large  number  of 
witnesses  of  unimpeachable  character,  of  diverse  stations  and  duties,  and  varying  in 
grades  from  enlisted  men  of  the  lowest  ratings  to  officers  of  the  highest  ranks,  left 
possible  no  other  conclusion  but  that  the  findings  of  the  court  of  inquiry  were  justified 
beyond  any  reasonable  doubt.  File  8369-109:2,  September,  1916. 


134  COURTS   OF   INQUIRY. 

60.  Testimony — Given  under  oath,  recorded  pursuant  to  law,  and  the  record  is  required  to 
be  filed  in  the  Navy  Department.    C.  ML.  0. 51, 1914, 5. 

51.  Trial,  not  a — The  proceedings  of  a  court  of  inquiry  is  in  no  sense  a  trial  of  an  issue  or  of 

an  accused  person.  This  court  performs  no  real  judicial  function,  but  is  convened 
only  for  the  purpose  of  informing  the  department  in  a  preliminary  way  as  to  the  facts 
involved  in  the  inquiry.  C.  M.  O.  7, 1914,  6.  See  also  COURTS  OF  INQUIRY,  37. 

An  inquiry  of  this  nature  is  peculiar.  There  is,  strictly  speaking,  no  prosecution, 
although  the  officers  concerned  are  necessarily  on  the  defensive.  File  7893-03,  J.  A.  G., 
Sept.  22, 1903,  p.  2. 

If  officers  are  exonerated  they  should  be  so  advised.  File  2639-04,  J.  A.  G.,  Mar. 
23, 1904,  p.  3. 

52.  Witnesses— Courts  of  inquiry  have  power  to  issue  like  process  to  compel  witnesses  to 

appear  and  testify  as  United  States  courts  of  criminal  jurisdiction;  and  refusal  of  any 
person  to  appear  and  testify  when  so  subpoenaed  is  punishable  as  a  misdemeanor. 
(Act  of  Feb.  16, 1909,  sees.  11. 12.  35  Stat.  621,  622.) 

53.  Same— Testify  under  oath.    C.  M.  O.  51, 1914,  5. 

54.  Same — Member  of  House  of  Representatives.    See  CONGRESS,  12. 

55.  Same — Court  may  interrogate  witnesses  and  questions  of  members  may  be  propounded 

without  being  first  submitted  to  the  court.  The  court  during  the  examination  of 
witnesses,  acting  as  judges,  may  propound  leading  questions.  (See  Wigmore,  sec. 
784.)  File  2626-1194,  J.  A.  G..  June  16, 1911,  pp.  7-8. 

56.  Witness  fees.    See  EXPERT  WITNESSES,  4. 

M  COURT-MARTIAL  "  AT  THE  NAVAL  ACADEMY. 

1 .  Constitution—' '  Not  less  than  three  commissioned  officers."    C.  M.  0. 31, 1915, 10-12. 
See  also  HAZING,  6. 

COURT-MARTIAL  ORDERS. 

1.  Acquittals— In  cases  where  officers  are  acquitted,  court-martial  orders  will  be  pub- ' 

lished  only  in  exceptional  cases.    File  26504-189,  Sec.  Navy,  Mar.  18, 1910. 

An  acquittal  was  considered  an  exceptional  case  and  published  in  C.  M.  O.  5, 1913. 

The  policy  of  the  department  is  now  to  publish  all  acquittals.  See  C .  M.  0 . 32, 1915- 
36, 1915;  38, 1915;  41, 1915;  21,  1916;  40, 1916.  See  also  ACQUITTAL,  6. 

2.  Arrest,  released  Irom— Court-martial  orders  should,  in  proper  cases,  contain  a  state- 

ment that  the  accused  was  released  from  arrest  and  restored  to  duty.  See  ARREST,  9; 
CONVENING  AUTHORITY,  4. 

3.  Bulletin.    See  BULLETIN  IN  COURT-MARTIAL  ORDERS. 

4.  Charges  and  specifications— Tabulations  as  form  for.    C.  M.  O.  35, 1915, 7.    See  also 

CHARGES  AND  SPECIFICATIONS,  53. 

5.  Dating  of — Commencing  with  C.  M.  O.  49, 1914;  the  practice  was  instituted  of  dating 

monthly  court-martial  orders  as  of  the  last  business  day  in  the  month  covered  by  the 
subject  matter  thereof,  instead  of  dating  them  as  of  the  first  business  day  in  the  follow- 
ing month.  This  change  was  adopted  as  a  matter  of  convenience,  and  as  a  result  the 
court-martial  orders  for  each  year  will  embody  the  data  relating  to  all  cases  reviewed 
during  that  year.  C.  M.  0. 1, 1915. 

6.  Same—Court-martial  orders  should  be  dated  as  of  the  date  of  final  action — In  cases 

where  the  President  confirms  the  sentence,  the  date  of  the  court-martial  order  should 
be  of  the  date  of  such  confirmation.  But  see  C.  M.  O.  30, 1914;  32, 1914,  the  dates  of 
which  are  in  error. 

7.  Same— C.  M.  O.  22, 1896,  is  dated  "February  19, 1895,"  instead -of  "February  19, 1896." 

C.  M.  O.  22, 1896.    See  also  ERRORS  IN  COURT-MARTIAL  ORDERS,  2. 

8.  Decisions  and  Instructions  of  department — Contained  in  court-martial  orders  are 

in  such  easily  accessible  form  that  ignorance  of  or  inattention  to  them  is  inexcusable. 
C.M.  0.42,1915,  7-8. 

9.  Errors— In  court-martial  orders.    See  ERRORS  IN  COURT-MARTIAL  ORDERS. 

10.  Error  of  court— In  a  case  where  the  action  of  a  general  court-martial  was  irregular. 

the  Secretary  of  the  Navy  expressly  stated  that  "in  order  that  its  error  may  be  called 
to  the  attention  of  the  court,  it  is  directed  that  the  same  be  published  in  a  court- 
martial  order."  C.  M.  O.  49, 1915,  11. 

11.  Evidence,  as— The  record  showed  that  after  the  trial  had  been  finished  and  the  judge 

advocate  had  submitted  the  case  to  the  court  without  remarks,  the  court  decided  to 
call  for  a  certain  court-martial  order,  and  that  it  be  appended  as  a  part  of  the  record  as 
evidence.  The  purpose  of  this  step  did  not  appear  from  the  record.  Its  object  may 
have  been  to  rebut  the  evidence  of  good  character,  which  the  accused  had  introduced; 


COURT-MARTIAL   ORDERS.  135 

and  if  this  were  the  case,  it  should  have  been  done  before  spreading  upon  the  record 
the  facts  that  the  defense  had  closed  and  that  the  case  had  been  submitted  by  the 
judge  advocate.  This  step  may  also  have  been  due  to  the  fact  that  the  court  desired 
to  have  the  evidence  of  previous  convictions  introduced.  If  this  were  the  case  the 
evidence  should  have  been  introduced  at  its  proper  place  and  the  matter  clearly  set 
forth  hi  the  record.  C.  M.  O.  11,1897.3.  See  also  COURT-MARTIAL  ORDERS,  26-28. 
Courts-martial  may  take  judicial  notice  of  court-martial  orders.  See  COURT-MAR- 
TIAL ORDERS,  27. 

12.  Fleet  and  station  court-martial  orders— It  is  not  necessary  for  the  convening 

authority  of  a  fleet  or  station  general  court-martial  to  delay  publishing  a  court-martial 
order,  awaiting  information  of  possible  special  action  by  the  Secretary  of  the  Navy. 
There  is  no  objection  to  delaying  publication  of  a  court-martial  order  for  a  reasonable 
time  after  the  record  in  such  case  should,  in  due  course,  have  arrived  at  the  depart- 
ment; but  publication  of  such  orders  should  not  be  unduly  delayed  because  of  the 
possibility  that  some  special  action  may  have  been  taken  by  the  Secretary  of  the  Navy, 
which  in  any  event,  is  not  required  to  be  included  in  the  court-martial  order  issued 
by  the  convening  authority.  File  26504-210,  Sec.  Navy,  June  11, 1914;  C.  M.  O.  22, 
1915,  7. 

13.  Fleet  court-martial  order— Published  in  full  in  a  Navy  Department  court-martial 

order.    C.  M.  O.  14, 1879. 

14.  General  summary— Explained.  See  GENERAL  SUMMARY  IN  COURT-MARTIAL  ORDERS. 

15.  Judge  advocates — Should  carefully  read  and  study  court-martial  orders  in  order  that 

they  may  follow  precedents  of  the  department  and  avoid  the  common  errors.  This 
is  indicated  in  C.  M.  0. 1, 1914,  p.  6,  which  states:  "  The  department,  in  court-martial' 
orders,  has  repeatedly  condemned  the  tendency  of  judge  advocates  in  some  cases  to 
usurp  the  functions  of  the  court,"  etc. 

16.  Judge  Advocate  General— In  a  certain  case  suggested  that  the  department's  views 

upon  the  matters  contained  in  his  opinion  be  embraced  in  the  court-martial  order 
promulgating  the  case,  for  the  guidance  of  general  courts-martial  in  future  cases 
where  similar  questions  arise.  C.  M.  O.  88,  1895, 15. 

17.  Members— General  courts-martial  in  deliberating  upon  sentences,  should  consult  the 

court-martial  orders  published  periodically  by  the  department,  in  order  that  the 
sentences  adjudged  for  the  various  offenses  therein  enumerated  may  be  noted  and 
considered.  C.  M.  O.  1, 1913,  4.  Bound  by  oath  to  observe.  File  26251-12159. 

18.  Same — Members  of  general  courts-martial  should  have  copies  of  the  monthly  court- 

martial  orders  published  by  the  department.    C.  M.  O.  22,  1913,  4. 

19.  Names  ol  members  and  judge  advocate— Published  in  court-martial  order.    C. 

M.  O.  38,  1915,  3. 

20.  Numbering  of— A  court-martial  order  in  1890  was  numbered  61J.    C.  M.  0. 6U,  1890. 

21.  Same— The  last  court-martial  order  published  in  1909  was  No.  45,  dated  December  30, 

1909,  and  the  first  eleven  court-martial  orders  published  in  1910  werenumbered  46to56, 
inclusive.  A  new  series  was  then  started,  the  first  court-martial  order  being  num- 
bered 12,  since  eleven  court-martial  orders  had  already  been  published  in  1910.  This 
will  explain  why  there  are  no  court-martial  orders  in  1910  corresponding  to  Nos.  1-11, 
inclusive,  or  subsequent  to  No.  56.  File  26504-243,  J.  A.  G.,  Sept.  10, 1915.  See  also 
File  26504-276,  J.  A.  G.,  April  6, 1916. 

22.  Officers— Court-martial  orders,  in  proper  cases,  should  show  that  the  officer  was  re- 

leased from  arrest  and  restored  to  duty.    See  ARREST,  9;  CONVENING  AUTHORITY,  4. 
Officers  held  accountable  for  ignorance  of  information  contained  in  court-martial 
orders.    See  COURT-MARTIAL  ORDERS,,  18,  39-42. 

23.  Officer  and  enlisted  man— Court-martial  order  contained  the  cases  of  enlisted  men 

and  officers.    C.  M.  0. 12,  1900. 

24.  Posted.    See  COURT-MARTIAL  ORDERS,  30. 

25.  Praised  by  a  civilian  magazine  writer— The  following  comment  upon  court-martial 

orders  is  quoted  from  an  article  published  in  a  well-known  periodical  during  the  year: 
"For  years  the  Navy  has  been  issuing  as  a  regular  part  of  its  routine  a  monthly 
leaflet  or  bulletin  that  contains  the  summary  of  court-martial  cases  for  that  particular 
month.  The  list  itself  is  brief,  but  following  under  the  heading  of '  Remarks,'  is  a 
commentary  on  the  soecial  cases  that  have  occurred.  It  is  a  course  in  law.  It  bristles 
with  pointed  and  biting  phrase  where  it  points  out  to  officers  of  courts-martial  their 
errors  of  law  and  procedure;  it  argues,  explains,  analyzes,  expounds,  and  condemns 
the  court  unsparingly  when  needed;  it  quotes  from  the  Federal  courts'  decisions  and 


136  COURT-MARTIAL   ORDERS. 

from  the  decisions  of  State  courts.  The  thoroughness  with  which  this  legal  laboratory 
work  is  done  under  that  innocuous  heading  of '  Remarks '  is  a  guaranty  that  a  legal 
error  or  violated  regulation  is  as  little  likely  to  slip  by  as  it  would  be  in  the  most 
exacting  civil  court  of  appeals."  Annual  Report  of  J.  A.  G.,  1915. 

26.  Previous  convictions — A  counsel  for  an  accused  officer  addressed  a  letter  to  the  Sec- 

retary of  the  Navy,  in  which  he  contended  that  when  evidence  of  previous  convic- 
tion was  introduced  the  Navy  Department  general  court-martial  order  contain- 
ing evidence  of  such  previous  conviction  should  have  been  read  aloud  to  the  court 
by  the  judge  advocate.  The  department  held  that  it  was  not  necessary  to  read  the 
order  to  the  court.  C.  M.  O.  9, 1908,  3.  See  also  G.  C.  M.  Rec.  30485,  Exhibit  7. 

27.  Same — The  following  telegram  was  received  from  a  general  court-martial  which  was 

trying  an  officer:  "Is  court  authorized  to  introduce  printed  court-martial  order  as 
evidence  of  previous  conviction  in  *  *  *  case?  If  not,  will  department  forward 
duly  authenticated  copy  of  record;  latter  not  here."  The  department  replied  "Courts 
may  take  judicial  notice  department's  printed  court-martial  orders.  See  Forms  of 
Procedure,  pages  137  and  141."  File  26251-8681:4;  G.  C.  M.  Rec.  28613.  See  also 
G.  C.  M.  Rec.  31925,  p.  31,  and  Exhibit  4. 

28.  Same — The  department  approved  without  comment  the  case  of  an  officer  in  which  the 

judge  advocate  offered  as  evidence  of  previous  conviction  a  printed  copy  of  a  depart- 
ment court-martial  order,  which  was  accepted  by  the  court,  but  no  copy  of  such  court- 
martial  order  was  appended  to  record.  G.  C.  M.  Rec.  28560.  See  also  G.  C.  M.  Rec. 
31925,  p.  31,  and  exhibit  4. 

29.  Public  reprimand — Court-martial  order  should  show  that  a  public  reprimand  involved 

in  a  general  court-martial  sentence  was  administered,  etc.  But  see  C.  M.  0. 7, 1912, 7; 
9, 1913,  3. 

30.  Publicity  to  be  given — It  is  the  desire  of  the  department  to  increase  the  exemplary 

effect  of  the  punishments  adjudged  by  general  courts-martial,  and  to  impress  more 
strongly  upon  the  enlisted  personnel  the  extent  to  which  offenders  are  subject  to  pun- 
ishment; likewise,  to  emphasize  the  large  and  increasing  percentage  of  deserters  who 
are  apprehended  and  convicted,  and  the  frequency  with  which  fraudulent  enlistments 
are  detected. 

In  addition  to  publishing  the  general  monthly  court-martial  orders,  the  department 
believes  it  will  be  conducive  to  better  discipline,  and  tend  to  a  diminution  of  desertion 
if  there  be  published  to  the  enlisted  force  reports  of  specific  cases  in  which  men,  form- 
erly members  of  the  same  command,  have  been  apprehended,  convicted,  and  sen- 
tenced. 

Hereafter,  therefore,  in  pursuance  of  this  policy1,  upon  the  receipt  of  the  usual  letter 
notifying  a  commanding  officer  of  the  conviction  of  a  man  formerly  attached  to  his 
command,  a  brief  extract  will  be  made  from  such  letter,  and  copies  thereof  posted  in 
several  appropriate  places  in  the  ship,  barracks,  etc.,  in  such  manner  as  best  to  serve 
as  a  warning  to  others  and  to  secure  the  desired  deterrent  effect  of  the  conviction  and 
adjudged  punishment. 

The  accomplishment  of  this  deterrent  effect  depends  largely  upon  the  notoriety  given 
to  the  matter,  particularly  among  the  offenders'  former  comrades.  Therefore,  in  order 
that  this  system  may  operate  as  a  restraining  influence  upon  others  as  far  as  possible, 
and  to  obtain  the  most  efficient  results  therefrom,  it  is  directed  that  publicity  be  given 
to  the  convictions  by  general  courts-martial  upon  receipt  of  notice  thereof,  as  above 
indicated.  C.  M.  O.  16, 1912,  2-3. 

31.  Bead  on  board  ship— A  court-martial  order  stated:  "This  order  will  be  read  at  muster 

on  the  quarter-deck  of  every  vessel  of  the  Southern  Squadron,  Asiatic  Fleet,  on  the 
first  Sunday  after  receiving  it. "  C.  M.  O.  29, 1903. 

32.  Reflection— A  court-martial  order  stated:  "The  publication"  of  this  general  court- 

martial  order  carries  with  it  no  reflection  upon  any  witness  who  testified  before  the 
court."  C.  M.  O.  214, 1901. 

33.  Regulations— Court-martial  orders  "Have  full  force  and  effect  as  regulations  for  the 

guidance  of  all  persons  in  the  naval  establishment. "    See  COURT-MARTIAL  ORDERS,  39. 

34.  Secretary  of  the  Navy,  action  of — Not  necessary  to  publish  in  fleet  and  station 

court-martial  orders.    See  COURT-MARTIAL  ORDERS,  12. 

35.  Sentences — Court-martial  orders  should  be  consulted  in  order  to  secure  uniform  sen- 

tences.   See  COURT-MARTIAL  ORDERS,  17. 

36.  Specifications  abbreviated — In  some  cases  the  specifications  printed  court-martial 

orders  have  been  abbreviated,  merely  stating  the  substance.    C.  M.  O.  21, 1885. 

37.  Tabulated  statements — In  monthly  court-martial  orders,  show  how  offenses  should 

be  charged  in  certain  cases.  C.  M.  O.  25,  1914,  5.  See  also  CHARGES  AND  SPECIFICA- 
TIONS, 53. 


COURT-MARTIAL   ORDERS.  137 

38.  Title  of— Court-martial  cases  were  first  published  in  General  Orders  (until  Jan.  9, 1877). 
Later  they  were  published  as  "General  Court-Martial  Orders."  (Beginning  Feb. 
4, 1879.)  This  title  was  changed  to  "Court-Martial  Order"  beginning  with  C.  M.  O. 
1,1911. 

59.  Weight  of— The  Navy  Regulations,  1913  (R-901-3)  expressly  provide  that  court- 
martial  orders  "shall  have  full  force  and  effect  as  regulations  for  the  guidance  of  all 
persons  in  the  Naval  Establishment;"  and  the  department  has  emphatically  an- 
nounced that  court-martial  orders  are  published  by  the  department  for  the  informa- 
tion and  guidance  of  all  officers  In  the  service,  and  that  they  may  be  held  accountable 
for  ignorance  thereof  when  occasion  arises  in  which  they  should  be  governed  by  in- 
structions contained  in  such  orders.  C.  M.  O.  33,  1912,  3;  49,  1914,  5:  12,  1915,  11. 
NOTE.— The  above  quotation  from  the  Navy  Regulations  appears  at  the  head  of  Court- 
Martial  Order  No.  6, 1915,  and  all  subsequent  monthly  court-martial  orders.  See  also 
File  26251-12159.  Sec.  Navy,  Dec.  9,1916,  pp.  2,  10. 

40.  Same — They  are  "published  for  the  information  of  the  service,"  and  "set  forth  in  concise 

form  the  essentials  of  legal  procedure"  "with  the  object  of  guiding"  courts-martial  in 
conducting  trials.  C.  M.  O.  5,  1914,  5;  7,  1914,  14.  See  also  C.  M.  O.  25, 1916,  2. 

41.  Same — Courts-martial  in  deliberating  upon  sentences,  should  consult  the  court-martial 

orders  published  periodically  by  the  department,  in  order  that  the  sentences  adjudged 
for  the  various  offenses  therein  enumerated  may  be  noted  and  considered.  C.  M.  O. 
1,  1913,  4. 

42.  Same — All  remarks  made  by  the  department  in  acting  upon  general  court-martial  cases 

and  which  the  department  deems  proper  for  publication  to  the  service  at  large  are 
printed  in  Court-Martial  Orders.  File  26504-190. 

COVER  PAGE  OF  RECORDS. 

1.  "Copy  waived" — Not  only  should  "copy  waived"  be  placed  on  the  cover  page  of  a  gen- 

eral court-martial  record,  but  the  waiver  should  be  appended  last.   C.  M.  0. 21, 1910, 11. 

2.  Date — Of  trial  on  front  sheet  of  a  general  court-martial  record,  should  be  the  correct  date. 

C.  M.  O.  27, 1913, 12. 

COWARD. 

1.  Midshipman — A  specification  under  "Conduct  to  the  prejudice  of  good  order  and 
discipline"  alleged  that  accused  called  another  midshipman  "a  sneak  and  a  coward." 
C.  Mt  O.  128,  1905,  4. 

"  COWARDICE." 

1.  Officer— Charged  with— In  that  he  kept  out  of  danger  at  the  time  of  the  capture  of  an 
enemy  ship.  G.  O.  57,  June  9, 1865. 

COWARDLY  AND  INHUMAN  CONDUCT  TO  THE  SCANDAL  AND  DISGRACE 
OF  THE  NAVAL  SERVICE. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 37, 1909, 7. 

CREDIBILITY  OF  WITNESSES.    See  SELF-INCRIMTNATION,  11, 12;  WITNESSES,  51,  52. 

CRIMINALS. 

1.  Refuge  for— Government  property  should  not  be  a  haven  for. 

2.  Discharged— And  turned  over  to  civil  authorities.    See  CIVIL  AUTHORITIES,  8,  12; 

CONVICTS,  2. 

3.  Enlistment  of— To  escape  punishment  by  civil  courts.    See  EITJSTMENTS,  5. 

CRIMINAL  CODE  (35  Stat.  1088). 

CRIMINAL  NEGLIGENCE.    C.  M.  O.  35, 1914,  4. 

CRIMINAL  PROCESS.    See  CrvrL  AUTHORITIES;  GENERAL  ORDER  No.  121,  September 
17, 1914;  JURISDICTION. 

CRITICISM  OF  COURTS-MARTIAL. 

1.  Acquittal — Courts-martial  criticized  for  acquitting  accused.    See  CRITICISM  OF  COUHTS- 

MARTIAL,  18-22. 

2.  Adequate  sentences — Criticism  for  adjudging  inadequate  sentences.    See  ADEQUATE 

SENTENCES. 

3.  Animadversion — Convening  authority  may  express  animadversion   upon   courts- 

martial,  the  prosecution,  administration  of  a  command,  etc.  File  7719-03,  Sec.  Navy, 
Nov.  18, 1903.  See  also  CRITICISM  OF  COURTS-MARTIAL,  35. 


138  CRITICISM   OF   COURTS-MARTIAL. 

4.  Appeal — Member  of  court-martial  appealed  against  criticism  of  convening  authority 

See  CRITICISM  OF  COURTS-MARTIAL,  35, 36. 

5.  Carelessness,  gross— C.  M.  0. 78, 1905, 1;  14, 1913, 5.    See  also  COURT,  10;  CRITICISM  OF 

COURTS-MARTIAL,  25. 

6.  Censure— C.  M.  O.  23, 1910,  3;  10, 1912,  8;  14,  1913,  5;  22,  1913,  5.    See  also  CRITICISM 

OF  COURTS-MARTIAL,  16,  35, 36. 

7.  Compromise— Between  those  members  who  believed  accused  guilty  and  others  who 

believed  him  not  guilty.  G.  O.  68,  Dec.  6,  1865,  quoted  in  File  7719-03,  Sec.  Navy, 
Nov.  18, 1903.  See  also  CRITICISM  OF  COURTS-MARTIAL,  35. 

8.  Convening  authority— General  court-martial  may  censure  members.    See  CRITI- 

CISM OF  COURTS-MABTIAL,  35. 

9.  Same— Summary  court-martial— May  censure  members.    See  CRITICISM  OF  COURTS- 

MARTIAL,  36. 

10.  Department — May  reprimand,  censure,  criticize,  commend,  etc.    See  COMMENDA- 

TORY LETTERS,  2;  CRITICISM  OF  COURTS-MARTIAL,  35,36;  SECRETARY  OF  THE  NAVY, 
63. 

11.  Discipline  of  the  Navy— "While  the  commissioned  officers  of  the  court  hold  in  such 

light  estimation  the  discipline  of  the  Navy,  and  have  such  mild  ideas  as  to  the  gravity 
oi  offenses  committed  against  its  laws,  the  subordinates  in  all  degrees  can  not  be  ex- 
pected to  consider  them  more  seriously."  See  ADEQUATE  SENTENCES,  13. 

12.  "Due  form  and  technically  correct"— Court  errs  if  it  pronounces  faulty  charges 

and  specifications  in  "due  form  and  technically  correct."  C.  M.  O.  35,  1915,  6-7; 
File  26251-12159,  Sec.  Navy,  Oct.  19, 1916.  See  also  COURT,  73. 

13.  Errors  In  procedure — These  errors  in  procedure  and  omissions  seem  to  indicate  negli- 

gence and  carelessness  on  the  part  oi  the  court  and  of  the  judge  advocate,  and  are 
most  reprehensible  and  go  far  to  defeat  the  objects  for  which  courts-martial  are  in- 
tended, and  in  this  case  are  more  than  sufficient  to  render  the  entire  proceedings  in- 
valid. C.  M.  O'.  36, 1905,  3. 

14.  Facts  undisputed — "The  department  has  heretofore  announced  that  it  is  not  its 

'desire  or  policy  to  coerce  courts-martial  in  their  judgment  of  cases  when  the  facts  are 
in  dispute,  or  there  is  such  a  conflict  in  the  evidence  that  reasonable  men  might  differ 
as  to  the  facts  established  thereby ';  but  that,  when  'there  is  no  conflict  whatever  in 
the  evidence,  all  material  allegations  of  the  specifications  being  clearly  established 
thereby,  and  the  only  difficulty  existing  is  one  of  law,  a  different  question  is  pre- 
sented. Under  such  circumstances,  decisions  of  the  courts,  opinions  of  law  officers 
of  the  Government,  or  decisions  of  the  department  based  thereupon,  are  not  to  be 
lightly  disregarded  by  courts-martial  without  incurring  the  full  measure  of  responsi- 
bility which  must  be  ascribed  to  them  for  the  resulting  miscarriage  of  justice ' 
(C.  M.  O.  4,  1913,  57.  See  also  UNITED  STATES  v.  MCGLUE,  26  Fed.  Cas.,  1095.)" 
C.  M.  O.  88,  1905,  14;  43,  1906;  6,  1908;  4,  1913,  57;  24,  1914,  7;  29,  1914,  9;  51, 1914,  3; 
28,  1915,  3;  32,  1915;  36, 1915,  2;  25,  1916, 1;  File  26251-12C45,  Sec.  Navy,  Aug.  7,  1916: 
262151-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  2;  G.  C.  M.  Rec.  32388. 

Where  there  is  no  conflict  in  the  evidence,  all  material  allegations  of  the  specifica- 
tions being  established  thereby,  naval  courts-martial  are  to  be  governed  by  the  deci- 
sions of  the  Federal  courts,  opinions  of  law  officers  of  the  Government,  and  decisions 
of  the  Secretary  of  the  Navy.  C.  M.  O.  25,  1916,  4.  See  also  SECRETARY  OF  THE 
NAVY,  39. 

15.  Findings,  inconsistent— It  will  readily  be  seen  that  it  is  a  miscarriage  of  justice 

when  a  court,  with  such  plain  facts  before  it,  arrives  at  such  contradictory  findings 
upon  a  charge  and  specification  of  a  charge.  And,  furthermore,  the  refusal  to  mate- 
rially correct  such  findings  when  the  error  is  pointed  out  by  the  department,  consti- 
tutes a  naked  nonconcurrence  with  the  disciplinary  acts  of  Congress  and  the  Articles 
for  the  Government  of  the  Navy,  approved  by  the  President,  which  each  member  of 
a  court  of  justice  is  bound  by  oath  to  uphold.  C.  M.  O.  6, 1908,  5. 

16.  Same — Where  a  general  court-martial  entirely  ignored  instructions  in  the  depart- 

ment's letter,  and  caused  a  miscarriage  of  justice  by  obstinately  adhering  to  their 
opinion  and  rendered  a  finding  wholly  inconsistent  with  the  evidence,  the  depart- 
ment stated  that  "the  court  thus  signally  failed  in  its  duty,  and  its  conduct  is  sub- 
ject to  censure."  C.  M.  O.  42, 1909, 14.  See,also  C.  M.  O.  43,  1906,  3:  6, 1908,  6. 

17.  Finding,  Interlineations.   C.  M.  O.  28, 1915. 

18.  Findings  and  acquittal— Not  in  accord  with  evidence.      See  ACQUITTAL,  7,  8,  10; 

CRITICISM  OF  COURTS-MARTIAL,  19-22. 


CRITICISM   OF   COURTS-MARTIAL.  139 

19.  Same^ Where  a  court  twice  adhered  to  its  findings  and  acquittal  when  the  facts  were 

not  in  dispute  and  clearly  showed  the  guilt  of  the  accused,  the  department  stated: 
"It  is  considered  that  the  actionof  the  court  in  obstinately  adhering  to  itsacquittal 
in  this  case  notwithstanding  the  evidence,  and  the  decisions  to  which  it  had  been 
referred,  exhibits  a  tendency  to  make  law  rather  than  to  administer  the  law,  and 
deserves  the  severe  animadversion  of  the  department.  C.  M.  0. 14, 1914,  5. 

"  The  department,  accordingly,  disapproved  the  finding  and  acquittalin  this  case  in 
order  that  it  may  not  be  accepted  as  authority  for  persons  in  the  service  to  take  trips  to 
distant  points  without  thinking  to  request  permission  from  their  commanding  officers 
for  leave  of  absence  sufficient  to  cover  the  journey;  and  also  in  order  that  it  may  not 
mislead  courts-martial  into  thinking  that  men  who.  while  absent  with  or  without  per- 
mission, are  arrested  by  the  civil  authorities  and  held  in  confinement  for  extended 
periods  due  to  their  own  misconduct,  as  evidenced  by  conviction  and  sentence  by 
the  civil  courts,  are,  nevertheless,  in  a  duty  status  or  in  a  status  of  being  on  authorized 
leave  and  entitled  to  be  paid  by  the  Government  out  of  naval  appropriations  during 
such  time  as  they  are  in  a  prison  expiating  the  sentence  of  a  civil  court  adjudged  in 
consequence  of  misconduct  of  which  they  have  been  found  guilty."  C.  M.  O.  14, 
1914,  5. 

20.  Same— It  is  considered  that  the  action  of  the  court  in  obstinately  adhering  to  its 

acquittal  in  this  case  notwithstanding  the  evidence,  and  the  decisions  to  which  it  had 
been  referred ,  exhibits  a  tendency  to  make  law  rather  than  to  administer  the  law,  and 
deserves  the  severe  animadversion  of  the  department.  C.  M.  O.  14.  1914,5.  See  also 
C.  M.  O.  1, 1914,  8;  COURT,  113;  C.  M.  0. 28, 1915;  32, 1915;  36, 1915;  38;  1915;41, 1915,  9. 

21.  Same — In  a  case  where  an  officer  was  charged  with  "Culpable  inefficiency  in  the  per- 

formance of  duty  "  and  was  acquitted,  the  Secretary  of  the  Navy ,  after  a  review  pfthe 
evidence,  disapproved  the  finding,  saying,  by  inference,  that  the  court  had  shielded 
the  officer  accused  by  unjustly  condemning  another  officer,  and  that  if  upon  the  state 
of  facts  shown  "no  naval  officer  can  be  punished  therefor,  the  responsibility  for  such 
impotent  conclusion  shall  always  rest  solely  upon  officers  composing  courts-martial 
and  not  upon  the  Navy  Department."  C.  M.  O.  3, 1884.  See  also  file  7719-03. 

22.  Same— Where  an  officer  was  acquitted  by  the  court  on  a  charge  of  "Culpable  negli- 

gence and  inefficiency  in  the  performance  of  duty  "  and  the  court  adhering  to  its  find- 
ings and  acquittal  when  it  was  reconvened  for  revision,  the  department  stated :  That 
an  officer  thus  proved,  by  his  own  admission,  to  have  been  inefficient  in  the  perform- 
ance of  the  duties  assigned  to  him,  and  inefficient  in  a  most  aggravated  degree,  should 
be  acquitted— and  fully  and  honorably  acquitted— by  even  four  of  the  seven  members 
of  the  court,  is  a  startling  revelation  *  *  *.  Surely  the  membersof  the  court  who 
voted  "fully  and  honorably"  to  acquit  the  accused  under  such  circumstances  could 
not  have  appreciated  the  importance  of  the  duty  devolving  upon  them  to  guard  and 
maintain  the  efficiency  and  nigh  standards  of  the  naval  service. 

"  The  department  deeply  regrets  that  the  names  of  those  officers  who  succeeded  in 
making  the  court  record  such  findings,  wholly  without  support  from  the  evidence, 
must  remain  unknown,  and  it  is  unfortunate  indeed  that  the  remaining  members  of 
the  court— for  there  must  have  been  such— who  acted  in  accordance  with  the  undis- 
puted evidence  of"  the  accused's  guilt,  "can  not  be  separated  from  those  whose  action 
In  this  case  must  tend  to  lessen  the  confidence  of  the  public  in  the  efficiency  of  the 
naval  service."  G.  C.  M.  Rec.  23553;  file  2C251-4527,  Sec.  Navy,  Apr.  22, 1911. 

Concurring  in  the  recommendation  of  the  Bureau  of  Navigation  the  Secretary  of 
the  Navy  addressed  letters  of  admonition  to  the  members  of  a  general  court-martial 
statin°  in  part:  "  While  the  department  is  unable  to  state  which  of  the  officers  com- 
posing the  court  voted  for  acquittal  or  to  ascertain  how  any  member  voted,  in  view 
of  the  oath  reciuired  by  law,  which  prohibits  each  member  from  divulging  his  vote 
unless  required  to  do  so  by  due  process  of  law,  I  can  not,  however,  believe  that  the 
acquittal  of  Lieutenant  *  *  *  represents  the  opinion  of  more  than  a  bare  majority 
of  the  members.  In  the  absence  of  positive  proof  to  the  contrary,  I  am  unwilling  to 
believe  that  the  ideals  of  duty  and  responsibility  of  all  the  members  of  the  court  are 
so  low  as  to  exonerate  Lieutenant  *  *  *  of  neglect  of  duty.  File  26251-10788,  Sec. 
Navy,  Nov.  19, 1915. 

23.  Forms  ol  Procedure — Violations  of  instructions  contained  in.    See  CKITICISM  OF 

COURTS-MARTIAL,  36. 

24.  Glaringly  Inadequate  sentence.    See  ADEQUATE  SENTENCES,  15;  CRITICISM  OF 

COURTS-MARTIAL,  35. 

25.  Gross  carelessness— Of  court  and  judge  advocate.    See  COURT,  10;  CRITICISM  OF 

COURTS-MARTIAL,  5. 


140  CRITICISM   OF   COURTS-MARTIAL. 

26.  "  Honor  and  dignity  of  Navy"— The  findings  and  acquittals  of  the  court  were  disap- 

proved by  the  convening  authority,  who  stated: 

"The  action  of  the  court  in  this  case  shows  a  decided  lack  of  appreciation  of  the 
honor  and  dignity  of  the  Navy,  but  as  the  commander  in  chief  hasexhausted  his  power 
in  the  premises,  he  can  only  place  the  evidence  of  his  disagreement  on  the  record." 
C.  M.  0.  5,  1913,  7. 

27.  "  Incapacity  or  disregard  of  duty."    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

28.  Irregularities— Numerous  minor  irregularities  in  record.    C.  M.  O.  28, 1915. 

29.  Judge  advocate— Criticized,  etc.    See  JUDGE  ADVOCATE,  13-14,  49-50,  67-69. 

30.  Law— Imposes  on  courts-martial,  in  all  cases  of  conviction,  a  duty  to  adjudge  punish- 

ment adequate  to  the  nature  of  the  offense.  See  ADEQUATE  SENTENCES,  2-20;  CRITI- 
CISM OF  COURTS-MARTIAL. 

31.  Same— Courts-martial  must  administer  law  as  it  stands  and  not  modify  it  so  that  it 

might  accord  with  their  own  notions  of  justice.  See  ADEQUATE  SENTENCE,  6;  CRITI- 
CISM OF  COURTS-MARTIAL,  35. 

32.  Lenient  sentences.   See  ADEQUATE  SENTENCES,  3, 10;  COURT,  ill;  CRITICISM  OF 

COURTS-MARTIAL,  55. 

33.  Ludicrously  inadequate  sentences.   See  ADEQUATE  SENTENCES,  11. 

34.  "  Making  law."    See  COURT,  113;  CRITICISM  OF  COURTS-MARTIAL,  20. 

35.  Member  of  general  court-martial— Appealed  and  protested  against  the  criticism 

of  a  convening  authority — The  following  memorandum  in  the  matter  of  the  protest 
of  a  member  of  a  general  court-martial  relative  to  comments  by  the  Commander  in 
Chief  of  the  Asiatic  Fleet  in  Fleet  General  Court-Martial  Order  No.  22,  is  published  for 
the  information  of  the  naval  service: 

The  protest  of  this  officer  against  the  action  of  the  convening  authority  in  Fleet  Gen- 
eral Court-Martial  Order  No.  22  has  been  considered  with  the  utmost  care  by  the 
department.  This  officer  was  a  member  of  a  general  court-martial,  convened  by  the 
commander  in  chief  for  the  trial  of  an  officer  of  the  Navy  upon  three  charges—"  Drunk- 
enness," "Scandalous  conduct  tending  to  the  destruction  of  good  morals,"  and 
"  Falsehood. "  The  court  found  the  accused  guilty  of  the  first  two  charges,  and  not 
guilty  of  the  third  charge,  and  sentenced  him  to  be  reduced  five  numbers  in  his  grade. 
Three  members  of  the  court ,  of  whom  this  officer  was  one,  recommended  the  accused" 
to  the  clemency  of  the  revising  power.  The  convening  authority  returned  the  record 
of  proceed  in  fjs  to  the  court  for  a  reconsideration  of  the  findings  and  sentence ,  express- 
ing his  astonishment  at  the  finding  of  "not  guilty  "  upon  the  third  charge,  and  calling 
the  attention  of  the  court  to  section  1024,  par.  51,  of  the  Revised  Statutes,  and  to  para- 
graphs 3  and  4  of  article  1905  of  the  Navy  Regulations  which,  in  substance,provide 
that  it  is  the  duty  of  courts-martial  to  adjudge  an  adequate  punishment  for  offenses  of 
which  an  accused  is  conyicted.and  that  mitigating  circumstances, if  any  appear  .may  be 
reported  to  the  convening  authority  as  grounds  for  recommending  clemency.  [Navy 
Regulations,  1913,  R-808,  R-811.]  Upon  reconsideration,  the  court  decided  to  adhere: 
to  its  former  findings  and  sentence.  The  convening  authority  thereupon  approved 
the  proceedings  and  findings  upon  the  first  and  second  charges,  and  disapproved  the 
finding  upon  the  third  charge  and  the  sentence,  expressing  the  opinion  that  the  finding 
upon  the  third  charge  should  have  been  "  guilty ,  "and  that  the  sentence  imposed  was 
so  inadequate  for  the  offenses  of  which  the  accused  was  found  guilty  that  it  ought  not 
to  serve  as  a  precedent  in  future  cases. 

The  result  of  this  action  by  the  convening  authority  is  that  the  officer  tried  escapes; 
punishment  altogether,  as  no  sentence  can  be  carried  into  execution  which  has  been 
disapproved  by  the  reviewing  authority.  No  question,  therefore,  which  concerns  the 
accused  officer  is  before  the  department ,  which  is  without  power  in  the  premises. 

In  his  review,  however,  of  the  proceedings,  the  convening  authority  adversely  criti- 
cized the  court  for  its  action,  and  expressed  his  intention  not  again  to  assign  the  three 
officers  who  joined  in  the  recommendation  for  clemency  to  duty  as  members  of  courts- 
martial.  It  is  unnecessary  to  set  forth  in  full  the  criticism  which,  with  a  discussion  of 
the  evidence,  appears  in  the  General  Court-Martial  Order  referred  to.  It  is  enough 
to  say  that  it  was  extremely  severe.  Against  this  criticism  this  officer  protests  and 


appeals  to  the  department  for  redress. 
This  protest  and  appeal,  f 


_  r _,  forwarded  through  military  channels,  comes  to  me  bearing 

the  indorsement  of  tne  convening  authority, asserting  that  the  action  which  he  took 
upon  the  court-martial  was  within  the  limits  of  the  authority  conferred  upon  him  by 
law,  regulations,  and  practice;  also  an  indorsement  by  the  Bureau  of  Navigation  .sub- 
mitting that  the  officer  who  appealed  proceeds  upon  a  mistaken  view  of  his  rights  in  the 
premises,  and  that  "the  action  of  the  commander  in  chief  in  this  case  should  be  fully 


CRITICISM   OF   COURTS-MARTIAL.  141 

and  plainly  supported,  and  that  an  order  should  be  published  looking  to  the  reforma- 
tion of  the  apparent  lax  ideas  of  certain  officers  of  the  N  avy ,  when  members  of  general 
courts-martial  convened  to  try  one  of  their  comrades. " 

The  authority  of  the  convening  authority  is  derived  from  article  38  of  the  "  Articles 
for  the  Government  of  the  Navy": 

"  General  courts-martial  may  be  convened  by  the  President,  the  Secretary  of  the 
Navy,  or  the  commander  in  chief  of  a  fleet  or  squadron;  but  no  commander  of  a  fleet 
or  squadron  in  the  waters  of  the  United  States  shall  convene  such  court  without 
express  authority  from  the  President. "  [This  has  been  modified  by  act  of  August 
29, 1916  (39  Stat.  586).  See  CONVENING  AUTHORITY,  27.] 

The  commander  in  chief,  therefore,  of  a  fleet  or  squadron  in  foreign  waters  has  the 
same  right  to  convene  a  general  court-martial  as  the  President  or  the  Secretary  of  the 
Navy. 

The  convening  authority  is  the  reviewing  authority,  except  where  the  sentence  is 
death  or  the  dismissal  of  a  commissioned  or  warrant  officer.  (Article  53,  "Articles  for 
.the.  Government  of  the  Navy. ")  The  sentence  of  the  court  can  be  executed  upon  the 
approval  of  the  convening  authority,  and  it  is  rendered  of  no  effect  by  his  disapproval. 
The  commander  in  chief  of  a  fleet  or  squadron  in  foreign  waters  who  has  convened  a 
court-martial  has  the  right  and  duty  of  either  approving  or  disapproving  its  pro- 
ceedings, findings,  and  sentence,  as  his  own  judgment  shall  dictate.  By  law,  the 
discretion  is  vested  in  him,  and  can  not  be  exercised  by  any  other  person. 

The  language  of  the  Supreme  Court  in  the  case  of  Runkle  v.  United  States  (122  U.S., 
543),  while  speaking  of  the  authority  and  duty  of  the  President  when  he  is  the  review- 
ing authority,  applies  equally  in  the  case  of  the  Secretary  of  the  Navy  or  the  command- 
er in  chief  of  a  fleet  or  squadron  in  foreign  waters,  when  either  of  those  officials  is  the 
reviewing  authority.  The  court  said :  "  He  has  been  made  by  law  the  person  whose 
duty  it  is  to  review  the  proceedings  of  courts-martial  in  cases  of  this  kind .  This  implies 
that  he  is  himself  to  consider  the  proceedings  laid  before  him,  and  decide  personally 
whether  they  ought  to  be  carried  into  effect .  Such  a  power  he  can  not  delegate.  His 
personal  judgment  is  required,  as  much  so  as  it  would  have  been  in  passing  on  the 
case  if  he  had  been  one  of  the  members  of  the  court-martial  itself. "  While  the  Sec- 
retary of  the  Navy,  acting  with  the  authority  of  the  President,  may  mitigate  or  remit 
any  penalty  imposed  by  a  court-martial,  yet  over  the  discretion  thus  vested  by  law  in 
the  commander  in  chief  of  the  fleet  he  has  no  control.  The  Secretary  can  only  inquire 
whether,  in  the  exercise  of  his  discretion,  the  commander  in  chief  has  acted  within  the 
limits  of  his  authority  or  has  overstepped  them.  In  considering  this  question,  it  is 
deemed  clear  that  in  this  respect  the  limits  of  his  authority  are  exactly  those  of  the 
President,  or  the  Secretary  of  the  Navy,  when  they  are  the  convening  and  reviewing 
authorities. 

Winthrop,  in  his  "Military  Law  and  Precedents,"  second  edition,  volume  1,  page 
692,  states  the  law  as  follows: 

"The  expression  of  a  disapproval  is  sometimes  and  properly  accompanied  by  ani- 
madversion upon  the  court,  the  prosecution,  the  administration  of  a  command,  etc. 
Such  comment  has  not  unfrequently  been  added  where  the  court,  in  the  opinion  of  the 
reviewing  authority,  has  failed  to  appreciate  the  gravity  of  the  offense  and  awarded  a 
too  lenient  punishment. " 

And  on  pa?e  730:  "  To  the  formal  action  or  orders  thus  indicated  the  commander  or 
President  may,  if  he  thinks  proper,  add  such  reflections  upon  the  proceedings  or  con- 
clusions of  the  court,  the  conduct  of  the  prosecution  or  defense,  the  make-up  of  the 
record,  etc.,  as  the  facts  may  warrant.  Such  comments  have  the  more  frequently 
been  resorted  to  where  the  finding,  sentence,  etc.,  has  been  in  whole  or  in  part  disap- 
proved; the  same,  however,  have  been  not  unusual  where  it  has  upon  the  whole  been 
deemed  expedient  that  the  proceedings  or  sentence  should  be  approved.  In  some 
instances  the  remarks  have  taken  the  form  of  emphatic  stricture  or  censure.  Thus 
courts  have  been  severely  criticized  for  acquitting  where,  in  the  opinion  of  the  review- 
ing officer,  the  testimony  called  for  a  conviction;  for  imposing  sentences  regarded  by 
him  as  inadequate  to  the  offenses  found;  for  findings  held  by  him  to  be  unwarranted 
by  the  proof;  for  errors  in  admitting  or  rejecting  evidence;  for  ignorance  or  neglect 
inducing  grave  irregularities  in  the  proceedings  or  form  of  the  record;  for  the  personal 
misbehavior  of  the  members,  etc."  And  on  page  732:  "  In  this  connection  if  may  be 
said  that  where  the  subject  of  the  unfavorable  criticism  is  an  error  capable  of  being 
corrected  by  the  return  of  the  proceedings  to  the  court  for  the  purpose,  it  is  but  just 
that  this  course  should  first  be  pursued.  Further,  the  reviewing  authority,  if  he 
deems  it  bis  duty  to  indulge  in  reflections  such  as  above  instanced,  should  in  general, 


142  CRITICISM  OF   COURTS-MARTIAL. 

where  practicable,  confine  himself  to  comments  upon  facts,  and,  rather  than  resort  to 
direct  strictures  upon  individuals,  should  prefer  or  cause  to  be  preferred  against  them 
formal  charges.  Such  strictures,  however,  are  in  some  cases  quite  legitimate  and  can 
not  be  avoided.  In  such  cases,  if  the  party  reflected  upon  demands  a  trial  by  court- 
martial  for  the  misconduct  imputed,  his  application  can  not  in  general  fairly  be 
denied." 

The  practice  in  the  War  Department,  as  well  as  the  Navy  Department,  has  been 
in  accordance  with  these  statements  of  Winthrop.  There  have  been  very  many 
instances  of  severe  criticism  of  courts-martial  by  the  reviewing  authority.  It  would 
be  burdensome  to  recite  all  of  such  instances,  but  some  of  them  may,  with  profit,  be 
referred  to. 

A  sentence  was  disapproved  by  the  Secretary  of  the  Navy,  as  inadequate,  the  Sec- 
retary saying:  "Yet  the  public  is  to  be  informed  that  a  court  of  officers  of  the  Navy 
consider  this  capital  offense,  attended  by  no  circumstances  of  mitigation,  sufficiently 
punished  by  suspension  for  six  months  without  pay,  and  with  pay  for  the  same 
period,  the  latter  being  equivalent  to  leave  of  absence  for  six  months.  The  depart- 
ment declines  to  outrage  public  opinion  and  its  own  sense  of  justice,  or  to  mislead  the 
younger  officers  of  the  Navy,  by  approving  a  sentence  so  glaringly  inadequate." 
G.  O.  58,  June  29, 1865. 

In  a  case  where  the  accused  was  charged  with  failing  to  do  his  utmost  to  capture  or 
destroy  an  enemy's  vessel,  the  court  adjudged  him  "guilty  of  the  charge  in  a  less 
degree  than  charged,"  and  sentenced  him  to  be  suspended  from  duty  on  leave  pay  for 
two  years.  The  Secretary  of  the  Navy  returned  the  record  to  the  court  for  a  revision 
of  the  rinding,  whereupon  the  court,  upon  revision,  found  the  accused  "guilty,"  but 
awarded  the  same  sentence  as  before.  The  Secretary  disapproved  the  sentence  as 
inadequate,  saying,  among  other  things:  "The  court,  in  this  case  of  conviction  of  a 
capital  offense,  has  adjudged  a  punishment  which  is  obviously  nothing  more  than  a 
nominal  punishment,  if  it  be  ev«n  as  much.  Suspension  from  duty  for  two  years  on 
Meave  pay  Ms,  in  itself,  nothing  more  than  leave  of  absence  for  the  same  period.  *  *  * 
Such  punishment  as  this  no  officer  could  obtain  from  the  department  as  a  favor.  The 
department-is  therefore  forced  to  conclude  that  in  awarding  this  pretended  punish- 
ment the  court-martial  *  *  *  has  disregarded  the  law.  It  may  be  that  the  court, 
or  members  of  it,  deemed  the  law  under  which  the  accused  was  arraigned  one  of  a 
harsh  character;  but  even  admitting  that  it  be  so,  it  is  still  law,  and  they  were  bound 
by  a  solemn  obligation  to  administer  it  as  it  stands,  and  not  to  modify  it  so  that  it 
might  accord  with  their  own  notions  of  justice.  They  had  no  more  authority  to  do 
so  than  to  repeal  the  law.  The  final  proceedings  of  the  court  are  inexplicable  to  the 
department.  *  *  *  Their  finding  on  the  charge  declares  him  guilty,  but  their 
finding  on  the  specification  and  the  nominal  punishment  awarded,  imply  that  they 
considered  him  not  guilty.  The  incongruous  whole  has  the  aspect  of  an  unsuccesslul 
attempt  at  comoromise  between  those  members  of  the  court  who  believed  the  accused 
guilty  and  others  who  believed  him  not  guilty."  G.  O.  68,  Dec.  6, 1865. 

It  may  be  observed  that  the  court  thus  criticised  was  presided  over  by  Vice  Admiral 
Farragut  and  had  as  members  Rear  Admirals  Paulding,  Day  is,  and  Dahlgren. 

In  a  case  where  an  officer  was  charged  with  "  Culpable  inefficiency  in  the  performance 
of  duty"  and  was  acquitted  by  the  court,  the  Secretary  of  the  Navy,  after  a  review  of 

""*'  had 
pon 
iity 

for  such  impotent  conclusion  shall  always  rest  solely  upon  officers  composing  courts- 
martial  and  not  upon  the  Navy  Department."  C.  M.  O.  3, 1884. 

Where  an  officer  was  charged  with  "Neglect  of  duty"  and  acquitted  by  the  court, 
the  Secretary  of  the  Navy,  after  a  discussion  of  the  evidence,  disapproved  the  finding. 
C.  M.  O.  41, 1888. 

Where  an  apprentice  was  found  guilty  of  the  charge  of  "Conduct  to  the  prejudice 
of  good  order  and  discipline,"  and  upon  reconsideration  by  direction  of  the  depart- 
ment the  court  adhered  to  the  sentence  awarded,  the  Secretary  of  the  Navy  disap- 
proved the  proceedings,  finding,  and  sentence,  saying:  "  It  is  better  that  the  accused 
should  escape  punishment  than  that  a  manifestly  improper  sentence  should  receive 
the  approval  of  the  department  and  thus  become  a  precedent  for  the  guidance  of 
courts-martial  in  future  cases."  C.  M.  0. 102, 1893. 

Where  an  officer  was  charged  with  "  Drunkenness  on  duty,"  the  court  sustained  his 
plea  in  bar,  and,  after  the  record  was  returned  to  it  for  reconsideration,  adhered  to  its 


CRITICISM   OF   COURTS-MARTIAL.  143 

former  decision,  the  Secretary  of  the  Navy  disapproved  the  action  of  the  court,  saying: 
"It  is  difficult  to  understand  the  display  of  obstinacy  or  obtundity  thus  presented, 
inasmuch  as  the  court  thereby  assumes  to  put  its  own  interpretation  of  precedents  and 
decisions  originally  established  and  rendered  by  the  department  above  the  inter- 
pretation placed  thereon  by  the  department  itself.  For  the  failure  of  justice  which 
thereupon  ensues,  and  the  injury  which  the  discipline  of  the  service  must  necessarily 
suffer  at  the  hands  of  those  to  whom  it  is  entrusted,  and  by  whom  it  should  be  most 
zealously  guarded,  the  court  is  responsible."  C.  M.  0. 104,  1897. 

Where  an  officer  was  charged  with  "  Absence  from  duty  without  leave"  and  "  Scan- 
dalous conduct  tending  to  the  destruction  of  good  morals"  and  found  guilty  of  both 
charges  and  sentenced  to  be  reprimanded  by  the  Secretary  of  the  Navy,  the  sentence 
was  disapproved  by  the  Secretary  of  the  Navy,  who  said:  "By  the  sentence  awarded, 
the  court  not  only  disregards  explicit  provisions  of  law  and  regulations  on  the  subject, 
but  usurps  the  functions  of  the  convening  authority  by  practically  exercising  clem- 
ency, and.  furthermore,  in  imposing  so  slight  a  punishment  for  a  grave  offense  brings 
the  discipline  of  the  service  into  disrepute."  C.  M.  0. 132, 1897. 

When  an  officer  was  charged  with  " Drunkenness  on  duty,"  and  "Conduct  unbe- 


express  its  simple  astonishment  that  any  court  of  officers  could  be  found,  a  majority 
of  whom,  at  least,  should  exhibit  such  evidence  of  their  incapacity  or  disregard  of  duty 
as  to  acquit  the  accused  of  a  charge  so  thoroughly  and  completely  proven.  *  *  *  In 
the  opinion  of  the  department  such  aresult  tends  gjreatly  to  injure  the  discipline  of  the 
service  and  to  impair  all  confidence  in  courts-martial,  especially  on  the  part  of  enlisted 
men,  who  can  not  help  noting  the  contrast  between  such  an  indication  of  favoritism 
toward  an  officer  and  the  severe  accountability  to  which  they  are  held  under  similar 
charges."  C.  M.  O.  36, 1898. 

Where  an  officer  was  charged  with  "Absence  from  his  duty  and  station  without 
leave,"  "Disobedience  of  orders,"  and  "Drunkenness,"  a  commander  in  chief,  as  the 
convening  authority,  expressed  the  opinion  that  the  sentence  of  the  court  was  entirely 
inadequate  to  the  nature  of  the  offense,  although  he  approved  the  sentence  as  the 
accused  would  otherwise  go  unpunished.  (C.  M.  0. 30, 1885.) 

A  commander  in  chief,  under  the  same  conditions,  pronounced  a  sentence  inade- 
quate, and  approved  it  only  because  otherwise  the  accused  would  escape  punishment 
altogether.  C.  M.  O.  9, 1893. 

In  the  War  Department  like  instances  may  be  found.  Some  of  such  instances  are 
cited  by  Winthrop  in  the  note  on  page  731  of  volume  1,  to  which  reference  is  made. 
It  appears  there  that  by  General  Order  64,  Department  of  the  Ohio,  1864,  a  General  of 
the  Army  ordered  the  members  of  a  court  to  be  reprimanded,  and  cautioned  the 
Assistant  Adjutant  General  of  the  department  against  putting  any  officer  of  this  court 
on  any  important  court-martial  duty. 

Some  additional  cases  may  be  cited.  For  example:  Where  an  officer  was  acquitted 
of  "Disobedience  of  orders,"  and  "Neglect  of  duty,"  the  Secretary  of  War,  in  disap- 
proving the  findings,  says:  "The  ruling  made  that  the  accused  was  not  acting  under 
orders  is  creditable  neither  to  the  court  that  made  it  nor  to  the  officer  who  permitted 
such  a  defense  to  be  presented.  *  *  *  It  is  not  encouraging  to  find  that  a  court- 
martial,  composed  of  officers  of  the  Army  of  experience,  does  not  think  proper  even 
to  censure  an  officer  who,  though  without  criminal  intent,  has  conducted  an  impor- 
tant business  matter  intrusted  to  him  in  a  manner  which  would  not  be  tolerated  by  a 
private  employer."  (War  Department.  General  Court-martial  Order  No.  46,  Oct. 
15,1883.) 

Where  an  officer  serving  with  the  Army  in  the  Philippines  was  acquitted  by  court- 
martial  of  the  charge  made  against  him,  the  major  general  commanding,  after  review- 
ing the  evidence,  disapproved  the  acquittal,  saying:  "  There  has  been  a  miscarriage 
of  justice  in  this  case. "  (May  7, 1902.) 

Where  an  officer  of  the  Army  was  charged  with  "Conduct  unbecoming  an  officer 
and  a  gentleman"  and  by  the  court  found  "not  guilty,"  but  guilty  of "  Conduct  to  the 
prejudice  of  good  order  and  discipline, ' '  and  sentenced  to  suspension  from  rank,  duty, 
and  pay  for  three  years,  the  President  of  the  United  States  returned  the  record  to  the 
court  for  reconsideration  of  the  findings  and  sentence,  saying:  "Neither  are  believed 
to  be  commensurate  with  the  offenses ' '  found  proved  in  the  specifications.  In  return- 

50756°— 17 10 


144  CRITICISM   OF   COURTS-MARTIAL. 

ing  it  to  the  court  he  accompanied  it  with  a  communication  of  the  Attorney  General, 
in  which  the  President  expressed  his  concurrence.  In  that  communication  the  follow- 
ing language  is  used:  "  I  find  it  difficult  to  reconcile  this  conclusion  with  any  recognized 
standard  of  either  officerlike  or  gentlemanlike  conduct.  *  *  *  The  action  of  the 
court  as  a  whole  seems  to  involve  a  serious  lowering  of  that  high  standard  of  honor 
which  from  the  earliest  days  has  been  the  pride  and  glory  of  pur  military  service." 
[18  Op.  Atty.  Gen .,  113, 117, 118.]  The  C9urt  upon  reconsideration  adheVed  to  its  find- 
ing, but  changed  the  sentence  to  suspension  for  one  year  and  a  reduction  in  rank.  The 
President  again  returned  the  record  to  the  court  for  a  reconsideration  of  the  sentence, 
which  was  incapable  of  execution.  The  court  thereupon  sentenced  the  accused  to 
suspension  from  rank  and  duty  for  twelve  years  and  forfeiture  of  one-half  pay.  The 
President  approved  the  sentence,  so  that  the  proceedings  should  not  be  without 
results,  and  said:  "  It  is  difficult  to  understand  how  the  court  could  be  willing  to  have 
the  officer  tried  retained  as  a  pensioner  upon  the  Army  Register  while  it  expressed  its 
sense  of  his  unfltness  to  perform  the  duties  of  his  important  office  by  the  imposition 
of  two  different  sentences. "  (War  Department,  General  Court-martial  Order  No.  19, 
Feb.  24, 1885.) 

The  validity  of  the  final  sentence  in  the  above  cited  case  was  questioned  in  the 
courts  upon  the  ground,  among  others,  that  the  action  of  the  President  was  unwar- 
ranted. The  action,  however,  was  sustained  by  the  Supreme  Court.  (Swaim  v. 
United  States,  165  United  States,  553.)  [See  also  28  Ct.  Cls.  173.] 

It  thus  appears  in  practice  that  the  reviewing  authority  has  disapproved  findings 
of  acquittal  and  condemned  sentences  as  inadequate,  criticized  and  censured  courts- 
martial  and  directed  that  their  members  no  longer  serve  in  such  positions.  I  am 
advised  by  the  Judge  Advocate  General  that  such  practice  has  been  continuous,  and 
that  many  instances  of  it  can  be  found,  and  that  hitherto  no  question  has  been  raised 
that  the  practice  was  regular  and  lawful. 

The  conclusion  of  the  department,  therefore,  is  that  the  commander  in  chief,  as  the 
convening  and  reviewing  authority  of  the  court-martial  in  question,  was  within  the 
limits  of  his  authority  in  criticizing  the  finding  of  "not  guilty"  upon  the  third  charge 
and  pronouncing  the  sentence  inadequate  and  in  his  criticism  and  animadversion 
upon  the  court. 

It  is  not  to  be  inferred  from  this  decision  that,  although  the  power  of  censure  by  the 
reviewing  authority  of  courts-martial  is  clearly  shown  to  exist  by  an  unbroken  practice 
of  many  years,  it  should  be  indiscriminately  exercised.  It  is  to  be  kept  in  mind  that 
members  of  courts-martial  must  .be  independent  in  their  action  and  are  not  subject  to 
control.  It  is  to  be  regretted  that  an  occasion  has  arisen  which,  in  the  judgment  of  the 
reviewing  authority,  demanded  so  severe  a  censure  as  was  inflicted  in  this  case. 
Nevertheless,  as  the  members  of  the  courts  must  be  the  judges  of  the  measure  of  their 
duty,  so  the  reviewing  authority  must  be  the  j  udge  of  the  measure  of  his  duty.  While 
the  exercise  of  the  discretion  of  the  reviewing  authority  is  uncontrollable,  there  is  a 
clear  remedy  for  an  abuse  of  it.  If  it  should  appear  in  any  case  that,  in  the  exercise  of 
his  authority  of  reviewing  the  proceedings  of  courts-martial  convened  by  him,  a 
commander  in  chief  had  acted  capriciously,  cruelly,  with  evident  lack  of  judgment,  or 
from  improper  motives;  in  short,  if  he  had  shown  himself  unfit  to  be  intrusted  with 
the  authority  which  the  law  attaches  to  his  position,  the  department  has  the  power  to 
withhold  from  him  that  authority  in  the  future  by  recalling  him  from  his  station.  It 
is.  however,  considered  that  in  this  instance  the  convening  authority  has  not  shown 
himself  unworthy  of  the  continued  confidence  of  the  department.  On  the  contrary, 
in  view  of  the  evidence  before  the  court,  without  weighing  too  nicely  the  terms  of  his 
censure,  it  is  believed  that  he  was  actuated  by  a  high  sense  of  duty  and  inspired  by  a 
regard  for  the  honor  and  welfare  of  the  service. 

I  am  invited  by  the  Bureau  of  Navigation  to  publish  an  order  concerning  perform- 
ance of  the  duties  of  courts-martial.  It  seems  to  me  that  nothing  more  impressive  can 
be  said  than  to  present  the  fact  that  the  bureau  charged  with  the  immediate  govern- 
ment and  discipline  of  the  personnel  of  the  Navy  has  deliberately  presented  to  the 
department  sucn  a  request. 

The  foregoing  decision  of  the  department  will  be  communicated  to  the  officers  who 
have  protested  against  the  action  of  the  convening  authority  in  the  case,  and  to  the 
commander  in  chief  of  the  Asiatic  Squadron  for  the  information  of  the  officers  belong- 
ing to  the  squadron  under  his  command.  File  7719-03,  Sec.  Navy,  Nov.  18,  1903. 
36.  Members  of  a  summary  co.urt-martial  appeal  and  protest  against  criticism 
of  senior  officer  present — The  right  of  the  reviewing  authority  to  censure  members 
of  a  court-martial  individually  for  the  manner  of  performing  duty  was  carefully  con- 


CRITICISM    OF   COURTS-MARTIAL.  145 

sidered  and  sustained  by  the  Secretary  of  the  Navy  in  a  decision  published  to  the 
service  November  18, 1903  (see  CRITICISM  OF  COURTS-MARTIAL,  35),  upon  the  protest 
of  an  officer  who  was  a  member  of  a  general  court-martial.  In  support  of  its  con- 
clusion the  department,  in  the  case  mentioned,  cited  precedents  existing  in  both  the 
Army  and  Navy,  and  held  that  direct  strictures  upon  individuals  are  in  some  cases 
quite  legitimate  and  can  not  be  avoided,  although  in  general  the  members  of  the  court 
should  themselves  be  brought  to  trial  upon  formal  charges.  (On  appeal  the  depart- 
ment's decision  was  approved  by  the  President,  file  155-04.) 

The  entire  membership  of  a  general  court-martial  has  repeatedly  been  censured 
by  the  department  for  errors  in  the  record.  (See  C.  M.  O.  14,  1913,  5;  27,  1913,  12.) 
Again,  the  department  has  commented  on  the  fact  that  in  violation  of  instructions 
contained  in  the  Forms  of  Procedure  the  president  of  a  general  court-martial  in  an 
important  case  throughout  the  trial  made  rulings  upon  the  admissibility  of  evidence 
and  other  questions  raised  by  counsel  without  consulting  the  other  members  of  the 
court,  and  that  the  errors  so  made  were  obvious  and  fully  covered  by  elementary 
rules.  G.  C.  M.  Rec.  23553. 

In  the  present  case,  the  inadequacy  of  the  sentences  imposed  by  the  summary  court- 
martial  m  question  is  so  plainly  apparent  on  its  face  as  to  render  discussion  with 
reference  thereto  unnecessary. 

The  commanding  officer  is  charged  with  the  discipline  of  his  command,  and  is  pre- 
sumably more  experienced  than  the  officers  under  his  jurisdiction.  Nevertheless, 
when  he  convenes  a  court-martial  for  the  trial  of  an  offender,  if  he  deems  the  punish- 
ment adjudged  inadequate  his  power  over  it  is  limited  to  disapproval.  He  can  not 
dictate  what  sentence  shall  be  imposed,  nor  can  he  add  to  the  punishment  adjudged. 
But  while  he  is  without  such  power  over  the  sentence,  he  is  not  without  remedy 
against  the  members  of  the  court  if  he  considers  them  responsible  for  a  miscarriage  of 
justice.  In  such  cases  the  members  of  the  court  themselves  may  be  brought  to  trial 
or  they  may  be  individually  censured  for  their  action.  In  the  case  of  general  courts- 
martial  the  trial  of  the  members  under  such  circumstances  would  ordinarily  be  the 
only  course  open,  for  the  reason  that  their  oath  binds  them  to  secrecy  both  as  to  their 
own  vote  and  the  vote  of  each  other,  unless  required  to  disclose  same  "before  a  court  of 
justice  in  due  course  of  law."  As  to  .summary  courts-martial,  it  is  not  necessary  that 
the  members  be  brought  to  trial,  as  they  are  not  bound  by  oath  to  secrecy  and  their 
vote  may  be  officially  ascertained  without  judicial  proceedings. 

In  this  case  the  department  held  that  the  reviewing  authority  had  full  authority  to 
censure  the  members  of  the  summary  court-martial  for  adjudging  an  inadequate  sen- 
tence and  to  place  the  censure  on  the  reports  on  fitness  of  such  officers.  File  25675-9- 
10-11,  Sec.  Navy,  Oct.  28, 1915.  See  also  OATHS,  47;  REPORTS  ON  FITNESS,  3. 

37.  Members  and  president  criticized— The  Secretary  of  the  Navy  concurred  in  the 

opinion  of  the  convening  authority  (fleet)  relative  to  the  inadequacy  of  the  sentence 
adjudged  in  this  case,  and  in  accordance  with  the  recommendation  of  the  Bureau  of 
Navigation  so  informed  the  president  and  members  of  the  court  by  letter.  C.  M.  O. 
6, 1916.  See  also  CRITICISM  OF  COURTS-MARTIAL,  35. 

38.  Same— Where  a  court  adjudged  an  inadequate  sentence  in  the  case  of  a  warrant  officer 

and  twice  refused  in  revision  to  make  it  adequate,  the  convening  authority  (fleet) 
remarked:  "Attention  having  been  twice  called  to  the  inadequacy  of  the  sentence 
the  court  has  entirely  failed  to  realize  its  responsibilities  to  the  naval  service."  The 
department  concurred  in  these  remarks,  stating  that  the  sentence  was  grossly  inade- 
quate. "The  department  also_  feels  that  to  permit  this  officer  to  continue  to  lower 
the  reputation  of  the  commissioned  personnel  by  his  irresponsible  and  unofficerlike 
conduct  is  adverse  to  the  interests  of  justice  and  discipline  in  the  naval  service,  and 
that  the  action  of  the  court  in  this  case  has  resulted  in  a  miscarriage  of  justice.  A 
copy  of  the  department's  remarks  in  this  case  will  be  forwarded  to  the  commander 
in  chief  in  order  that  he  may  refer  it  to  the  president  and  members  of  the  court." 
This  officer  pleaded  guilty  to  "Drunkenness"  and  had  twice  before  been  found  guilty 
by  general  courts-martial  of  offenses  involving  drunkenness.  File  26262-2610,  Sec. 
Navy,  July  21,  1916.  See  also  C.  M.  O.  12,  1895,  2;  34,  1916;  CRITICISM  OF  COURTS 
MARTIAL,  35. 

39.  Miscarriage  of  justice.    See  CRITICISM  OF  COURTS-MARTIAL,  16,  35. 

40.  Misspelled  words— In  record  of  proceedings.    C.  M.  O.  27, 1913, 11-12;  28, 1915. 

41.  Names  of  members— And  judge  advocate  published  in  Court-Martial  Order.    C.  M. 

0.38,1915,3. 


146  CRITICISM    OF   COURTS-MARTIAL. 

42.  Nominal  punishment.    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

43.  Obstinate.   C.  M.  0. 104, 1897, 5-6.    See  also  CRITICISM  OF  COURTS-MARTIAL,  16, 19, 20, 

35,  48. 

44.  Obtundity.    C.  M.  O.  104,  1897,  5-6.    See  also  CRITICISM  OF  COURTS-MARTIAL.  35, 48. 

45.  Outraging  public  opinion— The  department  declined  to  outrage  public  opinion  and 

its  own  sense  of  justice,  or  to  mislead  the  younger  officers  of  the  Navy,  by  approving 
a  glaringly  inadequate  sentence.  G.  O.  58,  June  29,  1865.  See  also  ADEQUATE  SEN- 
TENCES, 15;  CRITICISM  OF  COURTS-MARTIAL,  35. 

46.  Pardon— Courts-martial  have  not  the  power  to  pardon.    See  ADEQUATE  SENTENCES,  5; 

PARDONS,  9. 

47.  Pay,  forfeiture  of— Court-martial  criticized  for  adjudging  loss  of  pay  in  an  officer's 

case.    C.  M.  O.  48, 1915.    See  also  Pay,  100. 

48.  Plea  in  bar— It  is  difficult  to  understand  the  display  of  obstinacy  or  obtundity  thus 

presented,  inasmuch  as  the  court  thereby  assumes  to  put  its  own  interpretation  of 
precedents  and  decisions,  originally  established  and  rendered  by  the  department 
above  the  interpretation  placed  thereon  by  the  department  itself.  For  the  failure  of 
justice  which  thereupon  ensues,  and  the  injury  which  the  d  iscipline  of  the  service  must 
necessarily  suffer  at  the  hands  of  those  t9  whom  it  is  en  trusted,  and  by  whom  it  should 
be  most  zealously  guarded,  the  court  is  responsible.  The  fact  that  an  officer,  pre- 
sumably guilty  or  a  very  serious  offense,  has,  by  the  strained  and  illogical  construction 
adopted  by  the  court  in  this  case,  escaped  punishment,  while  a  grave  matter,  is  of 
less  consequence  than  the  permanent  injury  which  would  result  to  the  service  should 
the  department  allow  the  action  of  this  court  to  stand  as  a  precedent,  and  sanction 
thus  be  placed  upon  the  admission  into  naval  jurisprudence  of  pleas  in  bar  of  trial  of 
the  character  advanced  in  this  instance.  The  action  of  the  court  in  sustaining  the  plea 
in  bar  was  accordingly  disapproved.  C.  M.  0. 104, 1897,  5-6. 

49.  "  Pretended  punishment.''    See  CRITICISM  OF  COURTS-MARTIAL,  35  (p.  142). 

50.  Public  reprimand— Court-martial  criticized  for  adjudging  public  reprimand.    See 

PUBLIC  REPRIMAND,  5, 6, 11. 

51.  Record  of  proceedings—  Errors  in.    See  CRITICISM  OF  COURTS-MARTIAL,  13, 28, 35, 40. 

52.  Reflections— Convening  authority  may  make.   See  CRITICISM  OF  COURTS-MARTIAL, 

35,  36. 

53.  Regulations — Courts-martial  should  uphold — The  department  considers  it  timely 

to  advise  courts-martial  that  neglect  on  the  part  of  members  of  naval  courts-martial 
to  uphold  the  regulations  governing  the  Navy  is  as  grave  a  neglect  of  duty  and  as  far- 
reaching  to  its  injurious  effect  upon  the  service  as  neglect  or  violation  of  those  regula- 
tions by  officers  in  positions  of  responsibility.  C.  M.  O.  43, 1906,  3. 

54.  Repealing  law.    See  ADEQUATE  SENTENCES,  6. 

55.  Reprimanded  for  leniency — Letters  were  addressed  to  officers  who  constituted  the 

court,  by  express  direction  of  the  President  of  the  United  States,  calling  attention  to 
the  fact  that  by  their  leniency  in  permitting  the  accused  (officer)  to  remain  in  the 
service  after  committing  offenses  meriting  dismissal  they  had,  without  benefiting  him, 
prejudiced  the  best  interests  of  the  Navy,  the  officer  having  a  second  time  brought 
scandal  and  disgrace  upon  the  naval  service.  C.M.O.  47,1906.  See  also  file  3401  -16. 

56.  Rulings  upon  admissibility  of  evidence— President  of  general  court-martial  criti- 

cized.   See  CRITICISM  OF  COURTS-MARTIAL,  36  (p.  145). 

57.  Secretary  of   the   Navy — May  reprimand,  censure,  criticize,  commend,  etc.    See 

COMMENDATORY  LETTERS,  2;  PUBLIC  REPRIMAND,  18;  REPRIMAND,  10.  SECRETARY 
OF  THE  NAVY,  63. 

58.  Sentence,  inadequate.   See  ADEQUATE  SENTENCES;  CRITICISM  OF  COURTS-MARTIAL. 

59.  Shielding  accused.    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

60.  Stricture,  emphatic.    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

61.  Stubborn.    See  CRITICISM  OF  COURTS-MARTIAL,  35,  43. 

62.  Summary  courts-martial — Senior  member  of  a  summary  court-martial  was  criti- 

cized by  name  by  reviewing  authority  and  printed  in  Court-Martial  Order.  C.  M.  O. 
5,  1912,  6. 

63.  Same — Members  censured  and  censure  entered  on  reports  on  fitness.    See  CRITICISM  OF 

COURTS-MARTIAL,  36;  REPORTS  ON  FITNESS,  3. 

64.  Suspension  from  duty — Court-martial  criticized  for  adjudging.    See  SUSPENSION 

FROM  DUTY,  4,  5, 9-13. 

65.  Trial — At  unusual  hour.    See  COURT,  171;  CRITICISM  OF  COURTS-MARTIAL,  66. 

66.  "Undue  haste"  in  conducting  a  trial— The  department  criticized  a  court  for  irregu- 

larities in  record  and  for  meeting  at  unusual  hours.  "The  present  case  strikingly 
exemplifies  the  consequences  resulting  from  attempts  to  conduct  a  trial  by  general 
court-martial  in  undue  haste  and  at  unusual  hours."  C.  M.  O.  27,  1913,  11.  See 
also  COUET,  171. 


CUSTODY.  147 

CROSS-EXAMINATION. 

1.  Accused— As  a  witness.    See  WITNESSES,  1-11. 

2.  Same — Must  be  afforded  his  right  to  cross-examine  witnesses  against  him.    See  ACCUSED, 

28;  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  16;  WITNESSES,  2. 

CROSS-INTERROGATORIES. 

1.  Depositions.    C.  M.  0.47,1910,9;  5, 1916, 6.    See  also  DEPOSITIONS,  3. 

CRUELTY. 

1.  Commanding  officer — Toward  crew.    See  COMMANDING  OFFICERS,  4, 15. 

CRUSHED  BY  TURRET.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  17. 

CULPABLE. 

1.  Definition—  "Culpable"  means  "deserving  of  blame  or  censure."  It  states  a  mere 
conclusion  of  law,  and  is  not  necessarily  essential  to  the  validity  of  a  charge  or  specifi- 
cation, if  improperly  excepted  by  court  in  its  finding.  C.  M.  O.  4,  1914, 1,  3. 

CULPABLE  INEFFICIENCY  IN  THE  PERFORMANCE  OF  DUTY. 

1.  Defined  and  distinguished— From  "Neglect  of  duty."    C.  M.  O.  129,  1898.  6. 

2.  Degree — A  higher  degree  than  the  offense  "  Negligence  in  performance  of  duty."    See 

GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  12. 

3.  Same — Not  a  lesser  degree  of  "Cowardly  and  inhuman  conduct  to  the  scandal  and  dis- 

grace of  the  naval  service."    C.  M.  O.  37, 1909,  7. 

4.  Finding — "Culpably  inefficient  in  the  performance  of  duty,"  in  specification,  found 

"not  proved."    C.  M.  O.  9,  1897. 

5.  Gravamen,  Is  not— "Culpable"  not  gravamen  of  the  charge  of  "Culpable  inefficiency 

in  the  performance  of  duty  "  but  immaterial  allegation  embodying  a  mere  conclusion 
of  law—"  What  is  useful  is  not  vitiated  by  the  useless." 

Accordingly,  when  the  facts  alleged  and  found  proved  show  that  conduct  of  accused 
is  "deserving  of  blame  or  censure,"  a  charge  and  specification  are  good  and  will  sup- 
port a  sentence,  although  court  erroneously  finds  the  word  "culpable"  not  proved. 
C.  M.  O.  4, 1914, 1,  6.  See  also  C.  M.  O.  21, 1885;  40, 1891;  56, 1898;  70, 1898;  129,  1898, 
6;  89,  1901;  19,  1905,  1;  5,  1906,  1;  File  26262-1797. 

6.  Officers— Charged  with.    C.  M.  O.  9,  1897;  20, 1909;  32, 1909;  52,  1910;  12,  1910;  22, 1910; 

27,  1910;  11,  1911;  13,  1911;  24,  1911;  27,  1911;  4,  1913,  15;  3,  1914;  4,  1914;  3,  1915;  7, 
1915;  7,  1916;  8,  1916;  43,  1916:  7, 1917. 

7.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  0. 14, 1912. 

CULPABLE  INEFFICIENCY  IN  THE  PERFORMANCE  OF  DUTY  IN  VIOLA- 
TION OF  THE  NINTH  CLAUSE  OF  THE  EIGHTH  ARTICLE  OF  THE 
ARTICLES  FOR  THE  GOVERNMENT  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  23, 1913. 

CULPABLE  INEFFICIENCY  IN  THE  DISCHARGE  OF  DUTY. 

1.  Officer— Charged  with.    G.  O.  47,  Jan.  27, 1865. 

CULPABLE  NEGLIGENCE  IN  THE  PERFORMANCE  OF  DUTY. 

1.  Officer— Charged  with.    C.  M.  O.  19, 1916. 

CULPABLE  NEGLIGENCE  AND  INEFFICIENCY  IN  THE  PERFORMANCE 
OF  DUTY. 

1.  Chief  pay  clerk— Charged  with.    C.  M.  O.  28, 1916. 

2.  Guilty  In  a  less  degree  than  charged— Guilty  of  "Neglect  of  duty."    C.  M.  O.  8, 

1915,  2. 

3.  Officers— Charged  with.    C.  M.  0.  29, 1910;  6, 1911;  3, 1912;  7, 1913;  28, 1914;  3, 1915;  4, 

1915:  8,  1915;  9,  1915;  37,  1915;  38,  1915;  7,  1916:  8,  1916;  25,  1916;  26.  1916;  31, 1916. 

4.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  O.  36, 1915. 

CURRENT.    See  NAVIGATION,  21-23. 

CUSTODY. 

1.  Definition  of.  See  WALES  v.  WHITNEY,  114  U.  S.  564;  GENERAL  ORDER  No.  121,  Sept. 
17, 1914, 11. 


148  DE   FACTO. 

CUSTOMS. 

1.  Appointing  power— Can  not  be  restricted  by  a  custom.    See  APPOINTING  POWER,  1. 

2.  "  Conscience  fund" — It  is  possible  that  the  courts  would  give  legal  eflect  to  the  custom 

of  the  Treasury  Department  receiving  funds,  such  custom  having  continued  many 
years,  and  not  being  in  conflict  with  any  express  provision  of  law.  See  CONSCIENCE 
FUND. 

3.  Crime— There  can  be  no  such  thing  as  a  lawful  custom  to  commit  a  crime.    C.  M.  0. 128, 

1905, 5.    See  also  EVIDENCE.  25. 

4.  Evidence  of.   See  COLLISION,  8,  9. 

5.  Force  of  law— Established  custom  may  have  force  of  law.    C.  M.  O.  29,  1915,  7.    See 

also  COMMISSIONS,  12. 

6.  Power  of  President— To  change  established  customs.    See  File  3973-107,  Feb.  16, 1915. 

See  also  30  Op.  Atty.  Gen.  234. 

7.  Same— To  appoint  officers  can  not  be  restricted  by  custom.    See  APPOINTING  POWER,  1. 

8.  Promotion— Under  the  laws,  customs,  and  usages  of  the  naval  service,  no  officer  who  is 

unable  to  establish  his  fitness  for  promotion  can  be  retained  indefinitely  in  a  fixed 
position  in  the  Navy  List,  delaying  promotion  all  along  the  line.  File  26260-1592, 
J.  A.  G.,  June  29, 1911,  p.  6.  See  also  PROMOTION,  206. 

9.  Regulation— There  can  be  no  such  thing  as  a  legal  custom  to  disregard  a  valid  regulation. 

See  REGULATIONS,  NAVY,  26. 

CUSTOMS   OP  THE  SERVICE. 

1.  Clemency  extended — In  view  of  the  unanimous  recommendation  of  the  members  of  the 

court  that  clemency  be  shown  the  accused,  in  consideration  of  his  evident  sincerity, 
of  his  ignorance  of  the  customs  of  the  service,  etc.  C.  M.  O.  50, 1901. 

2.  Exemption  of  83  In  sentences — The  regulations  permitting  an  exception  of  $3  per 

month  for  prison  expenses,  and  the  customs  of  the  service  provide  that  this  exception  is 
for  necessary  prison  expenses,  and  this  should  be  set  forth  in  the  sentence.  C.  M.  O. 
42, 1909, 5.  See  also  EXEMPTIONS  IN  SENTENCES,  4. 

3.  Officer— The  convening  authority  in  his  remarks  stated  that  the  accused  (boatswain) 

was  thoroughly  conversant  with  the  customs  of  the  service,  etc.    C.  M.  O.38, 1914,1-2. 

4.  Precedents— Customs  of  service  can  only  be  taken  as  precedents  to  follow,  when  in- 

trinsically proper  in  themselves  and  supplementary  of  the  written  law  and  regula- 
tions, on  points  on  which  the  latter  are  silent. 

A  custom  of  the  service  can  not  be  created  by  isolated  or  occasional  instances,  or  by 
the  practice  of  a  particular  command  or  commander,  but  must  be  a  usage  of  the 
service  at  large  or  of  commanders  in  general.  An  illegal  or  unauthorized  practice, 
however  frequent  or  long  continued,  can  not  abrogate  a  plain  requirement  of  the 
regulations,  and  the  following  of  an  unauthorized  and  pernicious  practice  constitutes 
no  good  defense  for  any  neglect  on  the  part  of  the  accused.  C.  MT  O.  43, 1906,  3. 

5.  Specifications— Of  naval  courts-martial  must  on  their  face  allege  facts  which  constitute 

a  violation  of  some  law,  regulation,  or  custom  of  the  service,  etc.    C.  M.  0. 33, 1914,  6. 

6.  Usages— Customs  and  usages  of  the  service,  whether  originating  in  tradition  or  in 

specific  orders  or  rulings,  are  now,  as  such,  not  numerous  in  the  Army  (or  Navy),  a 
large  proportion,  in  obedience  to  a  natural  law.  having  changed  their  form  by  becom- 
ing merged  in  written  regulations.  (See  1  Winth,  42.)  File  26836-7 :  35,  Feb.  13, 
1913,  p.  4.  See  also  C.  M.  0. 18, 1897,  3. 

CUSTOMS  OF  WAR.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  4. 

DANGER. 

1.  Precautionary  orders — By  commanding  officer.    See  COLLISION,  19. 

"DAY  IN  COURT." 

1.  Department — In  its  action  on  an  officer's  geheral  court-martial  case  stated  that  the 
accused  "has  had  his  'day  in  court'  and  has  failed  to  make  any  defense  which  is  legally 
sufficient  to  the  charge.''  C.  M.  0. 39, 1913, 10.  See  also  EMBEZZLEMENT,  25  (p.  209). 

DE  FACTO.    See  also  WORDS  AND  PHRASES. 

1.  Commander  In  chief.    C.  M.  O.  14, 1910, 17.    See  also  CONVENING  AUTHORITY,  30. 

2.  Enlisted  man — A  minor  enlisted  and  was  convicted  of  "  Desertion."    Department  held 

that  he  was  not  only  a  de  facto,  but  dejure  enlisted  man.  (See  In  re  Morrisey,  137  U.  S. 
157.)  C.  M.  O.  217, 1902,  4.  See  also  FRAUDULENT  ENLISTMENT,  22. 

3.  Officer.    See  PAY,  33. 

4.  Pay.    See  PAY,  33. 


DEATH   GRATUITY.  149 

DE  JURE.    See  also  WORDS  AND  PHRASES. 
1.  Enlisted  man.    See  DE  FACTO,  2. 

DEAD  RECKONING.    Sec  alto  NAVIGATION,  27,  28,  31. 

I.  Navigator  and  commanding  officer — Failing  to  allow  a  prudent  factor  of  safety  for 

errors  in  "dead  reckoning"  and  for  the  effects  of  the  current.  Vessel  stranded  on 
shoal  and  both  officers  tried  by  general  court-martial.  C.  M.  O.  2,  1915:  3, 1915. 

DEATH. 

1.  Boards  of  inquests.   See  BOARDS  OF  INQUESTS. 

2.  Certificates.   See  MEDICAL  RECORDS,  5. 

3.  Civilian  coal  handler— Court  of  inquiry  records,  where  sent.    Ct.  Inq.  Rec.  6196. 

4.  Commissions—  Oilker  died  after  he  was  nominated  for  promotion  but  prior  to  con- 

firmation by  the  Senate.    File  2?GS7-4:4,  J.  A.  G.,  Oct.  30, 1916. 

5.  Gratuity,  death.   See  DEATH  GRATUITY. 

6.  Inquests.   See  BOARDS  OF  INQUESTS;  INQUESTS. 

7.  Members  of  courts-martial — Before  signing  records.    See  MEMBERS  OF  COURTS- 

MARTIAL,  24. 

8.  Officers— Supposed  death  of.    See  DESERTION,  89-91. 

9.  Presumption  of  death — At  common  law  was  7' years.    See  COMMON  LAW,  7. 

10.  Same — Presumption  was  warranted  that  a  naval  officer  was  lost  at  sea.  The  depart- 
ment, therefore,  assumed  and  decided  that,  for  official  purposes  and  as  a  conclusion 
of  fact,  the  officer  died  on  August  16,  1915.  File  25809-205:40,  Sec.  Navy,  Oct.  11. 
1915. 

II.  Sodomy — Common  law  punishment  for  sodomy  was  death.    See  COMMON  LAW,  10 

SODOMY,  15. 

DEATH  GRATUITY. 

1.  Accounting  officers'  Jurisdiction — Accounting  officers  have  no  jurisdiction  to  con- 

sider a  claim  for  payment  of  death  gratuity  until  the  Paymaster  General  has  acted 
upon  and  allowed  same;  and  when  a  claim  is  allowed  by  the  Paymaster  General,  this 
establishes  claimant's  right  and  he  is  entitled  to  demand  payment  without  being 
required  to  establish  his  claim  anew  to  the  satisfaction  of  the  accounting  officers. 
File  26543-66,  Sept.  8, 1911.  Compare  22  Comp.  Dec.,  532,  File  26543-148. 

2.  Acting  assistant  surgeons.    See  ACTING  ASSISTANT  SURGEONS,  3. 

3.  Administrator— Of  beneficiary.    See  DEATH  GRATUITY,  13. 

4.  Appeals — The  beneficiary  of  a  death  gratuity  may  appeal  to  the  Secretary  of  the  Navy 

from  the  action  of  the  Paymaster  General  of  the  Navy  in  refusing  to  pay  the  gratuity. 
File  26543-66,  J.  A.  G.,  Sept.  8, 1911,  p.  16.  See  also  DEATH  GRATUITY,  6,  23. 

5.  Same— To  Congress— The  law  (act  Aug.  22, 1912, 37  Stat.,329:  Navy  Regulations,  1913, 

R-4551  ( 1 )  prevents  the  pavm  ent  of  death  gratuity  to  the  m  other  of  a  deceased  enlistee 
man  unless  she  has  been  ''previously  designated"  by  him.  (See  C.  M.  O.  31, 1915, 


42.1915,9-10. 

6.  Auditor— Authority  of  auditor  to  order  payment  made— The  party  to  whom  payment 

has  not  been  made  by  a  disbursing  officer  may  present  his  demand,  or  claim,  to  such 
disbursing  officer's  superior  who,  if  he  deems  the  claim  to  be  a  just  one,  may  require 
the  subordinate  to  make  the  payment.  But  in  such  a  case  the  paying  officer  is  no 
longer  responsible  financially;  the  order  of  his  superior  has  relieved  him  from  danger 
of  checkage,  and  the  disallowance,  if  any,  would  fall  upon  the  superior.  In  such  a 
case,  it  is  not  the  accounting  officers  who  have  power  to  order  payment.  File  26543-66. 
J.  A.  G.,  Sept.  8, 1911,  p.  6.  Seealso  DEATH  GRATUITY,  23. 

7.  Beneficial  to  its  nature— The  death-gratuity  law  is  beneficial  in  its  nature,  and  should 

be  construed  very  liberally  as  to  evidence  required;  otherwise  the  intention  of  Con- 
gress, which  was  plainly  to  afford  immediate  relief  to  dependent  relatives  upon  the 
death  of  an  officer  or  enlisted  man,  would  be  defeated.  File  26543-87:2,  Sec.  Navy. 
Apr.  23, 1913,  p.  5.  Seealso  File  26254-1936;  DEATH  GRATUITY,  25. 

8.  Beneficiary  slips— Form  approved  by  the  department.    File  2(3543-87:2,  Sec.  Navy. 

Apr.  28,  1913. 

9.  Brother — May  be  designated  as  a  beneficiary,  if  a  "dependent  relative"  as  the  bene- 

ficiary who  is  to  receive  the  gratuity  in  case  the  designer  should  not  be  survived  by  a 
widow  or  child.  File  26543-91,  J.  A.  G.,  Jan.  22, 1913. 


150  DEATH   GRATUITY. 

10.  Check— Cashing  of  by  administrator  of  beneficiary.    See  DEATH  GRATUITY,  13. 

11.  Commandant's  clerks— The  act  of  May  13, 1909  (35  Stat.  128)  does  not  apply  to  com- 

mandant's clerks,  in  connection  with  death  gratuities.    File  54(50-31,  Sec.  Navy. 

12.  Common-law  wife-^As  beneficiary — The  following  rule  is  adopted:  "Where  parties 

live  together  ostensibly  as  man  and  wife,  demeaning  themselves  toward  each  other 
as  such,  and  are  received  into  society  and  treated  by  their  friends  and  relations  as 
having  and  being  entitled  to  that  status,  the  law  wUl,  in  favor  of  morality  and  de- 
cency, presume  that  they  have  been  legally  married."  (Travers  v.  Reinnard,  205 
U.  8.  347.)  File  26254-1936,  J.  A.  G.,  Jan.  29, 1916. 

13.  Death  ol  beneficiary  before  payment  is  made— The  law  (act  of  Aug.  22, 1912,  37 

Stat.  329;  Navy  Regulations.  1913,  R-4551  (1) )  provides  for  the  payment  of  death 
gratuity  in  the  case  of  any  officer  or  enlisted  man  dying  in  the  service  from  causes  not 
the  result  of  his  own  misconduct,  1st,  to  the  widow;  2d,  if  no  widow,  to  the  children; 
and  3d,  if  no  children,  "to  any  other  dependent  relative  of  such  officer  or  enlisted  man 
previously  designated  by  him."  Held,  that  where  deceased  was  not  survived  by  a 
widow  or  child  and  had  "previously  designated"  only  one  "dependent  relative"  (his 
mother) ,  who  died  after  the  death  of  deceased,  but  prior  to  receipt  of  the  death-gratuity 
check,  the  proper  legal  representatives  of  deceased's  mother  may  cash  the  check  made 
to  her  order.  (See  Case  of  George  B.  Phillips,  administrator  of  the  estate  of  Jacob 
Botner,  49  Ct.  Cls.  703,  No.  31887,  overruling  Compt.  Dec.,  Feb.  23, 1912,  in  same  case; 
File  26266-325;  File  26280-49.)  File  26543-140,  Sec.  Navy,  Sept.  13, 1915;  G.  M.  O.  31, 
1915,  5-6.  See  also  File  26543-150,  J.  A.  G.,  Mar.  21, 1916. 

14.  "Dependent  relative"— Definition  of.    See  DEATH  GRATUITY,  26. 

"  When  the  officer  or  man  designates  a  dependent  relative  the  fact  that  he  or  she  is 
designated  as  such  should  be  given  great  weight,  as  none  knows  better  the  depend- 
ency of  the  relative  than  the  person  making  the  designation.  (Comp.  Dec..  Jan.  3, 
1912,  File  26543-87:2.)"  File  26443-87:2,  Sec.  Navy,  April  28, 1913,  p.  f. 

While  the  mere  designation  of  a  dependent  relative  in  the  beneficiary  slip  would 
hardly  be  sufficient  evidence  of  itself  to  authorize  payment  to  such  designated  bene- 
ficiary, the  department  believes  that  when  the  beneficiary  slip  is  subscribed  to  under 
oath  in  due  form  by  the  officer  or  enlisted  man  making  the  designation,  with  a  brief 
statement  of  the  facts  upon  which  the  dependency  is  predicated,  this  may  properly 
be  accepted,  in  the  absence  of  any  indication  to  the  contrary,  as  evidence  of  depend"- 
ency  at  the  time  the  designation  is  made.  When,  in  addition  to  this  evidence,  there 
is  submitted  with  the  claim  for  payment  an  affidavit  made  by  the  designated  bene- 
ficiary, attested  by  witnesses  and  accompanied  by  any  available  evidence  showing 
the  dependency  to  have  continued  until  the  death  of  the  person  making  the  designa- 
tion, this  should  in  general  constitute  sufficient  basis  for  making  payment  to  such 
designated  beneficiary  so  far  as  concerns  the  question  of  dependency.  File  26543-87:2. 
Sec.  Navy,  April  28, 1913,  pp.  1-2. 

15.  Minor— A  minor  who  enlists  in  the  naval  service  is  competent  to  designate  a  bene- 

ficiary, and  the  amount  should  be  paid  in  accordance  with  such  designation.  File 
26543-38.  See  also  File  26543-33,  Sec.  Navy,  June  2, 1909;  26543-33,  Sec.  Navy,  Dec.  15, 
1909. 

16.  Same— Minor  beneficiary.    See  File  26543-33,  Sec.  Navy,  June  22, 1909,  and  Dec.  15, 

1909. 

17.  Misconduct— Effect  upon  granting  of  death  gratuity.    See  DEATH  GRATUITY,  21. 

18.  Misnamed— Payment  of  the  death  gratuity  may  be  paid  to  the  beneficiary,  even 

though  the  beneficiary  was  misnamed  in  the  beneficiary  slip,  provided,  if  from  al|  the 
facts  and  evidence  available,  the  beneficiary  intended  to  be  named  can  be  definitely 
ascertained.  File 26543-48,  J.  A.  G.,  Oct.  10, 1910. 

19.  Mother— Designated  as  beneficiary.    See  DEATH  GRATUITY,  5,  13. 

20.  No  dependent  relative— Where  deceased  left  no  widow  or  child  and  designated  his 

dependent  relative  as  "none,"  the  department  held  that  "payment  can  not  be  made 
even  though  he  be  survived  by  a  dependent  relative."  File  26543,  Sec.  Navy,  Oct.  22, 
1914. 

21.  Paymaster  General  shall  cause  to  be  paid— Immediately  upon  official  notification 

of  the  death,  from  wounds  or  disease  not  the  result  of  his  own  misconduct,  of  any 
officer  or  enlisted  man  on  the  active  list  of  the  Navy  and  Marine  Corps,  the  Paymaster 
General  of  the  Navy  shall  cause  to  be  paid  to  the  widow,  and,  if  no  widow,  to  the 
children,  and,  if  there  be  no  children,  to  any  other  dependent  relative  of  such  officer 
or  enlisted  man  previously  designated  by  him,  an  amount  equal  to  six  months'  pay 
at  the  rate  received  by  such  officer  orenlisted  man  at  the  date  of  his  death,  less  seventy- 
five  dollars  in  the  case  of  an  officer  and  thirty-five  dollars  in  the  case-of  an  enlisted 


DEATH   GRATUITY.  151 

man,  to  defray  expenses  of  interment,  and  the  residue ,  if  any,  of  the  amount  reserved 
shall  be  paid  subsequently  to  the  designated  person.  (Act  of  Aug.  22,  1912.  37  Stat. 
329.)  (R-4551.)  See  DEATH  GRATUITY.  22, 23. 

22.  Paymaster  General's  decision  conclusive — In  death  gratuity  cases,  when  the  right 
of  a  beneficiary  has  been  established  to  the  satisfaction  of  the  Paymaster  General  of  the 


or  any  reason  revoked  by  the  Paymaster  General  of  the 
Navy  before  payment  can  be  accomplished.  File  26543-148:  5,  Sec.  Navy,  May  29 
1916;  C.  M.  0. 16, 1916.  See  also  File  26543-66,  J.  A.  G.,  Sept.  8, 1911;  26543-87:  3,  Sec 
Navy,  May  8, 1913;  26543-104,  See.  Navy,  Aug.  ?2,  1913. 

23.  Same— Where  Congress  by  act  of  May  13, 1908  (35  Stat.  128),  provided  that,  upon  the 

existence  of  certain  facts,  the  Paymaster  General  of  the  Navy  shall  cause  to  be  paid  a 
gratuity  to  the  beneficiary  of  a  deceased  officer  or  enlisted  man  of  the  Navy  or  Marine 
Corps,  and  that  the  Secretary  of  the  Navy  shall  establish  regulations  requiring  each 
officer  and  enlisted  man  to  designate  the  proper  person  to  whom  the  amount  should 
be  paid.  Held,  The  decision  of  the  Paymaster  General,  that  the  facts  necessary  to 
authorize  payment  did  not  exist  in  a  given  case,  was  necessarily  conclusive  of  the 
question ,  except  for  the  right  of  the  claimant  to  appeal  from  the  action  of  the  Paymas- 
ter General  to  the  Secretary  of  the  Navy;  and  that  the  Auditor  for  the  Navy  Depart- 
ment did  not  have  jurisdiction  to  review  the  decision  of  the  Paymaster  General.  File 
26543-66,  Sept.  8, 9, 1911.  Compare  22  Comp.  Dec.  532;  File  26543-148.  See  also  DEATH 
GRATUITY,  6. 

24.  Presumption  of  death— Where  a  submarine,  known  to  contain  certain  persons  in  the 

naval  service,  sinks  and  remains  submerged  about  2  J  months,  the  department  decided 
that  said  persons  were  dead,  and  that  the  necessary  steps  could  be  taken  without  fur- 
ther delay  to  pay  the  death  gratuity  authorized  by  law  to  their  beneficiaries;  that  it 
was  not  deemed  advisable  to  fix  the  definite  date  on  which  such  persons  may  be 
regarded  as  officially  dead,  pending  additional  evidence  which  might  be  available 
when  the  submarine  is  brought  to  the  surface.  File  26453-137,  Sec.  Navy,  June  17, 
1915;  C.  M.  O.  22, 1915,  7. 

25.  Purpose  of  the  death  gratuity  law— In  connection  with  the  purpose  of  this  law,  see 

27  Op.  Atty.  Gen.,  346,  354,  with  reference  to  the  Government  personal  injury  act: 
"  The  purpose  of  the  law  was  not  to  set  in  motion  an  interminable  series  of  technical 
inquiries  such  as  would  puzzle  the  minds  of  learned  and  profound  judges,  but  to  pro- 
vide immediate  pecuniary  relief  *  *  *  taking  the  language  of  that  section  in  its 
obvious  sense  and  as  intended  to  be  addressed  to  administrative  officers,"  etc.  27  Op. 
Atty.  Gen.,  346,  354,  quoted  in  File  26254-1936,  J.  A.  G.,  Jan.  29,  1916,  p.  6.  See  also 
DEATH  GRATUITY,  7. 

"Should  the  Paymaster  General  be  required  in  every  case  to  make  a  thorough 
investigation  for  the  purpose  of  determining  whether  the  marriage  of  claimants  for 
death  gratuity  complied  with  all  legal  requirements  in  the  jurisdicti9n  in  which  such 
marriages  were  contracted,  it  is  possible  that  some  legal  defect  might  occasionally 
be  discovered  and  payment  accordingly  resisted.  On  the  other  hand,  it  is  certain 
that  such  a  system  would  defeat  the  principal  purpose  of  the  law  in  a  very  large  pro- 
portion of  cases  by  requiring  innocent  claimants  to  wait  for  unwarrantedly  long  peri- 
ods to  receive  the  money  which  Congress  intended  for  their  immediate  relief.  Indeed 
the  length  of  time  required  to  investigate  such  claim  in  this  way  would  be  so  great 
that  the  accumulated  claims  and  the  complicated  questions  which  they  involved 
might  soon  prove  too  numerous  to  handle  at  all  with  the  present  equipment,  and  the 
law  would  thus  in  effect  be  nullified."  File  26254-1936,  J.  A.  G.,  Jan.  29, 1916,  p.  7. 

"Congress  could  not  have  contemplated  any  exhaustive  investigatigation  by  the 
Navy  Department  of  these  questions,  and  it  did  not  provide  the  means  necessary  to 
undertake  such  a  burden."  File  26254-1936,  p.  6. 

There  are  "other  classes  of  cases  in  which  the  Secretary  of  the  Navy  is  forced  to 
decide  questions  for  administrative  purposes  without  delving  into  all  the  compli- 
cated questions  of  law  and  fact  which  a  court  equipped  with  the  necessary  machinery 
would  have  to  consider  and  investigate  before  making  a  judicial  decision  which  would 
be  controlling  for  all  purposes."  (Sec  28  Op.  Atty.  Gen.  80;  29  Op.  Atty.  Gen.  14.) 
File  26254-1936,  J.  A.  G.,  Jan.  29, 1916,  p.  6. 

With  reference  to  the  act  of  May  13,  1908,  it  was  stated:  "This  legislation  would 
appear  to  have  been  intended  to  confer  a  gratuity  upon  the  members  of  the  immediate 
family  of  the  officer  or  enlisted  man,  or  upon  so'me  other  person  who  had  been  bene- 
fited by  his  salary,  which  was  suddenly  cut  off  by  his  death.  *  *  *  The  benefits 


152  DEATH   GRATUITY. 

conferred  by  this  clause  are  not  included  in  the  term  'pay  and  allowances,'  but  the 
payment  provided  for  is  simply  a  gratuity— more  in  the  nature  of  a  pension— payable 
directly  to  the  person  designated  and  in  which  the  officer  or  enlisted  man  himself  has 
no  property  rights."  File  26254-78,  J.  A.  G.,  July  24, 1908,  p.  3. 

"The  expressed  intent  of  the  law  being  that  payment  should  be  made  immedi- 
ately to  the  person  who  has  been  regularly  designated  by  the  man  himself  under 
oath  *  *  *  and  whose  source  of  income  has  suddenly  been  stopped  by  the 
death  of  such  man  while  in  the  naval  service  from  causes  not  the  result  of  miscon- 
duct." File  26254-1936,  Sec.  Navy,  Jan.  29,  1916. 

26.  "  Relative"— Meaning  of— In  my  opinion  the  word  "relative"  as  used  in  the  actof 
,    August  22. 1912  (37  Stat.  329),  concerning  the  payment  of  gratuity  in  certain  cases, 

upon  the  death  of  an  officer  or  enlisted  man  in  the  naval  service,  is  to  be  interpreted 
as  meaning  relative  by  consanguinity  only  and  not  relative  by  affinity.  Such  is  prac- 
tically the  unanimous  decisions  of  the  courts  in  denning  the  word  "relative"  as  used 
in  statutes  and  wills.  File  26543-86,  J.  A.  G.,  Oct.  19, 1912.  See  also  State  v.  Tucker, 
26Ann.Cas.  100,  93  N.E.  3,174  Ind.  715;  Compt.Dec.  Apr.10, 1913;  File 26543-92:  1; 
26543-87:5,  Sec.  Navy,  Sept.  2,  1913;  26543-87:4,  J.  A.  G.,  Aug.  22,  1913.  See  also 
DEATH  GRATUITY,  14. 

27.  Retired  officers.    See  RETIREMENT  OF  OFFICERS,  20. 

28.  Seal— If  the  officer  before  whom  the  beneficiary  slip  is  subscribed  and  sworn  to  has  no 

official  seal,  he  is  not  required  to  affix  a  seal  to  the  beneficiary  slip.  File  26543-87:  4, 
J.  A.  G.,  Aug.  22, 1913. 

29.  Truth  of  statements  In  beneficiary  sllD— In  general  the  oath  of  an  officer  or  enlisted 

man  in  support  of  the  statements  made  in  the  beneficiary  slip  should  be  accepted,  in 
the  absence  of  any  indication  of  the  contrary,  as  sufficient  evidence  that  the  facts  as 
stated  in  the  beneficiary  slip  were  true  at  the  time  the  beneficiary  slip  was  signed.  It 
would  be  altogether  impracticable  for  the  department  to  investigate  in  every  case 
whether,  for  example,  the  person  making  the  designation  was  legally  married  or 
whether  the  children  are  legitimate.  These  questions  would  involve,  in  the  first 
place,  the  ascertainment  of  the  status  of  the  marriage  contract,  which  in  general 
furnishes  the  "proper  law"  to  determine  the  capacity  of  the  parties  to  marry,  the 
formalities  of  a  valid  marriage,  etc.  In  the  next  place  it  would  oe  necessary  to  ascer- 
tain what  were  the  laws  and  decisions  in  the  jurisdictions  which  govern  the  various 
questions  involved  in  the  different  cases.  If  oneparty  had  been  previously  divorced, 
further  complications  might  arise  as  to  the  validity  of  the  divorce  and  its  effect  upon 
the  capacity  of  the  party  to  remarry.  There  is  no  uniformity  in  the  laws  of  the  differ- 
ent States  as  to  these  questions,  which  are  often  in  themselves  very  complicated,  have 
formed  the  subject  of  numerous  legal  treatises,  and  upon  which  the  courts  of  the 
United  States  and  of  the  different  States  are  not  always  in  accord.  In  some  jurisdic- 
tions common-law  marriages  are  recognized,  while  in  others  certain  formalities  are 
essentially  prerequisite  to  the  existenceof  the  marriage  status.  So,  also,  in  some  juris- 
dictions the  law  would  recognize  children  as  legitimate  under  circumstances  which 
would  make  such  children  illegitimate  if  the  laws  of  other  j  urisdictions  were  to  govern. 
Congress  could  not  have  contemplated  any  exhaustive  investigation  of  these  <j  uestions 
and  it  did  not  provide  the  means  necessary  to  undertake  such  a  burden.  File  26543- 
87:2,  Sec.  Navy,  April  28, 1913,  pp.  2-3. 

30.  Widow  or  children— The  law  specifically  provides  for  making  payment  to  the  widow 

or  children  of  deceased  officers  and  enlisted  men.  In  such  cases  payment  is  made 
without  reference  of  dependency,  and  whether  the  widow  or  children  had  been  previ- 
ously designated  in  a  beneficiary  slip  or  not.  However,  with  reference  to  other  rela- 
tives, designation  must  be  specifically  made  by  the  officer  or  enlisted  man  and  evidence 
must  be  furnished  of  dependency  of  such  relatives  at  the  time  of  death  of  the  person 
making  the  designation.  File  26543-87:5,  Sec.  Navy,  Sept.  2, 1913. 

DEBATING   SCHOOL. 

1.  Military  command— Not  to  be  turned  into  a  debating  school  upon  the  receipt  of  orders. 
See  ORDERS,  39. 

DEBAUCHES.    C.  M.  0. 146, 1896,  2;  132, 1897, 1.    See  also  DRUNKENNESS,  16, 19,  76. 

DEBTS. 

1.  Collecting  agency — "The  department  must  not  be  converted  into  a  collecting  agency, 
but  it  will  not  fail  to  take  note  of  such  disgraceful  practices  and  to  bring  those  who 
commit  them  to  speedy  and  condign  punishment."  C.  M.  O.  36, 1881,  3.  See  also 
DEBTS,  16;  PAT,  71. 


DEBTS.  '  153 

"The  department  does  not  intend  to  act  as  an  agency  for  the  collection  of  debts, 
but  it  does  intend  to  enforce  the  observance  of  the  provisions  of  the  Navy  Regulations 
and  to  see,  particularly,  that  each  and  every  officer  conducts  his  affairs,  both  public 
and  private,  in  a  manner  becoming  an  officer  and  a  gentleman."  File  26251-12117 
(G.  C.  M.  Rec.  32614),  p.  4,  of  charges  and  specifications. 

"  Executive  departments  are  not  permitted  to  lend  their  aid  to  the  collection  of  pri- 
vate claims  against  persons  in  their  service.  In  the  Navy,  however,  where  a  mem  oer 
of  the  personnel  by  failing  to  pay  debts  or  fai'.ing  to  comply  with  a  court's  order  to 
'pay  to  his  wife  and  minor  child  certain  moneys  as  alimony,'  which  conduct  brings 
scandal  and  disgrace  upon  the  naval  service,  he  may  under  certain  circumstances  be 
subjected  to  appropriate  disciplinary  proceedings  upon  evidence  sufficiently  estab- 
lishing the  facts."  File  26524-275 :  5,  J.  A.  G.,  Aug.  8, 1916. 

2.  Conduct  unbecoming  an  officer  and  a  gentleman— Failure  to  pay  debts  charge- 

able under.    See  DEBTS,  12. 

3.  Same— Failure  to  discharge  debts  constitutes  the  offense  of  "conduct  unbecoming  an 

officer  and  a  gentleman. "  (Fletcher  v.  U.  S.,  26  Ct.  Cls.  541, 542.) 

4.  Dismissal — Commissioned  warrant  officer  tried  by  general  court-martial  and  dismissed 

for  failure  to  pay  debts  after  officially  promising  to  pay  same.    C.  M.  O.  2, 1916. 

5.  Same— Commissioned  officer  tried   by  general  court-martial  and   dismissed.    See 

DEBTS,  21. 

6.  Enlisted  man— Officer  in  debt  to.    C.  M.  O.  48, 1910. 

7.  Same — It  is  not  regarded  as  good  economy  to  retain  an  enlisted  man  in  the  naval  service 

who  has  been  sentenced  to  bad-conduct  discharge  and  who  is  in  debt,  merely  in  order 
that  he  may  be  able  to  earn  sufficient  money  to  cancel  his  indebtedness.  File  9770-01 , 
J.  A.  G.  See  also  File  1245-01;  3015-04;  9770-01;  26251-4260 :  3;  26251-4260 :  3. 

8.  Same— Whether  indebtedness  is  an  offense  or  not.    See  File  16670-14,  J.  A.  G., 

April  20, 1912. 

9.  Failure  to  satisfy — The  failure  to  satisfy  debts  has  been  repeatedly  held  by  the  depart- 

ment to  be  "scandalous  conduct."  C.  M.  O.  12, 1899,  4;  13,  1899,  2;  78,  1905.  See 
also  DEBTS,  24. 

10.  Same — An  indifference  on  the  part  of  an  officer  to  his  pecuniary  obligations  of  so 

marked  and  inexcusable  a  character  as  to  induce  repeated  just  complaints  to  his  com- 
manding officer  or  the  Secretary  of  the  Navy  by  his  creditors,  and  to  bring  discredit 
and  scandal  upon  the  military  service,  held  to  constitute  an  offense.  C.  M.  0. 16, 1916, 
1-2. 

11.  Habit  of  neglecting  to  pay  debts — Meets  with  the  strong  disapproval  of  the  depart- 

ment and  can  not  be  permitted  to  become  general.  "The  present  instance  shows  a 
carelessness  and  lack  of  foresight  hi  financial  matters  that  are  unworthy  of  an  officer, 
and  the  reasons  given  for  the  nonpayment  of  these  debts  only  serve  to  accentuate 
these  faults  on  thepart  of  the  accused.''  C.  M.  0. 98, 1905, 1. 

12.  Nonpayment  of — Charged  under  "conduct  unbecoming  an  officer  and  a  gentleman." 

C.  M.  O.  23,  1881;  5,  1909;  16, 1909;  15, 1915;  2,  1916;  12, 1916;  File  26251-12117,  Sept. 
1916. 

13.  Officers— Debt  claims  against  officers  must  be  handled  by  Bureau  of  Navigation  and 

Major  General  Commandant  of  Marine  Corps.    See  File  7731-03;  10034-04. 

14.  Same — Failing  to  discharge  his  indebtedness  to  an  enlisted  man.    C.  M.  O.  48, 1910. 

15.  Same — Officers  serving  afloat  shall  before  leaving  port  pay,  or  provide  for  paying  any 

debts  they  may  have  incurred.  No  officer  shall  at  any  time  or  place  contract  debts 
without  a  reasonable  expectation  of  being  able  to  discharge  them. 

It  is  enjoined  upon  all  officers  that  failure  to  discharge  their  just  indebtedness  brings 
discredit  not  only  upon  themselves  but  upon  the  naval  service.  (R-1508.)  File  26260- 
1392,  J.  A.  G.,  June  29.  1911,  p.  11. 

16.  Same— "There  are,  undoubtedly,  instances  where  officers  find  themselves  hampered 

by  pecuniary  embarrassments  from  which  they  can  not,  without  difficulty,  at  once 
extricate  themselves.  In  such  cases  it  becomes  proper  that  they  should  practice  a 
rigid  economy,  and  so  gradually  pay  their  debts. 

"But  when  an  officer  has  taken  advantage  of  the  circumstances  that  he  belongs  to 
the  naval  service  of  the  Nation  to  establish  a  credit  among  tradesmen  and  merchants, 
he  owes  it  to  that  service,  as  well  as  to  his  own  reputation  and  to  common  honesty, 
that  he  should  see  his  way  clear  to  meet  within  a  reasonable  time,  the  obligation  he 
incurs.  If  in  a  spirit  of  recklessness,  he  makes  use  of  his  position  to  live  beyond  his 
means,  and  runs  in  debt  in  face  of  a  certainty  or  the  strong  probability  that  he  will  be 
unable  to  meet  his  engagements;  if  he  takes  advantage  of  the  immunity  with  which 
the  law  protects  his  pay  from  seizure  in  order  to  defeat  his  honest  creditors,  such 


154 .  DEBTS. 

conduct  is  dishonorable  and  dishonest,  unbecoming  an  officer  and  a  gentleman,  and 
calculated  to  bring  scandal  and  disgrace  upon  the  service. 

"Whilst  it  is  in  the  near  borderland  of  the  crime  of  common  swindling  at  law,  it  is 
undoubtedly  amenable  to  punishment  under  the  rules  and  practices  governing  the 
Navy. 

"The  department  must  not  be  converted  into  a  collecting  agency,  but  it  will  not  fail 
to  take  note  of  such  disgraceful  practices  and  to  bring  those  who  commit  them  to 
speedy  and  condign  punishment.1'  C.  M.  O.  36, 1881,  3. 

"  While  officers  or  the  Navy  and  Marine  Corps  who  do  not  pay  their  debts  are  the 
exception  rather  than  the  rule,  the  delinquency  of  a  few  officers  may  tend  to  bring  the 
service  into  disrepute,  as  it  is  the  disposition  of  tradesmen  to  give  credit  to  officers  upon 
the  strength  of  their  official  positions  merely,  and  although  when  brought  to  book  the 
delinquents  may  pay  their  debts  this  does  not  wipe  out  the  stigma  their  conduct  has 
placed  on  the  service."  File  9836-03,  J.  A.  G.,  Nov.  23, 1903,  p.  7. 

17.  Orders  to  pay— An  officer  can  not  be  ordered  to  pay  his  debts,  but  he  can  be  tried  for 

faik  re  to  pay  them. 

The  department  in  practice  unhesitatingly  orders  the  trial  of  an  officer  for  "conduct 
unbecoming  an  officer  and  a  gentleman,"  growing  out  of  nonpayment  of  debts,  the 
validity  of  which  is  conceded  by  him  or  established  by  the  judgment  of  a  civil  court, 
where  the  attending  circumstances  are  such  as  to  constitute  the  military  offense  named. 
File  26251-9522 :  22. 

18.  Same — An  order  issued  by  the  Secretary  of  the  Navy  directing  an  officer  (or  enlisted 

man)  to  pay  a  private  debt  would  not  be  a  "lawful"  order  tor  the  disobedience  of 
which  he  could  be  punished  under  the  Articles  for  the  Government  of  the  Navy.  The 
department,  therefore,  has  no  legal  right  to  compel  officers  of  the  naval  service  to  pay 
pnvate  debts. 

Should  the  debt  be  claimed  as  a  result  of  services  of  an  attorney  in  procuring  legisla- 
tion such  would  be  void  as  against  public  policy  which  makes  all  contracts  based  upon 
"lobbying,"  void  ab  initio.  File  17789-12:1,  J.  A.  G.,  Feb.  25,  1910,  overruling. 
File  26287-733. 

The  nonpayment  of  a  debt  or  debts  in  general  is  not  of  itself  an  offense  and  can  not 
sub'ect  the  debtor  to  punishment  either  in  civil  or  military  life.  Such  disregard  or 
neglect  of  one's  moral  obligations  does,  however,  gradually  become  an  offense  under 
military  law,  as  the  continual  and  persistent  refusal  to  pay  a  certain  undisputed  claim. 
or  the  repeated  refusal  to  pay  numerous  undisputed  claims,  becomes  notorious  and 
thereby  brings  discredit  upon  the  delinquent  debtor  within  the  service  or  tends  to 
subject  the  naval  service  to  reproach  from  those  without.  Held:  That  an  order  by  a 
commanding  officer  to  an  enlisted  man  under  his  command  to  settle  a  just  debt  is 
not  a  lawful  order,  even  when  given  at  the  time  the  claim  was  undisputed,  and  there- 
fore the  proceedings  of  the  summary  court-martial  were  disapproved.  File  26287-733. 
Sec.  Navy,  Feb.  28, 1911. 

An  order  issued  by  the  Secretary  of  the  Navy  directing  an  officer  to  pay  a  private 
debt  would  not  be  a  "lawful"  order,  for  the  disobedience  of  which  he  could  be  pun- 
ished under  the  Articles  for  the  Government  of  the  Navy.  Moreover,  if  such  an  order 
could  be  enforced  it  would  constitute  a  taking  of  property  without  due  process  of  law, 
as  every  person  who  questions  the  validity  of  a  claim  against  him  is  entitled  to  have 
the  matter  judicially  determined,  with  a  full  opportunity  to  urge  any  defense  he  might 
be  able  to  make.  File  177S9-12: 1,  J.  A.  G.,  Feb.  25, 1910,  quoted  approvingly  by  the 
Secretary  of  the  Navy  in  File  26237-733,  Sec.  Navy,  Feb.  28,  1911 .  ' 

The  Government  can  not  properly  act  as  collector  of  private  indebtedness  due  from 
officers  or  enlisted  men  of  the  naval  service.  In  such  cases  resort  should  be  had  to 
civil  courts.  Where,  however,  the  question  becomes  one  of  conduct  unbecoming  an 
officer  and  a  gentleman  on  t  he  part  of  an  officer  or  of  conduct  to  the  prejudice  of  good 
order  and  discipline  on  the  part  of  either  an  officer  or  an  enlisted  man,  action  may 
be  taken  by  the  Navv  Department  on  these  questions  only.  File  262S7-733,  Sec. 
Navy,  Feb.  28, 1911.  But  see  File  26251-12117;  26251-12462,  Oct.,  1916;  G.  C.  M.  Rec. 
32614. 

19.  Payment  of — Can  not  be  enforced  by  the  department.    See  CLAIMS,  5;  DEBTS,  17, 18. 

20.  Payment  before  trial— As  grounds  for  clemency.    See  DEBTS,  23. 

21.  Pledge  to  pay  debts— An  officer  failing  to  keep  a  pledge  made  to  the  department  to 

pay  a  certain  amount  each  month  to  his  creditors,  was  tried  by  general  court- 
martial  under  the  charge  of  "Scandalous  conduct  tending  to  the  destruction  of  good 
morals,  in  violation  of  the  first  clause  of  the  eighth  article  of  the  Articles  for  the  Gov 
ernment  of  the  Navy,"  and  dismissed.  C.  M.  O.  55, 1894. 


1907;  48,  1910.    See  also  DEBTS,  9. 

The  court  not  only  acquitted  the  accused  upon  both  cha 
but  did  "most  fully  and  honorably  acquit"  him,  this  bei 


DEBTS.  155 

22.  Promises  to  pay—  Failure  to  carry  out  specific  promises,  regarding  settlement  of 

debts,  made  In  official  communications,  may  be  charged  under  "Scandalous  conduct 
tending  to  the  destruction  of  good  morals."  C.  M.  O.  98,  1905;  5.  1909. 

Failure  to  carry  out  specific  promises  regarding  settlement  of  debts  made  to  the 
Major  General  Commandant  of  the  Marine  Corps  in  official  communications  may 
be  charged  under  "Scandalous  conduct  tending  to  the  destruction  of  good  morals." 
C.  M.  O.  98,  1905.  See  also  C.  M.  O.  5,  1909. 

Chief  gunner  dismissed  by  general  court-martial  for  failure  to  pay  just  debts  after 
repeated  promises  to  dp  so.  C.  M.  O.  2,  1916. 

23.  Restitution  —  Officer  tried  for  failure  to  pay  debts  made  a  part  payment  without 

solicitation  and  before  he  was  aware  that  ne  was  to  be  brought  to  trial  before  a  court- 
martial.  This  fact  was  stated  in  a  recommendation  by  the  members  to  the  clemency 
of  the  revising  power  and  the  department  exercised  clemency.  C.  M.  O.  23,  1909. 

24.  Scandalous  conduct  tending  to  the  destruction  of  good  morals—  Neglect  and 

failure  to  pay  long  overdue  debts  to  merchant  by  officer,  charged  under.    C.  M.  O.  48, 

upon  both  charges  preferred  against  him, 
him,  this  being  the  very  highest  degree 

of  the  six  different  forms  9f  acquittal  known  to  naval  procedure.  By  such  action  the 
court  in  effect  put  the  highest  stamp  of  approval  not  only  upon  the  action  of  any 
person  in  the  commissary  department  of  the  Navy  who  may  borrow  money  without 
security  from  a  Government  contractor  furnishing  supplies  to  the  Navy,  but  also  upon 
the  nonpayment  of  debts.  C.  M.  O.  27,  1913,  9. 

25.  Same  —  Violations  of  pledges  or  promises  charged  under.    See  DEBTS,  22. 

26.  Sentence  —  That  part  of  a  sentence  providing  that  the  sum  of  $10  snould  be  checked 

monthly  against  the  accounts  of  the  accused,  to  be  paid  to  his  creditor,  until  such 
payment  shall  liquidate  the  debt,  was  disapproved  as  it  was  not  authorized  by  law. 

27.  Specification  for  failure  to  pay  —  An  enlisted  man  was  tried  by  general  court-martial 

for  nonpayment  of  debts  under  the  charge  of  "Conduct  to  the  prejudice  of  good  order 
and  discipline."  The  question  arose  as  to  whether  the  specification  alleged  any 
offense  when  it  did  not  expressly  charge  the  accused  "with  refusal  to  pay  the  debts,  nor 
is  it  even  alleged  that  the  debts  are  even  due  for  payment."  It  is  desirable  that 
specifications  alleging  nonpayment  of  debts,  after  the  necessary  preliminary  allega- 
tions, contain  an  averment  somewhat  in  the  following  form,  "and  said  debt  being 
thereafter  due  and  owing."  File  26262-1626.  J.  A.  G.,  Dec.  28,  1912. 

28.  Sword  as  payment  of  a  debt—  Officer  tried  by  general  court-martial  for  leaving  his 

sword  in  payment  of  a  debt.    C.  M.  0.  1,  1908. 

DECEASED  PERSONS. 

1.  Disposition  of  effects.    See  DISPOSITION  OF  EFFECTS. 

DECEIT. 

1.  Clemency  —  Among  other  grounds  assigned  for  granting  clemency  was  the  fact  that  the 

accused  possibly  did  not  intend  criminally  to  deceive,  when  he  was  charged  with 
"falsehood."  C.  M.  O.  23,  1909. 

2.  Specifications—  In  cases  of  officers  which  allege  deceit.    C.  M.  O.  9,  1909;  10,  1909. 

DECISIONS. 

1.  Department  —  Decisions  and  instructions  of  department  in  easily  accessible  form  in 

Court-Martial  Orders  and  ignorance  of  or  inattention  to  them  are  inexcusable. 
C.  M.  O.  42,  1915,  7,  8. 

2.  Heads  of  departments  —  Binding  on  their  successors.    See  RES  JTTDICATA. 

3.  Secretary  of  the  Navy—  Decisions  of  Secretary  of  the  Navy  distinguished  from  opinions 

of  the  Judge  Advocate  General.    See  JUDGE  ADVOCATE  GENERAL,  30. 

DECK  COURTS. 

1.  Appeals—  Accused  may  appeal.    See  APPEALS,  6,  7.    See  also  Flie  27217-1752,  Sec. 

Navy,  Sept.  23,  1915,  for  an  actual  appeal  denied  by  the  Secretary  of  the  Navy. 

2.  Same  —  Except  in  cases  of  appeal,  separate  sheets  containing  the  testimony  of  witnesses 

called  in  a  deck  court  should  not  be  forwarded  to  the  department  as  a  part  of  such 
records  as  the  testimony  thus  recorded  is  intended  only  for  the  guidance  of  the  con- 
vening authority  in  his  approval  or  disapproval  of  the  finding  and  sentence.  (Navy 
Regulations,  1913,  R-516;  Forms  of  Procedure,  1910,  p.  181;  C.  M.  O.  33,  1909,  p.  2; 
Act  of  Feb.  16,  1909,  sec.  6  (35  Stat.  621).)  C.  M.  O.  29,  1914,  3. 


156  DECK   COURTS. 

3.  Bad-conduct  discharge— Not  to  be  adjudged.    See  BAD-CONDUCT  DISCHARGE,  2: 

DECK  COURT,  20. 

4.  Boatswain — Actually  in  command  of  a  naval  vessel  may  convene  a  deck  court.    File 

27217-919.  See  also  File  26289-2584;  C.  M.  0. 6, 1915,  5-6;  SUMMARY  COURTS-MARTIAL, 
105. 

5.  Same— May  not  act  as  deck  court  officer.    See  DECK  COURTS,  62. 

6.  Bread  and  water —  Medical    officer's    certificate.     See  CONFINEMENT,   5;   DECK 

COURTS,  8. 

7.  Commanding  officer— As  deck  court  officer.     C.  M.  O.  24,  1909,  3;  34, 1913,  4;  File 

27217-1314.    See  also  DECK  COURT,  10, 14. 

8.  Confinement— Over  20  days  not  to  be  adjudged.    C.  M.  O.  24,  1909,  3;  1,  1914,  5. 

See  also  CONFINEMENT,  10. 

In  cases  involving  confinement  on  diminished  rations  or  on  bread  and  water,  ex- 
ceeding a  period  of  10  days,  the  deck  court  record  should  bear  certificate  of  the 
senior  medical  officer  that  the  sentence  will  not  be  seriously  injurious  to  the  health 
of  the  accused.  See  CONFINEMENT,  5. 

Confinement  and  reduction  in  rating  may  not  both  be  included  in  same  sen- 
tence. C.  M.  O.  33, 1914,  5. 

9.  Consent  to  trial— Accused  must  consent.    File  27217-1927;  27217-1928.    See  also  DECK 

COURTS,  50;  SUMMARY  COURTS-MARTIAL,  26. 

10.  Constitution  of— By  act  of  February  16, 1909,  section  2  (35  Stat.  621),  the  President 

is  expressly  authorized  to  prescribe  rules  and  regulations  as  to  details  of  the  "  consti- 
tution, powers,  and  procedure"  of  deck  courts.  In  carrying  out  this  power,  Navy 
Regulations,  1913.  R-503  and  R-504,  prescribe  that— 

"503.  Officers  shall  not  be  ordered  as  deck  courts  who  are  below  the  rank  of  lieuten- 
ant in  the  Navy  or  captain  in  the  Marine  Corps,  except  hi  cases  where  there  is  no  officer 
of  such  rank,  or  of  higher  rank,  attached  to  the  vessel,  navy  yard,  or  station,  or  com- 
mand, as  the  case  may  be. 

"504.  An  officer  empowered  to  order  deck  courts  shall  not  designate  himself  for  this 
dutv  unless  he  is  the  only  commissioned  officer  attached  to  the  vessel,  navy  yard,  or 
station,  or  command,  or  unless  the  subordinate  officers  are  below  the  specified  rank, 
in  which  cases  he  shall  constitute  the  deck  court  and  finally  determine  the  cases  tried 
by  him,  and  no  order  appointing  the  court  need  be  issued,  but  the  officer  in  question 
shall  enter  on  the  record  that  he  is  '  the  only  officer  (of  the  required  rank)  attached  to 
the  vessel  (navy  yard)  (naval  station)  (present  with  the  command).'  In  these  cases 
no  approval  of  the  sentence  is  necessary,  but  he  shall  sign  the  record  and  date  his 
signature  in  the  manner  shown  by  the  authorized  forms  of  procedure."  C.  M.  0. 34, 
1913,  4.  See  also  C.  M.  O.  7, 1914,  11. 

11.  Same— Inspectors-Instructors  of  Naval  Militia  as  deck  court  officers.    File  3973-102:2, 

J.  A.  G.,  Aug.  21, 1915. 

12.  Same — A  deck  court  shall  consist  of  one  commissioned  officer  only,  who,  while  sen-ing 

in  such  capacity,  shall  have  power  to  administer  oaths,  to  hear  and  determine  cases, 
and  to  impose," in  whole  or  m  part,  the  punishment  prescribed  by  article  30  of  the 
Articles  for  the  Government  of  the  Navy.  C.  M.  0. 14, 1911, 5-6, 8, 9.  SeealsoC.  M.  O. 
7, 1914, 11. 

13.  Convening  authority— Must  sign  the  record  constituting  the  court.    C.  M.  O.  34, 

1913, 5. 

14.  Same— Who  may  convene.    C.  M.  O.  24, 1909, 3;  34,  1913,  4;  file  27217-1314;  27217-919. 

See  also  DECK  COURTS,  10;  SUMMARY  COURTS-MARTIAL.  22. 

15.  Convening  order— The  order  constituting  the  court  shall  be  in  writing.    (R-502.) 

16.  Court-martial  order— Deck  courtvofficer  mentioned  by  name  in  a  court-martial  order. 

C.  M.  O.  34, 1913,  4. 

17.  Date  of  trial— The  date  of  trial  must  appear  on  the  record.    C.  M.  O.  34, 1913, 5. 

18.  Designation  of— The  proper  designation  of  a  deck  court  is  "deck  court"  andnof'deck 

court-martial."    (Act  of  Feb.  16, 1909,  sec.  2,  35  Stat.  621.)    C.  M.  O.  29,  1914,  3. 

19.  Disapproval  of —The  department  disapproved  the  proceedings  and  sentence  of  a  deck 

court  because  an  ensign  acted  as  deck  court  officer  contrary  to  law  as  outlined  in  the 
act  of  February  16, 1909,  sec.  2  (35  Stat.  621),  and  Navy  Regulations,  1913,  R-503  and 
R-504,  the  disregard  of  which  was  a  fatal  defect  and  invalidated  the  entire  proceedings. 
C.  M.  O.  34,  1913.  4. 

20.  Discharge  not  to  be  adjudged— The  act  of  Congress  entitled  "  An  act  to  promote  the 

administration  of  justice  in  the  Navy,"  approved  by  the  President  February  10, 1909 
(35  Stat.  621),  as  set  forth  in  the  department's  General  Order  No.  12,  of  February  17 
1909,  and  in  Article  R-502,  Navy  Regulations,  provides  that  in  no  case  shall  a  deck 


DECK  COURTS.  157 

court  adjudge  discharge  from  the  service,  nor  shall  it  adjudge  confinement  or  forfeiture 
of  pay  for  a  longer  period  than  20  days.  C.  M.  O.  24, 1909,  3;  1, 1914,  5. 

21.  Enlistment  record— Entries  of  conviction  by  deck  courts  in  enlistment  records  must 

be  authenticated  by  the  signature  of  the  commanding  officer.    File  27217-12. 

22.  Evidence— Record  of  testimony  will  be  forwarded  to  department  only  in  cases  of 

appeal.    C.  M.  O.  33, 1909,  2.    See  also  DECK  COURTS,  2. 

23.  Extra  police  duties— Except  when  the  offender  is  serving  on  a  receiving  ship  or  at  a 

shore  station ,  sentences  involving  extra  police  duties  are  undesirable, demanding  from 
others  increased  watchfulness  and  supervision.  (Navy  Regulations,  1913,  R-619  (5).) 
C.  M.  0. 15, 1910. 12.  But  this  will  not  be  construed  as  prohibiting  the  imposition  of 
this  sentence  on  board  ships  on  which  circumstances  render  it  desirable. 

24.  Finding— The  finding  and  sentence  in  deck  courts  should  never  be  typewritten,  but 

should  be  in  the  handwriting  of  the  deck  court  officer.    C.  M.  O.  24, 1909, 3. 

25.  1-4893.   See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

26.  Jeopardy,  former— A  trial  by  deck  court  composed  of  a  boatswain,  though  completed, 

does  not  constitute  former  jeopardy,  as  the  deck  court  so  constituted  was  without 
jurisdiction  and  illegally  constituted,  in  that  the  law  requires  the  deck  court  officer  to 
be  a  commissioned  officer.  The  man  may  therefore  be  tried  for  the  same  offense  before 
a  properly  constituted  deck  court  or  court-martial.  File  27217-1C48,  Sec.  Navy, 
Mar.  24, 1915;  C.  M.  0. 12, 1915,  7.  See  also  C.  M.  O.  42, 1909, 16;  File  27217-1611. 

27.  Judge— Deck  court  officer,  as.    C.  M.  0. 14, 1911,  7. 

28.  Jury— Deck  court  officer,  as.    C.  M.  0. 14, 1911,  7. 

29.  Jurisdiction — Of  a  deck  court  is  expressly  limited  by  law  to  minor  offenses.    C.  M.  O. 

7,  1914,  10. 

30.  Limitation  of  punishments.    C.  M.  0. 1, 1914,  5;  35, 1915,  7. 

31.  Medical  officer's  certificate — Required  on  record  when  sentence  includes  confinement 

on  bread  and  water  or  reduced  rations  for  over  10  days.  See  CONFINEMENT,  5;  DECK 
COURTS,  8. 

32.  Oath— The  deck  court  officer  shall  swear  the  recorder  to  keep  a  true  record,  but  the 

recorder  shall  not  swear  the  deck  court  officer.  C.  M.  O.  24, 1909,  3;  14, 1911,  4;  File 
27217-949,  Sec.  Navy,  Nov.  15, 1912. 

Deck  court  officer,  while  serving  hi  that  capacity  shall  have  power  to  administer 
oaths.  C.  M.  0. 14, 1911, 9.  See  also  DECK  COURTS,  12. 

33.  Officer— Illegally  sworn  as  a  witness.    See  DECK  COURTS,  58. 

34.  Origin— Original  correspondence  proposing  the  deck  court.    File  1174-04,  J.  A.  G.. 

Feb.  4, 1904.    See  also  An.  Rep.  J.  A.  G.,  1904,  p.  8;  1908,  p.  8. 

35.  Pay— In  no  case  shall  a  deck  court  adjudge  discharge  from  the  sen-ice,  nor  shall  it  ad- 

judge confinement  or  forfeiture  of  pay  for  a  longer  period  than  20  days.  The  order 
constituting  the  court  shall  be  in  writing.  C.  M.  O.  24,  1909,  3;  1,  1914,  5.  See  also 
File  3980-452:  2,  J.  A.  G.jDec.  8, 1909,  p.  7;  27217-1900.  Sec.  Navy,  Aug.  24, 1916. 

Loss  of  pay  in  both  summary  courts-martial  and  deck  courts  should  be  ex- 
pressed in  dollars  and  cents — not  days'  pay— and  should  be  based  upon  the  actual 
pay,  not  including  extras  for  mess  cook,  gun  pointer,  acting  coxswain,  etc.  C.  M.  O. 
24, 1909,  3.  See  also  File  221 4^2. 

36.  Same — Summary  courts-martial  and  deck  courts  are  authorized  by  section  8  of  the  act 

of  February  16, 1909  (35  Stat.  621),  to  award  a  loss  of  pay  by  itself,  without  confine- 
ment. C.  M.  O.  24, 1909,  3. 

37.  Same — Loss  of  pay  in  summary  courts-martial  and  deck  courts  should  be  checked  upon 

approval  by  the  "Senior  Officer  Present  or  convening  authority,  respectively,  and  no 
notation  should  be  made  as  to  the  loss  of  pay  being  "Subject  to  the  approval  of  the 
Secretary  of  the  Navy."  Such  reference  is  no  longer  necessary,  as  is  evident  from 
section  17  of  the  act  of  February  16, 1909  (35  Stat.  621),  embodied  in  General  Order  No. 
12,  Feb.  17,  1909.  C.  M.  O.  24, 1909,  3. 

38.  Same— Notation  must  be  placed  on  the  record  that  checkage  or  deduction  of  pay 

has  been  made  pursuant  to  the  sentence.    C.  M.  O.  34, 1913,  5. 

39.  Same— Officer  making  checkage  or  reduction  of  pay  must  sign  notation  that  pay  has 

been  checked  or  deducted.    C.  M.  O.  34, 1913,  5. 

40.  Same — Rate  of  pay  should  appear  on  the  record.    C.  M.  O.  34, 1913, 6. 

41.  Same— In  both  summary  court-martial  and  deck  court  records,  the  pay  officer  should 

show  over  his  signature  the  amount  of  checkage  or  deduction  made  in  each  case. 
C.M.O.24,  1909,  3. 

42.  Place  of  trial— Should  appear  on  the  record.    C.  M.  O.  34, 1913, 5. 6. 

43.  Plea — Record  must  show  plea  of  accused.    File  27217-1675,  Sec.  Navy,  Apr.  26, 1915. 

44.  Precept.   See  DECK  COURTS,  15. 


158  DECK   COURTS. 

45.  Bate  of  pay— Should  appear  on  the  record — The  rate  of  pay  of  an  accused  should  be 

indicated  on  the  records  of  deck  courts.  The  statement  or  the  pay  status  of  an  accused 
is  incorporated  in  deck  court  records  as  a  means  of  preventing  excessive  or  illegal  sen- 
tences involving  pay.  (Forms  of  Procedure,  1910,  p.  161,  180;  C.  M.  O.  28,  1910,  4.) 
C.  M.  O.  34, 1913,  4;  12, 1915,  7. 

46.  Bank  of  deck  court  officer.    C.  M.  0. 24, 1909, 3;  34, 1913,  4.    See  also  DECK  COURTS, 

10. 

47.  Record — The  record  of  a  deck  court  shall,  when  completed,  he  at  once  forwarded  by 

the  convening  authority  to  the  Judge  Advocate  General.    (R-516.) 

48.  Becorder— Is  not  a  part  of  the  deck  court;  he  is  merely  detailed  to  perform  the  clerical 

duty.    C.  M.  0. 14, 1911,879.    See  also  DECK  COURTS,  58. 

The  law  does  not  require  the  deck  court  officer  to  be  sworn  and  although  it  re- 
quires the  recorder  to  be  sworn,  a  neglect  in  this  respect  would  be  proper  grounds  for 
objection  by  accused  at  time  of  trial,  and  not  one  that  he  could  use  or  not  use  at 
his  own  pleasure  when  the  result  of  the  trial  becomes  known.  C.  M.  O.  24, 1909.  3; 
14, 1911,  4;  File  27217-949.  See  also  DECK  COURTS,  58. 

49.  Beduction  in  rating— And  confinement,  not  both  to  be  included  in  same  sentence. 

See  CONFINEMENT,  11.    See  also  File  27217-787,  J.  A.  G..  May  18, 1912. 

50.  Bef  using  trial  by  deck  court — In  case  a  man  refuses  trial  by  deck  court  and  is  brought 

to  trial  before  a  summary  court,  no  mention  concerning  such  refusal  should  be  made 
in  the  record  of  the  summary  court-martial.  C.  M.  O.24, 1909,3.  See  also  CHALLENGES, 
3;  DECK  COURTS,  9;  SUMMARY  COURTS-MARTIAL,  26. 

51.  Sentence — Deck  courts  can  not  legally  impose  sentences  not  specifically  provided  for 

by  statute.    C.  M.  O.  33,  1914,  4.    See  also  File  27217-1752,  Sec.  Navy,  Sept.  25,  1915. 

52.  Same— Confinement  or  loss  of  pay  over  twenty  days  or  discharge  not  to  be  adjudged. 

See  DECK  COURTS,  35. 

53.  Same — Extra  police  duties  and  loss  of  pay  are  the  only  additions  which  may  be  made 

to  the  other  punishments  authorized  by  A.  G.  N.  30.  Part  of  one  of  the  punishments 
may  not  be  added  to  a  part  of  another  of  thosepunishments.  C.  M.  O.  33, 1914, 4. 

54.  Same— Must  be  in  handwriting  of  deck  court  officer.    C.  M.  O.  24, 1909, 3. 

55.  Same — Reduction  in  rating.    See  DECK  COURTS,  8,  49. 

56.  Same— An  enlisted  man  was  tried  by  deck  court  and  sentenced  to  "forty-eight  (48) 

hours  extra  duty."  The  department  disapproved  the  sentence,  since  deck  courts 
are  restricted  in  their  sentences  to  "the  punishments  prescribed  by  article  thirty  of 
the  Articles  for  the  Government  of  the  Navy:  Provided,  That  in  no  case  shall  such 


those  authorized.    (See  Navy  Regulations,  1913,  R-619  (1).    See  also  Forms  of  Pro- 


cedure, 1910,  p.  179;  C.  M.  O.  2, 1912,  pp.  4-11;  33, 1914,  pp.  4-6.)  File  27217-1761,  Sec. 
Navy,  Oct.  6, 1915;  C.  M.  O.  35, 1915,  7. 

Where  an  enlisted  man  was  sentenced  to  "two  (2)  months'  restriction,"  etc.,  the 
department  set  that  part  of  the  sentence  aside.  File  27217-1831,  Sec.  Navy,  Feb. 
19,1916. 

The  sentence  may  be  carried  into  effect  upon  approval  of  the  convening  authority 
or  his  successor  in  office.  (Act  Feb.  16, 1909,  35  Stat.,  623.)  File  3980-1075,  J.  A.  G. 
April  6, 1915. 

57.  Service  records — Entries  in.    See  DECK  COURTS,  21. 

58.  Setting  aside — An  enlisted  man  was  tried  by  deck  court,  pleaded  "not  guilty,"  found 

"guilty"  by  the  deck  court,  and  sentenced.  He  appealea  from  the  sentence  in  accord- 
ance with  the  act  of  February  16, 1909,  section  6  (35  Stat.  621),  and  the  entire  record  of 
the  case  was  transmitted  to  the  department. 

The  grounds  of  the  appeal  were  stated  as  follows: 

(a)  That  after  every  possible  effort  made,  before  my  person,  by  the  officer  holding 
the  court  and  before  the  actual  trial  took  place,  to  procure  any  suitable  witnesses  who 
could  be  used  by  the  prosecution,  no  witness  could  be  found  who  would  state  posi- 
tively, when  the  trial  began,  that  I  had  been  given  an  order  to  return  at  a  stated 
time. 

(6)  That  in  consequence  of  the  failure  of  the  court  to  procure  this  witness  the  officer 
before  whom  I  was  tried  turned  prosecuting  witness  himself,  and  that  while  acting 
as  such  turned  the  court  over  to  the  recorder,  an  enlisted  man. 

(c)  That  I  was  advised  by  the  court  that  it  was  better  for  me  to  plead  "Guilty," 
since  it  was  cheaper  in  the  end  and  would  save  time,  and  that  I  would  be  foolish  to 
plead  otherwise. 


DECK    COURTS.  159 

He  therefore  maintained  that  he  was  illegally  tried,  and  that  an  examination  ol  the 
record  of  testimony  and  the  proceedings  of  the  court  sustain  this  view. 

The  deck  court,  in  this  case,  consisted  of  a  medical  officer,  with  a  yeoman  second 
class  acting  as  recorder.  The  record  shows  that  the  deck  court  officer  was  called  as  a 
witness  for  the  prosecution,  was  sworn  by  the  recorder,  and  gave  material  evidence. 
No  objection  was  made  by  the  accused  to  the  manner  of  the  swearing  of  this  witness, 
nor  to  any  of  his  testimony. 

The  question  presented  by  this  state  of  facts  is  as  to  the  effect  of  the  deck  court 
officer  taking  the  stand  as  a  witness  for  the  prosecution  and  being  sworn  by  the  re- 
corder, an  enlisted  man. 

In  this  case  the  deck  court  officer  might  be  a  competent  witness  if  there  were  any 
method  by  which  he  might  be  legally  sworn. 

The  act  of  February  16, 1909  (35  Stat .  621,  sec.  2),  provides  that  the  deck  court "  shall 
consist  of  one  commissioned  officer  who,  while  serving -in  such  capacity,  shall  have 
power  to  administer  oaths,  to  hear  and  determine  cases,  and  to  impose  in  whole  or  in 
part  the  punishments  prescribed  *  *  *." 

Owing  to  the  fact  that  the  deck  court  officer  is  alone  authorized  to  administer  the 
oath  to  witnesses,  and  as  he  may  not  swear  himself,  he  was  in  fact  incompetent.  But 
in  criminal  as  well  as  in  civil  actions,  when  the  witness  leaves  the  stand,  there  is  an 
end  of  all  question  as  to  his  competency;  it  is  then  too  late  to  object  on  this  ground, 
especially  if  his  incomnetency  appeared  when  he  was  first  on  the  witness  stand. 
(A.  &  E.  Encycl.  LaWj  v.  30,  p.  971,  and  cases  cited.) 

Therefore  the  objection,  regarded  as  being  to  the  witness's  competency,  comes  too 
late  when  not  made,  as  in  this  case,  until  aiter  the  conclusion  of  the  trial.  As  stated 
by  De  Hart,  supra,  the  testimony  of  an  -incompetent  witness  does  not  necessarily 
vitiate  the  proceedings. 

There  is  another  question,  however,  to  be  considered,  and  that  is  as  to  the  effect 
of  the  deck  court  officer  taking  the  witness  stand,  occupying  the  position  of  witness, 
and  relinquishing  the  conduct  of  the  case  to  the  recorder,  whose  functions  are  in  no 
sense  judicial,  but  are  purely  ministerial  and  subordinate.  If,  for  example,  a  question 
had  arisen  as  to  the  admissibility  of  evidence  given  by  the  witness  in  question,  by 
whom  would  the  matter  have  been  decided?  By  the  witness,  resuming  his  seat  as 
deck  court  officer,  or  by  the  recorder?  The  deck  court  officer  is  acting  not  alone  as 
jury,  but  also  as  judge,  and  in  such  status  he  should  not  also  act  as  a  witness.  A 
judge  is  not  a  competent  witness  in  a  cause  being  tried  before  him.  (23  Cye.  689.) 

While  the  authorities  are  not  uniform  that  a  judge  must  retire  from  the  bench  after 
appearing  as  a  witness,  yet,  perhaps  by  the  weight  of  authority,  such  a  withdrawal  is 
now  regarded  as  the  more  proper  one;  but  it  seems,  as  already  stated,  that  timely 
objection  must  be  made  even  in  such  cases.  Of  course,  in  the  case  of  a  deck  court,  the 
voluntary  withdrawal  of  the  deck  ciurt  officer  would  be  impossible  and  the  matter 
should  be  provided  for  by  the  appointment  of  a  dillerent  deck  court  for  the  trial  of 
the  case.  As  no  objection  was  made  in  the  case  under  consideration  before  the  court 
concluded  its  consideration  thereof,  it  might  therefore  be  held  that  technically  the  ac- 
cused acquiesced  in  the  reception  of  the  evidence,  that  the  irregularit  y  was  thereby 
cured,  and  that  the  proceedings  were  not  objectionable  on  that  ground  alone.  But  it  is 
believed  that  no  recent  case  of  good  authority  supports  the  view  that,  where  there  is 
but  a  single  judge  who  acts  not  only  as  such  but  also  as  jury,  he  should,  if  called  as  a 
witness,  remain  on  the  bench  during  the  remainder  of  the  trial.  Such  conduct  would 
undoubtedly  be  highly  improper.  In  this  case  it  is  the  more  so  because  of  the  fact 
that  the  testimony  of  the  deck  court  officer,  the  judge,  was  highly  material  to  the 
prosecution,  and  it  would  seem  that,  as  it  was  given  by  the  deck  court  officer  himself, 
it  would  inevitably  tend  to  bias  his  ultimate  decision  no  matter  how  favorable  the 
evidence  of  the  defense  might  have  been. 

The  proceedings  also  show  that  the  deck  court  officer  allowed  the  recorder,  an 
enlisted  man,  to  conduct  the  case  and  to  examine  the  witnesses  for  both  the  prosecu- 
tion and  the  defense.  The  status  of  the  recorder  of  a  deck  court  is  not  at  all  tne  same 
as  that  of  a  recorder  of  a  summary  court-martial.  Such  court  consists  "of  three  officers 
not  below  the  rank  of  ensign,  "as  members,  and  of  a  recorder."  (277,  A.  G.  N.) 
On  the  other  hand,  section  2  of  the  act  of  February  16,  1909  (35  Stat.  621),  provides 
that  the  deck  court  "shall  consist  of  one  commissioned  officer  only,"  and  the  recorder 
of  such  court  is  no  constituent  part  thereof,  but  is  detailed  merely  to  perform  the 
clerical  work  of  the  court.  Therefore,  in  allowing  the  recorder  of  this  court  to  perform 
the  functions  of  the  deck  court  officer  himself  was  contrary  to  law,  and  such  delegation 

50756°— 17 11 


160  DECK    COURTS. 

to  the  recorder  of  the  duties  that  should  be  performed  by  the  deck  court  officer,  includ- 
ing the  administration  of  the  oath  to  him  as  a  witness,  was  entirely  irregular. 

In  addition  to  the  foresioins;  facts,  if  the  testimony  of  the  deck  court  officer  be  disre 
garded,  the  remaining  evidence  in  the  case  does  not  appear  to  prove  the  alleged  offense 
beyond  a  reasonable  doubt.  Nor  does  it  appear  from  the  record,  as  should  be  the  case 
and  as  required  by  the  Forms  of  Procedure,  whether  an  opportunity  was  afforded  or 
desired  for  cross-examination  of  the  witnesses. 

In  view  of  the  foregoing  facts,  as  well  as  minor  irregularities  not  deemed  necessary 
to  notice  specifically  because  of  those  already  mentioned,  the  department  set  aside 
the  proceedings  of  the  deck  court  in  this  case.  C.  M.  O.  14,  1911,  9. 

59.  Specifications— -The  following  specifications  for  alleged  offenses  have  appeared  upon 

deck  court  records: 

"Specification:  Disobedience  of  orders." 
"Specification:  Returning  from  liberty  three  hours  overtime." 
"Specification:  Dirty  rifle." 

"  Specification:  In  that  he  made  a  false  statement  to  his  superior  officer. " 
The  above  specifications  are  insufficiently  drawn  and  not  in  accordance  with 
Article  1706,  United  States  Navy  Regulations,  1909  [R-713|. 

It  is  manifest  that  failure  to  set  forth  in  each  specification  the  name  and  ra^e  of  the 
accused,  the  offense  and  the  date  of  the  commission  thereof,  and  all  other  material 
facts  connected  with  the  offense  not  only  militates  against  the  accused,  but  makes 
possible  a  second  trial  for  the  same  offense.  C.  M.  O.  42, 1909, 16. 

60.  Speedy  trials.    See  SPEEDY  TRIALS. 

61.  Warrant  officers — When  actually  in  command  of  naval  vessels  may  convene  deck 

courts.    See  DECK  COURTS.  4, 5. 

62.  Same — A  warrant  officer,  not  being  a  commissioned  officer,  can  not  act  as  a  deck  court 

officer,  and  in  a  case  where  one  acted  as  such  the  department  stated  that  a  deck  court 
"so  constituted  has  no  legal  status,  has  no  jurisdiction,  and  that  its  acts  are  ab  inilio 
null  and  void."  (See  Navy  Regulations  1013,  R-502;C.  M.  O.  7, 1914,11.)  File  27217- 
1648,  Sec.  Navy,  Mar.  24, 1915;  C.  M.  O.  12, 1915,  5.  See  also  DECK  COURTS,  26. 

DECORATIONS.    See  also  OFFICERS  OF  THE  UNITED  STATES. 

1.  Act  of  Congress— (Private),  Jan.  31, 1881  (21  Stat.  603)— Authorizing  certain  officers  to 

accept  certain  decorations  from  foreign  governments. — Cross  of  the  Legion  of  Honor 
from  France. — The  Order  of  Kemehameha  the  First  from  the  King  of  the  Hawaiian 
Islands. — A  pair  of  flower  vases  and  a  lacquered  box  from  the  Japanese  Government.— 
The  Grand  Cross  of  Naval  Merit,  with  a  white  badge,  from  the  Spanish  Government. 
G.  O.  261,  Feb.  7,1881. 

2.  Jurisdiction — In  view  of  the  fact  that  the  Secretary  of  State  under  direction  of  the 

President  has  charge  of  all  matters  involving  the  foreign  relations  of  the  United  States, 
the  question  as  to  whether  an  officer  may  accept  medals,  diplomas,  decorations,  etc., 
from  a  foreign  state  without  the  consent  of  Congress  is  one  which  is  under  the  j  urisdic- 
tion  of  the  Department  of  State.  File  9644-31,  J.  A.  G.,  Aug.  20, 1913.  See  also  File 
9644-27,  J.  A.  G.,  Jan.  24,  1913.  Seealso  File3707-04,  J.  A.  G.,  June  15, 1904;  13,  J.  A.  G. 
332,  holding  that  certain  medals  tendered  through  the  Department  of  State  from 
foreign  Governments  may  properly  be  delivered  by  Navy  Department  to  the  enlisted 
men  for  whom  they  were  intended. 

3.  Medal — The  acceptance  by  a  naval  officer  who  is  a  naval  attache1  at  London,  of  the 

medal  commemorative  of  the  sixtieth  anniversary  of  the  reign  of  Queen  Victoria, 
would  be  a  violation  of  the  act  of  Congress  approved  Jan.  31, 1881  (21  Stat.  603).  File 
4184-97,  J.  A.  G.,  Aug.  5, 1897. 

4.  Medal  and  diploma— By  an  officer  from  Chinese  Government.    File  9644-31,  J.  A.G., 

Aug.  20, 1913. 

5.  Prussian  life-saving  medal  and  ribbon — Acceptance  of  by  enlisted  men.    See  File 

9644-27,  J.  A.  G.,  Jan.  24, 1913.  Seealso  File  9644-31,  J.  A.  G.,  Aug.'20, 1913;  9644-32, 
J.  A.  G.,  Sept.  25, 1913. 

6.  Public  wearing— Of  medals  presented  by  foreign  governments  is  not  authorized  by  the 

Navv  Regulations.  File  3707,  June  15,  1904.  See  in  this  connection  act  Jan.  31, 1881, 
sec.  2  (21  Stat.  604),  which  is  published  in  full  in  G.  0. 261,  Feb.  7, 1881. 

DEFENDANT. 

1.  Court  of  Inquiry  record— Defendant  can  not  demand  a  copy  of.    See  COURTS  OF 
INQUIRY,  12. 

DEGRADE. 

1.  Questions— The  answers  to  which  would  degrade.    See  SELF-IXCRIMINA.TION  11, 12. 


DEMURRER.  161 

DEGREE  OF  CRIMINALITY  INVOLVED. 

1.  Accused  pleads  "guilty"— It  is  directed  that  in  all  cases  where  the  accused  pleads 
"guilty,"  and  the  specification  does  not  set  forth  the  particulars  of  the  offense,  the 
court  call  upon,  or  permit,  the  -judge  advocate  to  adduce  testimony  that  may  conduce 
to  the  correct  understanding,  both  by  the  court  itself  and  the  reviewing  authority  as 
to  the  de'jree  of  criminality  involved  and  the  proper  measure  of  punishment  to  be 
imposed.  C.  M.  O.  6, 1909/3.  Seealfo  C.  M.  O.  50, 1900, 1;  EVIDENCE,  42. 

DELEGATION  OF  POWERS. 

1.  Courts-martial.   See  COURT,  65:  DECK  COURTS,  58  (p.  159). 

2.  President.   See  PRESIDENT  OF  THE  UNITED  STATES,  13, 16. 

3.  Public  officers— It  is  a  well  settled  rule  that  a  public  oflicer  can  not  delegate  powers 

which  require  the  exercise  of  judgment  and  discretion,  but  authority  to  do  acts 
merely  administrative  or  mechanical  may  be  delegated.  See  File  16S9-7,  Oct.' 30, 
1900. 

4.  Secretary  of  the  Navy— Must  personally  review  general  courts-martial  of  which  be  is 

the  convening  authority.  See  CRITICISM  OF  COURTS-MARTIAL,  35;  SECRETARY  OF 
THE  NAVY,  24. 

"DELI  BER  ATELY." 

1.  Definition — "  By  the  use  of  the  word  'deliberately '  in  describing  a  crime  the  idea  is  con- 
veyed that  the  perpetrator  weighs  the  motives  for  the  act  and  its  consequences,  the 
nature  of  the  crime,  or  the  things  connected  with  the  intention,  with  a  view  to  a  deci- 
sion thereon:  that  he  carefully  considers  all  these,  and  that  the  act  is  not  suddenly 
committed.  It  implies  that  the  perpetrator  must  be  capable  of  the  exercise  of  such 
mental  powers  as  are  called  into  use  by  deliberation  and  the  consideration  and  weigh- 
ing of  motives  and  consequences. "  (State  v.  Wells,  1  N.  J.  Law  (Coxe),  424.)  C.  M. 
O.  14,  1910,  10. 

"DELIBERATELY  AND  WILLFULLY." 

1.  Avoiding  foreign  service— An  accused  was  charged  with  "deliberately  and  willfully  " 

avoiding  foreign  service,  by  absenting  himself  without  authority,  a'nd  found  guilty. 
C.  M.  O.  69,  1900. 

2.  Fraudulent  enlistment — Where  a  court  found  the  accused  guilty  of  "deliberately 

and  willfully  "  concealing  certain  facts  from  a  recruiting  officer,  but  that  such  act  of  the 
accused  was  "without  culpability''  the  department  held  that  such  findings  were 
utterly  inconsistent  and  that  the  court,  in  revision,  should  not  have  adhered  to  such 
finding,  and  therefore  disapproved  the  proceedings,  findings,  and  acquittal.  C.  M.  O . 
7,  1911,  16. 

3.  Missing  ship-^Where  an  accused  was  charged  with  "  conduct  to  the  prejudice  of  good 

order  and  discipline,"  the  specification  alleging  that  he  "willfully  and  deliberately" 
remained  absent  until  the  ship  sailed,  thereby  avoiding  duty  on  said  ship,  and  to 
which  accused  pleaded  guilty,  and  then  stated  that  he  left  the  ship  and  got  drunk  and 
when  he  "came  to,"  he  went  to  the  dock  and  found  the  ship  gone,  the  department 
held  that  such  statement  was  inconsistent  with  the  plea  of  guilty  to  deliberately  and 
willfully  remaining  absent  fram  the  ship.  These  words  imply  that  the  act  was  done 
in  the  free  activity  of  the  perpetrator's  mind,  after  a  careful  weighing  of  the  motives 
and  a  definite  decision  to  commit  the  act.  C.  M.  O.  14, 1910,  10-11.  See  also  Fi'e 
20251-12739,  Sec.  Navy,  Jan.,  1917. 

DEMURRER. 

1.  Counsel  for  accused— Demurred  and  objected  to  the  specification  of  a  charge,  and  the 

"objection"  was  overruled  by  the  court.    G.  C.  M.  Rec.  28681,  pp.  27,  39. 

2.  Same — After  arraignment  and  before  pleading,  the  accused,  by  his  counsel,  offered 

what  he  termed  a  demurrer,  alleging  that  the  third  charge  was  merely  a  repetition  of 
the  first,  and  claiming  that  the  "gravamen  of  the  offense  in  the  first  charge  is  alcohol- 
ism and  that  of  the  third  charge  is  drunkenness,  which  are  one  and  the  same  thing." 
The  court  very  properly  overruled  this  contention.  C.  M.  0. 104, 1896,  3. 

3.  Definition.    See  WORDS  AND  PHRASES. 

4.  "  Motion  to  strike  out" — Is  virtually  a  demurrer.    G.  C.  M.  Rec.  21478,  p.  4. 

5.  No  such  thing— As  a  demurrer  in  naval  courts-martial  procedure.    File  26251-12309, 

J.  A.  G..  Oct. ,1916. 

6.  Technical  errors — Are,  in  general,  those  which  the  charges  and  specifications  disclose, 

and  which  would  be  sufficient  to  sustain  a  demurrer  or  special  plea.  C.  M.  O.  42, 
1914, 3.  See  also  CHARGES  AND  SPECIFICATIONS,  33. 


162  DEPOSITIONS. 

DENTAL,  CORPS.    See  DENTAL  SURGEONS. 

DENTAL  RESERVE  CORPS. 

1.  Acts  of  Aug.  23, 1912,  and  Mar.  4, 1913— The  Attorney  General  held  that  the  laws 
were  properly  interpreted  by  the  Judge  Advocate  General,  and  that  the  act  of  Mar.  4, 
1913,  did  not  repeal  the  provisions  of  the  act  of  Aug.  22, 1912,  establishing  the  regular 
Dental  Corps  of  the  Navy. 

The  Dental  Reserve  Corps  is  being  and  has  since  its  creation  in  1913  been  adminis- 
tered in  all  respects  the  same  in  relation  to  the  regular  Dental  Corps  as  is  the  Medical 
Reserve  Corps  in  relation  to  the  regular  Medical  Corps  of  the  Navy,  which  was  the 
•clear  intention  of  the  law.  File  13707-39:7,  J.  A.  G.,  Jan.  15, 1916. 

DENTAL,  SERVICES. 

1.  Prisoners — Payment    for  dental  services  rendered  general  court-martial  prisoners  is 

made  from  such  pay  as  may  be  due  them.  If  no  such  pay  is  due,  then  it  is  paid  by 
the  Government  from  "Pay,  miscellaneous."  File  26287-128,  Mar.  28,  1912. 

2.  Enlisted  men.    File  13707-27,  J.  A.  G.,  Jan.  17, 1913;  26287-12  <;  262~5-57;  26251-3908:7; 

26251-3  36:18;  26251-5408:6;  26251-6«38:2;  26251-5239:4;  26254-445;  26254-1250:1;  26262- 
1077:5;  13707-27:1;  lOCompt.  Dec.,  702;  17Compt.  Dec.,  555;  86  S.  and  A.  Memo.,  641. 

DENTAL,   SURGEONS. 

1.  Acting  Assistant  Dental  Surgeons.    See  ACTING  ASSISTANT  DENTAL  SURGEONS,  1. 

2.  Same — Where  Congress  authorized  the  appointment,  from  the  Navy  Dental  Reserve 

Corps,  of  "dental  corps  officers  of  permanent  tenure,"  the  language  quoted  was  con- 
strued to  mean  that  such  appointments  were  to  be  made  to  the  grade  of  acting  as- 
sistant dental  surgeon,  which  was  the  only  grade  in  the  Regular  Dental  Corps  at  the 
time  the  law  was  passed,  as  the  grade  of  assistant  dental  surgeon  was  not  to  come 
Into  existence  until  more  than  two  years  later.  File  13707-38: 9. 

•'3.  Circular— For  the  information  of  persons  desiring  to  become.  File  1307-48,  J.  A.  G., 
Aug.  2, 1915. 

4.  Dental  Reserve  Corps— Act,  Aug.  22,  1912  (35  Stat.,  891)  did  not  establish.    File 
13707-24,  J.  A.  G.,  Oct.  19, 1912.    Seealso  File  13707-30,  J.  A.  G.,  Apr.  7, 1913. 
Buttheactof  Mar.4, 1913,  and  act  of  Aug.  29,  1916,  did  establish  such  reserve  corps. 

•5.  Examinations— Scope  of.    File  13707-53. 

<6.  Medical  Reserve  Corps — Appointments  of  dental  officers  to  the  Medial  Reserve  Corps 
of  the  Navy  under  act  Aug.  22, 1912  (35  Stat.,  891).  Pile  13707-20,  J.  A.  G.,  Feb. 
19, 1913. 

7.  Naval  Academy— Dentist  at  the  Naval  Academy.  File  13707-25,  J.  A.  G.,  Oct.  24, 
1912;  26280-58,  Sec.  Navy,  June  17,  1915,  pp.  3-4;  13707-36.  See  also  APPOINTING. 
POWER,  2. 

8  Naval  Dental  Corps— "Shall  be  a  part  of  the  Medical  Department  of  the  Navy" 
(Act,  Aug.  29,  1916,  39  Stat.  574). 

9.  Rank  of.    See  File  13707-20,  J.  A.  G.,  Sept.  7, 1912. 

DEPARTMENT  OF  JUSTICE.    Seealso  ATTORNEY  GENERAL. 

1.  Collision— Even  though  damages  are  slight,  Department  of  Justice  will  take  cognizance. 

See  COLLISION,  7. 

2.  Counsel  for  United  States— In  Court  of  Claims.    C.  M.  0. 12, 1915, 12.    See  also  REG- 

ULATIONS, NAVY,  16. 

3  Federal  Judiice— Irregular  action  of,  brought  to  attention  of  Department  of  Justice. 
C.  M.  O.  22, 1915,  7.  See  alto  DESERTERS,  2. 

4.  Legal  assistance— For  officers  and  enlisted  men.    C.  M.  O.  20, 1915,  5.    Seealso  LEGAL 

ASSISTANCE  FOR  OFFICERS  AND  ENLISTED  MEN. 

5.  Naval  cases— Department  of  Justice  will  instruct  district  attorneys  to  render  assistance 

to  officer  upon  whom  a  writ  of  habeas  corpus  is  served  (See  File  26522;  G.  O.  121); 
also  in  other  cases  of  legal  proceedings  instituted  against  officers  of  Navy  as  result  of 
official  acts.  See  LEGAL  ASSISTANCE  FOR  OFFICERS  AND  ENLISTED  MEN. 

DEPARTMENT  OF   LABOR. 

1.  Chinese— Citizenship  of.    See  CITIZENSHIP,  5. 

DEPOSITIONS. 

1.  Act  of  Congress,  February  16, 1909  (35  Stat.  622)— Authorizes  the  taking  and  putting 
in  evidence  of  depositions  and  provides  that  the  same  may  be  taken  and  used  before 
naval  courts-martial  except  in  capital  cases  and  in  cases  where  the  punishment  may 
be  confinement  or  imprisonment  for  more  than  one  year. 


DEPOSITIONS.  163 

The  statute  further  provides  that  depositions  may  be  taken  on  reasonable  notice  to 
the  opposite  party,  and  may  be  taken  of  persons  in  the  naval  or  military  service  sta- 
tioned or  residing  outside  of  the  State,  Territroy ,  or  District  in  which  a  naval  court- 
martial  is  ordered  to  sit,  or  who  are  under  orders  to  go  outside  of  such  State,  Territory, 
or  District.  C.  M.  O.  47, 1910,  9-10. 

2.  Affidavits— Differ  from  depositions,  as  in  the  latter  the  opposite  party  has  an  oppor- 

tunity to  cross-examine.    C.  M.  O.  21, 1910, 12;  48, 1915,  2.    See  also  AFFIDAVITS,  4. 

3.  Approval— Necessity  of  approval  by  convening  authority  and  court. — Where  the  taking 

of  depositions  is  explicitly  authorized  by  the  law  (sec.  16  of  the  Act  of  Feb.  16,  1909, 
35  Stat.;  622),  they  may  be  taken  by  the  judge  advocate  without  approval  either  by  the 
convening  authority  or  the  court.  In  doubtful  cases  the  above  law  leaves  the  matter 
entirely  to  the  convening  authority.  (C.  M.  O.  29,  1915,  pp.  5-6.)  Forms  of  Pro- 
cedure, 1910,  p.  67,  provides  the  method  of  procedure  to  obtain  depositions  but  does 
not  state  that  the  consent  of  the  court  must  first  be  obtained  before  a  deposition  is 
taken.  In  other  words,  the  power  of  the  court  is  merely  to  pass  upon  the  interroga- 
tories submitted  and  to  propose  such  additional  questions  as  it  may  deem  necessary, 
and  not  to  say  whether  or  not  the  deposition  may  be  taken.  When  a  deposition  has 
thus  been  taken,  and  is  oflered  in  evidence,  the  court  may  then  decide,  if  objection  is 
offered,  whether  or  not  it  is  admissible.  C.  M.  O.  41, 1915, 1, 11. 

4.  Chiefs  of  Bureaus,  by— Chiefs  of  Bureaus  in  the  Navy  Department  have  been  author- 

ized by  the  Secretary  of  the  Navy  to  answer  interrogatories  propounded  before  a  com- 
missioner duly  appointed  by  a  State  court  to  take  their  testimony  without  any  sum- 
mons being  issued  by  a  justice  of  the  Supreme  Court  of  the  District  of  Columbia,  as 
provided  for  by  R-8/1.  See  for  example  1  ile  12475-52,  Oct.  31, 1914. 

5.  Constitutionality  of— It  was  held  by  the  Attorney  General  that  an  Article  of  War 

authorized  "depositions  taken  in  accordance  with  it  to  be  read  in  cases  not  capital;" 
although  the  Constitution  provides  that  the  accused  in  criminal  prosecutions  shall 
have  the  right  to  be  confronted  with  the  witnesses  against  him.  (9  Op.  Atty.  Gen.. 
311,  312.)  File  20200-1392;  20260-697,  J.  A.  G.,  June  29,  1911,  p.  30. 

6.  Courts  of  inquiry — In  this  case  the  department  directed  that  the  evidence  desired  by 

the  court  of  inquiry  be  obtained  by  depositions.  File  26250-739:1,  Sec.  Navy,  Feb. 
25, 1916. 

The  evidence  adduced  and  preserved  before  courts  of  inquiry  is  superior  fa  every 
respect  to  depositions.  (Mullan  v.  U.  S.,  42  Ct.  Cls.,  157,  176.)  See  COURTS  OF  IN- 
QUIRY, 21. 

7.  Dismissal — If  depositions  are  used  by  prosecution  dismissal  should  not  be  included  in 

sentence.    See  DEPOSITIONS,  12. 

8.  Maximum  sentence,  when  used— In  any  case  where  it  is  necessary  to  use  depositions 

at  the  trial  thereof  and  depositions  are  so  used,  the  maximum  punishment  under  such 
circumstances  shall  in  no  case  exceed  imprisonment  or  confinement  for  one  year. 
(R-900),  overruling  C.  M.  O.  47,  1910,  9-10;  5,  1911,  5.  See  also  in  this  connection, 
C.  M.  O.  50, 1893,  6;  99, 1893;  104, 1836,  6;  11, 1897,  2. 

9.  Party  securing  may  decline  to  introduce  as  evidence— At  the  request  of  the  accused 

the  department  had  directed  that  the  deposition  of  a  certain  enlisted  man  be  taken. 
After  this  deposition  was  taken  the  accused  discovered  that  its  contents  were  against 
his  interests  and  at  the  trial  declined  to  introduce  it  in  evidence. 

Thereupon  the  judgeadvocateattempted  to  introduce  thedeposition  in eyidence,and 
upon  objection  bein?  made  by  the  accused  the  court  sustained  the  objection. 

The  department  held  that  the  action  of  the  court  was  proper.  The  law  gives  an 
accused  the  right  to  cross-examine  a  witness  testifying  against  him  and  of  this  right  he- 
should  not  be  deprived.  If  the  judge  advocate  desired  the  testimony  of  the  witness 
in  question  to  be  introduced  for  the  prosecution,  the  proper  procedure  would  have 
been  for  him  to  secure  an  entirely  new  deposition,  in  which  case  the  accused  would 
prepare  the  cross-interrogatories  instead  of  the  judge  advocate. 

In  cases  like  the  above  where  the  party  taking  the  deposition  has  been  taken  by 
surprise,  the  court  should  allow  the  opposite  party,  if  he  desires,  time  to  procure 
another  deposition  from  the  deponent,  File  26251-11382,  Sec.  Navy,  Feb.  25,  1916; 
G.  C.  M.  Rec.  31728;  C.  M.  O.  5,  1916,  5-6. 

10.  Prisoners.    See  GENERAL  ORDER,  No.  121,  Sept.  17, 1914, 15. 

11.  Private  litigation.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914, 15. 


164  DEPOSITIONS. 

12.  Used  by  prosecution  to  aid  In  securing  conviction  of  officer—  Sentence  of  dismis- 

sal not  approved  as  a  matter  of  policy— As  it  became  necessary  for  the  judge  advocate 
in  order  to  prove  the  oflenses  alleged  in  the  charges  and  specifications  in  this  case,  to 
introduce,  in  behalf  of  the  prosecution,  a  deposition  obtained  from  a  witness  for  the 
prosecution  whose  presence  before  the  court  the  exigencies  of  the  service  rendered  it 
impracticable  to  obtain,  the  department  does  not  consider  it  desirable  as  a  matter 
of  policy  to  approve  a  sentence  calling  for  the  dismissal  of  an  officer  in  a  case  where  a 
deposition  has  been  thus  used  in  securing  his  conviction.  C.  M.  0. 11, 1916. 

13.  Weight  of— As  compared  with  evidence  adduced  by  a  court  of  inquiry.    See  COURTS 

OF  INQUIRY,  21. 

DEPOSITS. 

1.  Acting  warrant  officers— Entitled  to  make  deposits  and  draw  interest  on  them.    File 

.  26254-2020,  J.  A.  G.,  June  6, 1916.    Sec  also  ACTING  MACHINISTS. 

2.  Fleet  Naval  Reserve — Deposits,  with  interest,  of  enlisted  men  transferred  to  Fleet 

Naval  Reserve  under  provisions  of  Act,  Aug.  29,  1916  (39  Stat.  589),  must  be  paid 
to  them  at  time  they  are  so  transferred.  File  28550-22,  Sec.  Navy,  Nov.  24,  1916. 

3.  Marine  Corps.  See  MARINE  CORPS  ORDER  No.  84;  File  5460-81;  5252-66,  J.  A.  G.,  May 

13,  1915;  26806-139,  J.  A.  G.,  Feb.  26, 1916. 

4.  Warrant  officers— Act,  February  9, 1889  (25  Stat.  657),  does  not  authorize  deposits  of 

savings  by  warrant  officers  nor  thecontinuance  by  them  on  deposit  of  money  deposited 
prior  to  appointment  as  officers;  but  when  an  enlisted  man  is  appointed,  a  warrant 
officer,  his  deposit  account  should  be  treated  as  though  bis  enlistment  had  expired, 
as  was  formerly  held  by  the  department  in  the  cases  of  mates  before  the  practice  of 
discharging  and  reenlisting  them  was  commenced.  (See  File  16407,  July  28,  1903; 
3031-5,  Nov.  27, 1906.)  File  26254-2020,  J.  A.  G.,  June  6, 1916.  See  also  C.  M.  O.  17, 
1916,  10. 

DEPRIVATION  OF  LIBERTY  ON  SHORE  ON  FOREIGN   STATION. 

1.  Confinement— Distinguished   from.    See  CONFINEMENT,   12;    SUMMARY  COURTS- 

MARTIAL,  92. 

2.  Same — Both  confinement  and  deprivation  of  liberty  on  shore  on  a  foreign  station  may 

not  be  included  in  the  same  summary  court-martial  sentence.    C.  M.  O.  33, 1914,  5. 

3.  Deprivation  of  liberty— Adjudged  by  a  general  court-martial.    C.  M.  O.  40,  1893;  6, 

1896. 

4.  Deprived  of  liberty — A  general  court-martial  sentenced  an  enlisted  man  "to  be  de- 

prived of  liberty."    C.  M.  O.  55, 1893. 

5.  "On  shore  on  foreign  station"— A  sentence  of  "deprivation  of  liberty"  is  illegal 

unless  the  words  "on  shore  on  foreign  station  "  are  added,  and  the  court  in  adjudging 
sentence  shall  not  exceed  the  limit  of  three  months.  C.  M.  0. 33, 1914, 2. 

DEPUTY  MARSHALS. 

1.  Rewards  for  deserters.    See  REWARDS.  3. 

DERELICTS. 

1.  Department  authorized— Bureau  of  Navigation  to  take  the  necessary  steps  to  sink 
or  destroy  a  wreck  reported  by  the  War  Department  as  being  a  menace  to  navigation. 
File  4278-2,  Sec.  Navy,  Oct.  18, 1907. 

DERIGIBLE  HANGAR.    See  File  26842-8:14,  J.  A.  G.,  July  15, 1916. 

DESCRIPTIVE  LISTS. 

1.  Desertion— Judge  advocate  introduced  in  evidence  to  prove  "  Desertion"  the  descrip- 

tive list  of  accused,  wherein  it  was  entered  by  his  commanding  officer  that  he  had 
deserted  on  or  about  a  certain  date.  This  attempt  of  the  judge  advocate  to  prove 
desertion  by  a  mere  entry  on  the  descriptive  list  is  in  error.  C.  M.  0. 141, 1897,  2.  See 
also  DESCRIPTIVE  LIST,  3. 

2.  Fraudulent  enlistment— Proof  of.    See  DESCRIPTIVE  LIST,  3. 

3.  Nature  of —In  reviewing  the  record  of  proceedings  of  a  general  court-martial  in  the  case 

of  a  private.  United  States  Marine  Corps,  it  was  noted  that  the  judge  advocate  intro- 
duced and  the  court  recei  yed  in  evidence  the  descriptive  list  furnished  by  the  Adjutant 
and  Inspector  of  the  Marine  Corps;  which  is  neither  an  original  enlistment  record  nor 
even  a  certified  copy  of  one,  but  a  paper  made  up  from  probably  various  reports  and 
data  furnished  the  office  of  the  Adjutant  and  Inspector,  and  is  not  competent  evidence 
of  the  facts  set  forth  therein.  (Winthrop's  Military  Law,  2  ed.,  pp.  555,  556;  G.  C.  M. 
Order  No.  37,  dated  Nov.  1, 1909,  pp.  5,  6.) 

The  judge  advocate  should  have  secured  and  offered  in  evidence  the  enlistment 
record  or  descriptive  book  of  the  accused.    C.  M.  0. 14, 1910, 15. 


DESCRIPTIVE    LISTS.  165 

4.  Same— A  private,  U.  S.  Marine  Corps,  was  tried  by  general  court-martial  on  charges 
of  "Desertion"  and  "Fraudulent  enlistment,"  "and  pleaded  not  guilty  to  both 
charges. 

The  judge  advocate  introduced  in  evidence  the  descriptive  list  of  the  accused  fur- 
nished from  headquarters,  U.  S.  Marine  Corps,  on  which  this  entry  appears:  "Deserted 
from  the  Marine  Barracks,  navy  yard,  Mare  Island,  Cal.,  June  13,  1909."  But  this 
even  does  not  appear  to  have  bee'n  read  to  the  court.  Furthermore,  even  had  it  been, 
it  is  remarked  that  this  paper  is  not  such  as  is  considered  proper  documentary  evidence. 
It  is  neither  an  original  enlistment  record  nor  is  it  a  certified  copy  of  one,  but  a  paper 
made  up  from  probably  several  reports,  and  in  no  way  an  original  document,  and 
thus  is  not  competent  evidence,  even  if  unolyected  to.  C.  M.  O.  37, 19C9, 5-6. 

DESCRIPTIVE  ROLL.    SeeC.  M.  0. 141,  1897, 2. 

DESERTERS. 

1.  Appointment—  Of  a  deserter  as  a  commissioned  officer.   See  DESERTION,  41. 

2.  Arrest  of— The  act  of  February  16, 1909,  section  15  (35  Stat.  G22),  provides"that  it  shall 

be  lawful  for  any  civil  officer  having  authority  under  the  laws  of  the  United  States  or 
of  any  State,  Territory,  or  District  to  arrest  offenders,  to  summarily  arrest  a  deserter 
from  the  Navy  or  Marine  Corps  of  the  United  States  and  deliver  him  into  the  custody 
of  the  naval  authorities."  (See  also  act  June  18, 1898,  30  Stat.  484,  with  reference  to 
the  Army.)  [Ste  R-3636  (1)  as  quoted  in  File  27403-132:1,  J.  A.  G.,Nov.6,1916,p.3.] 

A  deserter  from  the  Navy,  who  had  been  arrested  and  placed  in  jail  by  a  deputy 
constable  and  deputy  county  patrolman,  was  released  by  a  Federal  judge  on  habeas 
corpus  proceedings,  on  the  ground  that  there  is  no  authority  in  law  for  the.  arrest  of 
mral  deserters  by  civil  officers  as  there  is  in  the  case  of  deserters  from  the  Army. 
This  action  of  the  Federal  judge  was  brought  to  the  attention  of  the  Department  of 
Justice  for  such  action  as  it  might  deem  appropriate.  File  26516-178,  Sec.  Navy,  June 
29,  1915;  C.  M.  O.  22,  1915,7.  See  also  File  26516-92:  1,  J.  A.  G.,  Sept.  27,  1912; 
26516-38,  J.  A.  G.,  Dec.  3,  1910,  p.  4:  War  Department  Circular  No.  87,  Oct.  23,  1908. 

The  act,  February  16, 1909,  sec.  15  (35  Stat.  622),  authorizes  the  arrest  of  deserters 
from  the  Navy  by  "any  civil  officer  having  authority  under  the  laws  of  the  United 
States,  or  of  any  State,  Territory,  or  District  to  arrest  offenders."  Outside  of  his  juris- 
diction a  eivirofficer  has  no  authority  to  make  arrests  but  becomes  a  mere  private 
citizen,  and  is  not  outside  of  his  jurisdiction  a  civil  officer  within  the  meaning  of  the 
act  of  Congress  above  quoted.  Held,  That  the  authority  of  civil  officers  to  arrest 
deserters  must  be  coextensive  with  their  authority  to  arrest  other  offenders;  that  the 
one  can  not  exist  without  the  other  under  the  terms  of  the  act  of  February  16,  1909, 
sec.  15  (35  Stat.  622).  and  that  when  a  civil  officer  leaves  his  jurisdiction  and  loses  his 
power  to  arrest  offenders  against  the  civil  la\ys  he  at  the  same  time  loses  his  power  to 
arrest  deserters  from  the  naval  service.  File  26516-218,  J.  A.  G.,  Aug.  24, 1916.  See 
also  File  26516-92,  J.  A.  G..  Sept.  27, 1912. 

A  deserter  from  the  naval  service  may  be  legally  arrested  by  (1 )  any  officer  or  duly 
authorized  enlisted  man  in  the  naval  service;  (2)  any  civil  officer  having  general  or 
special  authority  to  arrest  offenders  within  any  given  jurisdiction  (act  Feb.  16,  1909, 
sec.  15, 35  Stat.  622);  (3)  private  detectives  who  are  authorized  to  make  arrests;  (4)  any 
person  who  is  expressly  authorized  by  the  naval  authorities  to  arrest  deserters.  File 
26516-92  and  92:1,  J.  A.  G.,  Sept.  27, 1912. 

The  Navy  Department  "desires  that  detective  work  in  connection  with  the  appre- 
hension and  delivery  of  deserters  from  the  Navy  in  the  United  States  shall  be  confined 
to  recognized  police  officers.  It  is  considered  undignified  and  undesirable  to  encour- 
age or  employ  the  services  of  private  detectives  or  agents  for  such  purposes,  and  the 
practice  will  be  discontinued."  File  24918,  Sec.  Navy,  July  17, 1907. 

In  a  letter  from  the  Department  of  Justice  to  the  Secretary  of  the  Navy,  November 
17, 1906,  it  was  stated:  "  Of  course  the  right  of  military  officers,  whether  of  the  Army 
or  Navy,  to  apprehend  and  return  deserters  is  interwoven  in  the  very  fabric  of  the 
organization  and  administration  both  of  the  Army  and  the  Navy." 

In  the  case  of  In  re  Fair  (100  Fed.  Rep.  149, 152)  the  following  appears:  "A  deserter 
may  be  arrested  by  a  military  officer  or  private  duly  authorized  to  make  the  arrest." 

So  also  in  Hutchings  v.  Van  Bokkellen  (34  Me.  126),  cited  in  Kurtzp.Moffit  (115U.  S. 
504),  it  was  held  that  an  officer  of  the  Army  may  lawfully  arrest  a  deserter  and  hold 
him  for  trial  by  court-martial  without  a  warrant.  File  7657-330,  Sec.  Navy,  Dec. 
29,  1915. 


166  DESERTERS. 

3.  Same— When  a  deserter  is  delivered  to  the  Navy  the  fact  that  the  person  who  arrested 
him  was  not  authorized  to  make  such  an  arrest  is  not  legal  ground  for  his  discharge 
from  naval  custody.  This  is  a  matter  in  which  the  Government  has  no  concern, 
persons  who  assume  to  arrest  deserters  without  legal  authority  therefor  doing  so  at 
their  peril.  File  26516-92  and  92:1,  Sept.  27,  1912. 

4.  Same — Expenses  of  unsuccessful  attempts  to  return.    File  23120-20.    See  also  File 

26516-92:  1,  J.  A.  G.,  Sept.  27  ,1912. 

5.  Same — Arrest  of  deserter  paroled  by  civil  courts.    See  JURISDICTION,  100. 

6.  Same — By  detective  agency.    See  CIVIL  OFFICERS,  2;  DESERTERS,  2. 

7.  Civil  authorities — Authority  to  arrest  deserters.    See  DESERTERS,  2. 

8.  Deserter's  releases.    See  DESERTERS,  21-23. 

9.  Detective  agency— Arresting  deserters.    See  CIVIL  OFFICERS,  2;  DESERTERS,  2. 

10.  Discharge — Where  a  man  has  deserted  and  continued  in  desertion  until  a"  date  sub- 

sequent to  the  expiration  of  his  enlistment ,  the  department  does  not  consider  it  neces- 
sary that  he  be  given  a  discharge  of  any  character,  unless  pursuant  to  sentence  of  court- 
martial,  particularly  as  this  would  entitle  the  man  to  "transportation  in  kind  and 
subsistence  from  the  place  of  his  discharge  to  the  place  of  his  enlistment, "etc.  (R-4442 
(6)),  and  thus  involve  unnecessary  expense  to  the  Government.  File  26516-214, 
Sec.  Navy,  July.  22,  1916. 

11.  Effects  of  deserters — Disposition  of— Where  an  enlisted  man  (ship's  tailor)  bought 

sewing  machines,  etc.,  from  his  predecessor  and  later  deserted,  the  transaction  being 
"an  absolute  sale  on  credit  and  not  a  conditional  sale,"  the  transaction  passed  com- 
plete title  in  said  property  to  the  aforesaid  purchaser.  The  seller's  status  in  the  matter 
is,  therefore,  that  of  a  creditor  of  the  purchaser  to  the  extent  of  the  unpaid  balance  due 
on  the  sale,  but  the  seller  retains  no  legal  title  in  the  property  sold .  It  follows  from  the 
foregoing  that  the  sewing  machines,  etc.;  may  legally  be  disposed  of  in  accordance  with 
1-4721,  the  same  as  any  other  effects  which  belonged  to  the  deserter  (purchaser)  at  the 
time  of  his  desertion. 

The  provisions  of  1-4721  may  be  waived  within  the  discretion  of  the  department  in 
order  tnat  an  opportunity  may  be  afforded  the  seller  to  institute  civil  proceedings  for 
the  purpose  of  securing  judgment  against  the  purchaser  for  the  balance  alleged  to  be 
due,  and  to  enforce  such  judgment  against  the  property  which  was  the  subject  matter 
of  the  sale  by  him  to  the  purchaser,  and  such  action  may  be  taken  upon  the  approval 
of  the  Secretary  of  the  Navy.  File  26516-162,  J.  A.  G.,  Dec.  8, 1914;  C.  M.  O.  6, 1915, 9. 
See  also  File  1317-01,  Sec.  Navy,  Mar.  27,  1901. 

12.  Same — The  offense  of  desertion  per  se  entails  the  loss  of  all  pay  due  at  the  time  of 

desertion,  and  sale  of  effects  of  the  deserter,  but  when  a  man  is  not  found  guilty  of 
desertion,  or  guilty  of  absence  without  leave,  he  should  make  claim  to  the  Auditor  for 
the  proceeds  of  the  sale  of  his  effects.  File  4020-97. 

13.  Enlistment  of— Never  tried  by  court-martial— A  private  served  in  the  Marine  Corps 

over  a  year;  deserted,  and  the  next  day  fraudulently  enlisted  in  the  Army;  received  an 
honorable  discharge  therefrom  and  then,  after  his  enlistment  in  the  Marine  Corps  had 
expired,  presented  himself  for  reenlistment  in  the  Marine  Corps.  Advised,  That  as 
this  man  was  of  mature  age  when  he  deserted  from  the  Marine  Corps,  that  he  had 
been  serving  over  a  year,  that  he  had  fraudulently  enlisted  in  the  Army  the  day  after 
deserting,  and  that  as  he  stated  he  had  no  reason  for  deserting  from  the  Marine  Corps, 
it  would  be  a  bad  precedent  for  the  department  to  condone  the  offenses  committed 
and  reenlist  a  man  who  was  guilty  of  the  serious  offense  of  desertion  and  the  more 
serious  offense  of  fraudulent  enlistment  which  involves  perjury  in  this  case,  par- 
ticularly as  no  extenuating  circumstances  appear,  in  view  of  the  age,  length  of  service, 
and  statement  that  he  had  no  reason  for  deserting  from  the  Marine  Corps.  File  14535- 
1088,  J.  A.  G.,  Nov.  14, 1911.  See  also  DESERTION,  114. 

Section  1420,  R.  S.,  prohibits  the  enlistment  of  deserters  at  large  as  well  as  con- 
victed deserters.  Accordingly  held  that  the  fraudulent  enlistment  of  a  deserter  (prior 
to  Aug.  22. 1912)  from  the  Marine  Corps  who  had  never  been  convicted  of  desertion 
was  void  ao  initio  and  that  he  could  not  legally  be  retained  in  the  service.  However, 
a  pardon  would  remove  the  disability  and  permit  of  his  reenlistment.  File  7657-132, 
J.  A.  G.,  Feb.  17, 1912.  [Hut  see  DESERTERS,  15.] 

14.  Same— 'VVith  respect  to  an  unconvicted  deserter  (who  had  never  been  tried)  enlisting  in 

the  National  Guard,  this  is  a  matter  within  the  jurisdiction  of  the  State  authorities, 
and  the  Navy  Department  is  unable  to  answer  such  question.  File  26282-163:4,  Sec. 
Navy,  Jan.  6, 1916. 


DESERTERS.  167 

15.  Same— Under  the  act,  August  22,  1912,  amending  R.  S.  1420, 1624,  article  19,  the  enlist- 

ment of  persons  who  have  deserted  from  the  naval  service  in  time  of  peace  is  not 
prohibited.  File  26516-214,  Sec.  Navy,  July  22, 1916.  See  also  File  7657-132,  J.  A.  G., 
Feb.  17, 1912. 

16.  Officers — Appointment  of  deserter,  as.    See  DESERTION,  41. 

17.  Pardon — Department's  policy  to  issue  only  after  conviction— A  landsman,  requested 

granting  of  pardon,  he  being  in  status  of  desertion ,  never  having  been  apprehended  or 
surrendered  himself  for  trial  by  court-martial.  Held,  That  while  the  applicant  in  this 
case  might  still  be  tried  for  his  desertion  committed  on  February  4, 1899,  such  a  course 
would  now  be  inexpedient  more  than  10  years  since  the  war  ended;  and  that,  al- 
though a  pardon  might  legally  be  issued,  it  would  be  contrary  to  the  rules  of  the  De- 
partment of  Justice  and  to  the  policy  of  the  department  so  to  do.  File  26282-68, 
J.  A.  G.,  Oct.  6,  1911.  See  aho  File  26282-84,  Mar.  27, 1912. 

An  enlisted  man  was  convicted  of  "desertion  "  in  190?,  served  sentence,  and  in  pur- 
suance thereof  was  dishonorably  discharged.  Thereafter  he  received  a  full  and  uncon- 
ditional pardon.  Held:  By  this  pardon  the  offense  is  obliterated  and  he  is  in  legal 
contemplation  no  longer  a  deserter.  His  disabilities  are  removed  and,  among  them, 
that  relating  to  reenlistrnent  in  the  naval  or  military  service  of  the  United  States.  He 
is  restored  to  his  civil  rights,  and  it  is  quite  within  the  province  of  the  Navy  Depart- 
ment to  permit  his  reenlistment.  (Op.  Atty.  Gen.,  June  16, 190  .)  File  262  2-2. 
IS.  Same-^In  the  case  of  a  deserter  whose  enlistment  has  expired,  but  who  has  not  been 
convicted ,  and  whose  trial  is  barred  by  the  statute  of  limitation  s,  or  is  for  other  reasons 
deemed  inadvisable,  no  penalty  has  been  incurred,  and  accordingly,  there  is  nothing 
upon  which  a  pardon  could  operate,  and  it  would  be  contrary  to  the  department's 
precedents  to  recommend  a  pardon  in  any  such  case.  File  26516-214,  Sec.  Navy, 
July  22, 1916. 

19.  Same — Where  a  man  was  never  tried  by  court-martial  for  his  desertion,  and  the  period 

of  limitation  has  expired,  he  could  derive  no  benefit  from  a  pardon  so  far  as  the  deser- 
tion is  concerned.  His  subsequent  reenlistment,  while  fraudulent,  is  voidable  only, 
and  does  not  require  action  by  the  President  in  order  to  retain  him  in  the  service. 
File  26284-42,  Jan.  13, 1910.  See  also  File  26516-9,  Dec.  1, 1908. 

20.  Same — After  death  of  a  deserter  a  pardon  can  not  be  issued  at  request  of  his  repre- 

sentatives.   File  3846-98,  June  10, 1898.    See  also  PARDONS,  11. 

21.  Releases— A  so-called  "deserter's  release  or  other  equivalent  paper"  should  not  be 

issued  to  deserters  at  large  who  are  not  amenable  to  trial  by  courtrmartial.  The 
practice  of  granting  deserter'sreleases  was  never  required  or  authorized  by  any  law  and 
has  been  discontinued.  There  appears  no  good  reason  why  naval  offenders  whose 
trials  are  barred  by  the  statute  of  limitations  should  be  treated  otherwise  than  is  done 
in  the  cases  of  offenders  in  civil  life.  W  here  the  proper  civil  officer  decides  not  to  bring 
an  offender  to  trial  because  of  the  statute  of  limitations,  there  is  no  practice,  as  far  as 
the  department  is  aware,  of  issuing  to  such  offenders  a  criminal's  release  or  similar 
document,  nor  of  obtaining  for  him  an  executive  pardon.  In  naval  cases  it  should  in 
general  be  ascertained  by  the  proper  administrative  officer,  the  same  as  would  be  done 
by  the  proper  officer  in  civil  life,  whether  or  not  there  is  reasonable  prospect  of  securing 
conviction  before  an  accused  person  is  brought  to  trial,  and  where  it  appears  reasonably 
certain  that  a  prosecution  can  not  successfully  be  maintained  for  any  reason,  either  on 
account  of  the  statute  of  limitations  or  otherwise,  it  should  not  be  instituted,  as  such 
action  would  merely  involve  expense  to  the  Government  without  return.  Nor  would  it 
seem  ordinarily  thata  trialshould  be  had  merely  as  an  accommodation  to  a  self-confessed 
violator  of  the  law,  or  one  whose  guilt  seems  clearly  apparent,  and  who  desires  to  have 
the  matter  disposed  of  without  substantial  punishment:,  but  with  a  view  to  paving  the 
wav  for  ultimate  pardon  or  other  benefit  to  himself.  Accordingly,  in  naval  cases,  as  in 
civil  life,  where  it  is  decided  by  the  proper  officer  not  to  bring  the  accused  to  trial,  this 
should  be  an  end  to  the  matter  in  so  far  as  pertains  to  the  duties  of  such  officer;  and  the 
future  status  or  movements,  or  peace  of  mind  of  the  offender  who  has  thus  escaped  the 
legal  penalty  prescribed  for  his  offense  can  hardly  bo  regarded  as  a  matter  or  official 
concern  to  the  Government.  File  26516-214,  Sec.  Naw,  July  22, 1916. 

Department  in  refusing  to  give  "an  official  order  of  release  from  the  penalty  of  deser- 
tion" stated  that  "this  department  is  not  disposed  to  pive  any  consideration  what- 
ever to  the  case,"  and  the  "practice  of  issuing  the  so-called  'deserter's  release'  has 
been  discontinued."  File  26539-748,  J.  A.  G.,  Oct.  7, 1916. 

The  above  decision  overrules  File  26516-138,  Sec.  Navy,  July  14, 1914. 


168  DESERTERS. 

22.  Same— There  is  no  law  o:  regulation  which  authorizes  the  issuance  of  a  so-called 

"deserter's  release  "  or  equivalent  paper  to  deserters  from  the  Navy  in  any  case.  It 
remains  for  the  court  to  decide  in  every  case  whether  trial  is  effectually  barred.  File 
26516-206,  J.  A.  G.,  Mar.  29, 1915.  See  also  File  26516^7,  J.  A.  G.,  May  18, 1911. 

23.  Same —  Held:  That  a  "deserter's  release  should  not  be  issued  to  a  man  who  deserted '  in 

timeofwar.'"  File 26516-47,  J.  A.  G.,  May  13,  1911.  Seealso  DESERTERS,  21,  22, 
holding  that  the  issuance  of "  deserter's  releases  "  is  discontinued  in  all  cases. 

24.  Restoration  to  duty — Restoration  to  duty  of  a  man  convicted  of  desertion  committed 

prior  to  the  passage  of  the  act  of  August  22,  1912  (37  Stat.,  356),  does  not  have  the 
effect  of  remitting  his  disaoility  resulting  from  conviction  of  desertion.  (See  C.  M.  O. 
27,  1915,  p.  7.)  File  9212-59,  Sec.  Navy,  Aug.  26, 1915;  C.  M.  O.  29,  1915,  6. 

25.  Reward.    See  REWARDS. 

DESERTER'S  RELEASES.    See  DESERTERS,  21-23. 

DESERTION. 

1.  Abandonment  of  naval  service  or  pending  contract— The  intent  of  the  accused 

permanently  to  abandon  naval  service  or  pending  contract  of  enlistment  is  impliedly 
alleged  and  must  be  proved.  C.  M.  O.  10. 1911,  5-7. 

2.  Absence— Of  long  duration  creates  presumption  of  specific  intent  to  desert.    See 

DESERTION,  62-64. 

3.  Same— Duration  or  period  of.    See  ABSENCE,  10,11;  DESERTION,  99. 

4.  Absence  ol  ten  days— Evidence  that  accused  was  granted  liberty  and  failed  at  the 

expiration  thereof,  and  after  a  lapse  of  ten  days  he  was  declared  a  deserter  is  not  suffi- 
cient to  prove  "Desertion."  C.  M.  O.  30, 1910,  6.  See  also  DESERTION,  38. 

5.  Absence  without  leave— Both  "Desertion"  and  "Absence  from  station  and  duty 

without  leave"  should  not  be  charged  for  same  period  of  unauthorized  absence.  C.  M\ 
O.  49,  1910.  15-16;  5,  1914,  7. 

6.  Same— Finding  of  "Absence  from  station  and  duty  without  leave"  on  a  charge  of 

"  Desertion  "  is  an  acquittal  of  the  charge  of  "  Desertion."    C.  M.  O.  17,  1910,  9. 

7.  Same — "Desertion"  includes  the  lesser  offense  of  unauthorized  absence.    C.  M.  O.  38, 

1892;  93,  1893;  96,  1893;  51,  1894,  2;  14,  1S95,  2;  121,  1896,  1-2;  140,  1890;  158,  1897,  2; 
49,  1910,  15-16. 

8.  Same— Accused  charged  with  "  Desertion"  mav  be  found  guilty  of  "Absence  from  sta- 

tion and  duty  without  leave/'  but  the  converse  is  not  true.  S.  C.  M.  Rec.  (1898), 
23209,  May  12  1898. 

9.  Acquittal  of — Is  also  acquittal  of  absence  without  leave,  and  when  approved  entitles 

accused  to  pay  during  period  of  unauthorized  absence.  C.  M.  0. 14, 1914,  4.  See  also 
PAT,  1,2;  C.  M.  0. 17, 1910,  8-10. 

10.  Acts  of  accused — During  unauthorized  absence  may  create  a  presumption  of  specific 

intent  to  desert.    C.  M.  O.  29. 1914,  9;  41, 1914,  3.    Seealso  DESERTION,  62. 

11.  Address — Change  of  address  01  an  absentee  without  notice  to  naval  authorities  may 

lead  to  a  presumption  of  specific  intent  to  desert.    C.  M.  O.  29, 1914,  9. 

12.  Aiding— A  civilian  purchasing  the  clothing  of  an  enlisted  man  of  the  naval  service  for 

the  purpose  of  aiding  that  person  in  an  attempt  to  desert  would  be  liable  to  prose- 
cution for  such  aid  given.  File  20516-49.  J.  A.  G.,  Tune  13, 1911,  p.  9,  quoting  R.  S. 
1553,  5455,  act  of  March  4,  1909  (Criminal  Code,  35  Stat.  1097,  1153);  Kurtz  v.  MofRtt 
(115  U.S.  502). 

13.  "Animus  non  revertendl"— Definition.    See  WORDS  AND  PHRASES;  DESERTION,  24. 

14.  Same — Proof  of  by  documentary  evidence.    See  CERTIFICATES,  3-5;   DESCRIPTIVE 

LISTS,  1,  3,  4;  REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD;  SERVICE  RECORDS. 

15.  Same— The  question  of  animus  non  revertendi  must,  of  necessity,  always  be  a  conclu- 

sion from  certain  facts,  and  is  for  the  court  to  determine  from  all  the  evidence  in  the 
case.  C.  M.  O.  31,  1915,  15. 

16.  Army — Fraudulent  enlistment  as  a  proof  of  "Desertion."    C.  M.  O.  23, 1910,  8. 

17.  Same — Specification  in  proper  cases  should  allege  date  on  which  identified  while  serv- 

ing in  Army.    See  ARMY,  9. 

18.  Arrest  of  deserters.    See  DESERTERS,  2-6. 

19.  Attempting  to  desert— Enlisted  men  charged  with.    See  ATTEMPTING  TO  DESERT,  1. 

20.  Same — Accused  should  not  be  charged  with  both  "Attempting  to  desert"  and  "Ab- 

sence from  station  and  duty  without  leave"  for  same  period  of  unauthorized  absence. 
See  ATTEMPTING  TO  DESERT,  2. 

21.  Cause  of.    See  DESERTION. 


DESERTION.  169 

22.  Charge  of— The  circumstances  under  which  a  man  absented  himself  from  his  station, 

the  condition  of  his  accounts  and  outfit,  and  his  own  statement,  if  he  has  any  to  make, 
are  pertinent  to  the  question  whether  or  not  he  should  be  charged  with  "  Desertion." 
File  6598-97,  Dec.  31, 1897. 

23.  Cltlzenship^Prior  to  the  act  of  August  22, 1912  (37  Stat. ,  356)— A  man  who  forfeited  his 

rights  of  citizenship  by  reason  of  conviction  of  desertion  from  the  naval  service,  can 
have  those  rights  restored  only  by  the  President  or  Congress.  Whether  or  not  a  man 
who  has  deserted  from  the  naval  service  is  "free  from  law  after  a  certain  period," 
depends  upon  the  facts  of  the  particular  case,  and  would  strictly  be  a  question  for 
determination  by  the  court-martial  in  the  event  that  the  offender  should  be  brought 
totrial.  (SeeC.M.  0.27,1913,  p.  13.)  File  26516-183,  J.  A.  G.,  July  29,1915;  C.  M.  O. 
27, 1915,  7.  See  also  File  26507-117,  J.  A.  G.,  Mar.  5, 1913. 

24.  Same — The  following  decisions  of  the  department  indicate  how  serious  the  offense  of 

"Desertion"  was  considered  prior  to  the  enactment  of  the  act,  August  22,  1912  (37 
Stat.,  356): 

"  Convicted  deserters  are  by  law  incapacitated  from  holding  any  office  of  trust  or 
profit  under  the  United  States  or  from  exercising  any  rights  of  citizens  thereof." 
C.  M.  O.  49, 1910, 16;  14,  1910,  7;  26, 1910,  4;  5, 1911,  6;  2, 1912,  3. 

This  statement  is  printed  on  Court-Martial  Orders  prior  to  Court-Martial  Order  No. 
23, 1912,  dated  August  1,  1912.  The  act  of  August  22, 1912  (37  Stat.,  356),  amended 
the  above  provision  of  sections  1996,  1998.  of  the  Revised  Statutes,  so  that  it  should 
not  apply  in  time  of  peace.  (Navy  Regulations,  1913,  R-3644.) 

Accused  convicted  of  "Desertion"  and  among  other  things  sentenced  to  dishon- 
orable discharge.  Convening  authority  approved  the  proceedings,  findings,  and 
sentence,  but  remitted  the  dishonorable  discharge.  The  department  remarked:  "The 
action  of  the  convening  authority  in  remitting  the  dishonorable  discharge  would  have 
the  effect  of  restoring  the  accused  to  duty  upon  the  expiration  of  his  period  of  confine- 
ment, and  is  not  sanctioned  by  law.  Sections  1996  and  1998  of  the  Revised  Statutes,  as 
set  forth  in  article  829  of  the  Navy  Regulations  [Navy  Regulations,  1913,  R-3644], 
provide  that  men  who  have  been  convicted  of  "Desertion"  are  forever  incapable  of 
holding  any  office  of  trust  or  profit  under  the  United  States,  or  of  exercising  any  rights 
of  citizens  thereof,  and  it  is  therefore  illegal  for  a  man  who  has  been  so  convicted  to  be 
reinstated  in  the  naval  sen-ice.-'  C.  M.  O.  49, 1910, 16.  See  also  File  4817-04;  7066-04. 

It  has  been  noticed  by  the  department,  in  reviewing  the  records  of  proceedings  of 
general  courts-martial,  that  the  sentences  adjudged  in  the  cases  of  men  found  guilty  of 
"  Desertion  "  (or  who  have  been  previously  convicted  of  that  offense  and  subsequently 
fraudulently  enlist)  sometimes  do  not  include  dishonorable  discharge  from  the  service. 

Inasmuch  as  conviction  of "  Desertion"  carries  with  it  the  incapacity  for  holding  any 
office  of  trust  or  profit  under  the  United  States,  or  for  exercising  any  rights  of  citizens 
thereof,  it  necessarily  follows  that  such  a  person  can  not  be  retained  in  the  United 
States  naval  service;  the  sentences  of  general  courts-martial  should,  therefore,  in  all 
such  cases  include  dishonorable  discharge  therefrom.  Sees.  1996,  1998,  R.  S.;  Navy. 
Regulations,  1909,  R-829  [Navy  Regulations,  1913,  R-3644]. 

Conviction  of  the  charge  of  "Desertion"  carries  with  it  independently  of  the  punish- 
ment which  may  be  awarded  by  a  naval  court-martial,  certain  legal  consequences, 
such,  for  example,  as  the  forfeiture  of  the  rights  of  citizenship  and  the  incapacity  to 
hold  office  under  the  United  States,  et  cetera,  in  view  of  which  the  department  is  of 
opinion  that  courts-martial  should  be  very  careful  in  finding  an  accused  party  guilty 
of  desertion  unless  the  animus  non  revertendi,  the  intention  permanently  to  abandon 
the  na^al  ssr  ice,  is  shown  beyond  a  reasonable  doubt.  C.  M.  O.  55, 1897,  2.  See  also 
C.  M.  O.  36,  1901,  2;  File  4495-66,  Aug.  30,  1907;  4496-«9,  Aug.  30,  1907. 

The  accused  enlisted  in  the  U.  S.  Army  on  November  2\  1S99,  and  was  discharged 
therefrom  with  character  "excellent"  upon  the  expiration  of  that  enlistment;  he 
reenlisted  on  November  21,  1902,  and  on  December  1,  1905,  was  dishonorably  dis- 
charged by  sentence  of  a  general  court-martial.  (The  records  of  the  department  show 
that  he  was  tried  and  convicted  of  desertion.)  He  enlisted  in  the  Marine  Corps  on 
February  13, 1906,  concealing  the  fact  that  he  had  been  dishonorably  discharged  from 
the  Army,  and  though  this  fact  was  later  brought  to  the  knowledge  of  the  officers  of 
that  corps  under  whom  he  was  serving,  no  action  appears  to  have  been  taken,  but  the 
accused  was  permitted  to  serve  out  his  enlistment,  receiving  an  honorable  discharge 
therefrom  on  February  12,  1910, -as  a  first,  sergeant,  with  character  "excellent,"  and 
recommendation  for  a  good-conduct  medal.  He  then  reenlisted  in  the  Army  on 
February  14, 1910,  and  on  March  29, 1910,  was  discharged  "without  honor"  for  fraudu- 
lent enlistment.  He  then  reenli=ted  in  the  Marine  Corps  on  June  14,  1910,  at  which 
time  he  concealed  his  prior  discharge  "without  honor"  from  the  Army. 


170  DESERTION. 

In  view  of  the  fact  that  the  records  of  the  department  show  that  the  accused  was 
duly  tried  and  convicted  of  desertion  and  was  dishonorably  discharged  from  the 
Army  therefor,  which  conviction,  according  to  section  199G,  Revised  Statutes,  prohib- 
its such  a  person  from  "holding  any  oflice  of  trust  or  profit  under  the  United  States," 
the  department  can  not  exercise  such  clemency  as  would  permit  the  retention  of  this 
man  in  the  service,  but  in  consideration  of  the  unanimous  recommendation  of  the 
members  of  the  court  to  clemency  based  upon  the  accused's  previous  service  in  the 
Marine  Corps,  and  the  evidence  as  to  character  given  by  witnesses,  the  confinement, 
with  corresponding  forfeiture  of  pay  and  allowances,  were  remitted,  and  it  was  di- 
rected that  the  accused  be  released  from  arrest  and  discharged  from  the  service  in 
conformity  with  the  remaining  terms  of  his  sentence.  C.  M.  O.  26, 1910,  4. 

An  accused  was  tried  by  general  court-martial  (fleet  case),  found  guilty  of  "Deser- 
tion" and  the  proceedings,  findings,  and  sentence  were  approved  by  the  convening 
authority  who,  in  view  of  the  unanimous  recommendation  of  the  members  of  the 
court  to  clemency,  reduced  the  period  of  confinement,  with  corresponding  loss  of  pay, 
to  six  months  and  remitted  the  dishonorable  discharge. 

The  action  of  the  convening  authority  in  this  case  in  approving  the  finding  and 
remitting  the  dishonorable  discharge  should  not  be  confused  with  that  of  a  convening 
authority  in  withholding  action  on  a  desertion  case,  and  restoring  the  accused  to  duty. 
In  the  latter  case,  there  being  no  approval,  of  the  finding  of  the  court  by  the  convening 
authority,  the  proceedings  are  not  complete  and  the  accused  js  not  treated  as  a  con- 
victed deserter.  [Kurtz  v.  Moflitt  (115  U.  S.,  487),  citing  with  approval  Winthrop's 
Dig.  1880,  p.  225;  U.  S.  v.  Kelly,  82  U.  S.,  34;  20  A.  and  E.  Encv.,  2d  ed.,  656;  In  re 
Esmond,  5  Mackey  (D.  C.),  64;  19  Op.  A.  G.  107;  Winthrop's  Mil.  Law,  etc.,  663.) 

As,  in  view  of  the  statutes  above  referred  to,  it  would  be  illegal  for  a  convicted 
deserter  to  be  reinstated  in  the  service,  except  by  Executive  pardon,  the  department 
approved  the  proceedings,  findings,  and  sentence  of  the  court  and  the  action  of  the 
convening  authority  thereon,  except  as  to  remitting  the  dishonorable  discharge;  dis- 
approved the  action  of  the  convening  authority  in  remitting  the  dishonorable  dis- 
charge, and  directed  that  the  accused  be  discharged  at  the  expiration  of  his  period  of 
confinement,  as  mitigated,  "by  reason  of  his  conviction  as  a  deserter."  C.  M.  O. 
5,  1911, 6. 

25.  Same— Section  1998  of  the  Revised  Statutes,  as  amended  by  act  Aug.  22,  1912  (37 

Stat.  356),  provides  "that  the  loss  of  rights  of  citizenship  heretofore  imposed  by  law 
upon  deserters  from  the  military  or  naval  service  may  be  mitigated  or  remitted  by  the 
President  where  the  offense  was  committed  in  time  of  peace  and  where  the  exercise  of 
such  clemency  will  not  be  prejudicial  to  the  public  interests."  File  9212-59,  Sec. 
Navy,  Aug.  26, 1915. 

26.  Same— A  man  who  forfeited  his  rights  of  citizenship  by  reason  of  conviction  of  "  De- 

sertion" from  the  naval  service  can  have  those  rights  restored  only  by  a  presidential 
pardon.  Whether  or  not  a  man  who  has  been  convicted  of  "Desertion"  from  the 
naval  service  is  "free  from  law  after  a  certain  period,"  depends  upon  the  facts  of  the 
particular  case,  and  would  strictly  be  a  question  for  determination  by  the  court-martial 
in  the  event  that  the  offender  should  be  brought  to  trial.  File  26516-183,  J.  A.  G.,  July 
29, 1915;  C.  M.  O.  27, 1915,  7. 

27.  Same— Under  R.  S.  1996, 1998,  convicted  deserters  were  deemed  to  have  voluntarily 

relinquished  and  forfeited  their  rights  of  citizenship,  as  well  as  their  right  to  become 
citizens,  and  were  rendered  forever  incapable  of  holding  an  office  of  trust  or  profit 
under  the  United  States  or  of  exercising  any  rights  of  citizens  thereof.  File  5460-82, 
J.  A.  G.,  June  3, 1916. 

28.  Citizenship  subsequent  to  act  August  22,  1912  (37  Stat.,  356)— Persons  who 

desert  from  the  military  or  naval  service  in  time  of  war  are  deemed  to  have  voluntarily 
relinquished  and  forfeited  their  rights  of  citizenship,  as  well  as  their  right  to  become 
citizens;  and  such  deserters  shall  be  forever  incapable  of  exercising  any  rights  of 
citizenship.  (Sections  1996  and  1998.  Rev.  Stat. ,  as  amended  by  act  of  Aug.  22, 1912  37 
Stat.,  356.) 

29.  Same — Under  the  law  sections  1996  and  1998,  Revised  Statutes,  as  amended  by  act  of 

Aug.  22,  1912  (37  Stat.  356);  Navy  Regulations.  1913,  R-3644),  as  it  now  exists, 
persons  who  are  convicted  of "  Desertion"  from  the  naval  service  in  time  of  peace  do 
not  forfeit  their  rights  of  citizenship  as  was  formerly  the  case.  Fowever,  persons 
convicted  of  "Desertion"  in  time  of  war,  and  those  who  have  already  forfeited  their 
rights  of  citizenship  under  the  previous  laws,  can  nothave  their  rights  restored  without 
being  pardoned  by  the  President.  File  26516-182,  J.  A.  G.,  July  28, 1915;  C.  M.  O.  27, 
1915,  7.  See  also  DESERTION,  135. 


DESERTION.  171 

30.  Civil  authorities— Arrest  by,  as  a  defense  tj  "Desertion."    See  ABSENCE  FROM  STA- 

TION AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  3,  4. 
Arrest  of  deserters,  by  civil  authorities.    See  DESERTERS,  2-6. 

31.  Civilians— Enticing,  procuring,  or  attempting  or  endeavoring  to  entice  or  procure 

enlisted  men  to  desert.    See  DESERTION,  12. 

32.  Civil  War  cases— After  April  19, 1865.    See  MARK  OF  DESERTION. 

33.  Clothing — Condition  of,  as  described  in  "Reporjt  of  Deserter  Received  on  Board." 

See  REPORTS  OF  DESERTER  RECEIVED  ON  BOARD,  4. 

34.  Same — Statement  of  disposal  of,  in  Service  Records.    See  SERVICE  RECORDS,  10, 16. 

35.  Continuing  offense — "Desertion  "  is  a  continuing  offense.    C.  M.  O.  31, 1910,  5;  File 

5256-04. 

36.  Conviction  of  desertion— Effect  on  citizenship  rights.    See  DESERTION,  23-29. 

37.  Definition — "Desertion"  is  unauthorized  absence  with  specific  intent  permanently  to 

abandon  naval  service  or  cancel  pending  contract  of  enlistment.  C.  M.  O.  49, 1910,  9; 
23, 1910,  7;  41. 1914,  7. 

38.  Same — "Desertion,"  as  defined  in  R-3632(4)  is  for  purpose  of  entry  on  record,  not  for 

guidance  of  courts-martial.  The  specification  under  a  charge  of  "Desertion"  alleged 
in  part  that  the  accused,  having  been  granted  liberty  by  proper  authority  at  Hong- 
kong, China,  well  knowing  that  his  ship  was  on  the  eve  of  sailing  for  Manila,  Philip- 
pine Islands,  did  fail  to  return  upon  the  expiration  of  his  liberty,  and  that  he  surren- 
dered himself  on  board  another  ship  at  Hongkong,  China,  on  the  same  day,  after  his 
ship  had  sailed. 

The  closing  argument  of  the  judge  advocate  showed  that  he  misconstrued  Article 
R-3632(4'i  and  it  is  quite  probable  that  a  misunderstanding  of  the  true  meaning  of  this 
articje  caused  the  charge  of  desertion  to  be  preferred  against  the  accused  in  this  case. 
The  judge  advocate  argued  as  follows:  "  The  attention  of  the  court  is  invited  to  para- 
graph R-3632,  subparagraph  (4),  U.  S.  Navy  Regulations  and  Naval  Instructions, 
1913,  which  reads  as  follows:  '  If  a  person  deserts  his  ship  which  is  about  to  sail,  or 
overstays  his  leave  until  after  the  snip  sails,  with  manifest  intention  of  escaping  his 
duty,  and  delivers  himself  on  board  another  ship  as  a  straggler,  such  offen-e  shall  be 
considered  as  desertion.' "  Article  R-3632(4)  must  be  read  in  conjunction  with  Article 
R-3633,  and  it  will  then  readily  be  seen  that  the  facts  as  stated  above  do  not  of  them- 
selves constitute  desertion.  Article  R-3633  reads  as  follows:  "The  provisions  of  the 
foregoing  article  are  intended  for  guidance  in  making  the  proper  entries  on  the  re-ords 
when  men  absent  themselves,  but  not  for  the  guidance  of  courts-martial  in  judicially 
determining  whether  a  man  is  gniltii  of  deserrion."  C.  M.  O.  4,  1906,  1;  25,  1914,  4.  See 
aim  File  8332-98;  1170-01;  DESERTION,  4. 

39.  Same — The  word  "Desertion"  is  susceptible  of  two  meanings;  that  given  in  the  naval 

and  military  service,  meaning  the  unauthorized  absenting  himself  of  a  person  in  the 
service  with  an  animus  non  revertendi;  and  that  of  ordinary  usage,  defined  as  the  act 
of  abandoning  or  forsaking.  C.  M.  O.  49, 1910,  8. 

40.  Dishonorable  discharge.    See  DISHONORABLE  DISCHARGE. 

41.  Disabilities  of  convicted  deserters,  removal  of — The  disabilities  imposed  upon  con- 

victed deserters  by  sections  1996  and  1998  of  the  Revised  Statutes  may  be  removed 
by  Executive  pardon  (26  Op.  Atty.  Gen.  617).  The  form  which  such  pardon  may  as- 
sume is  not  at  all  important  (27  Op.  Atty.  Gen.  178).  It  has  repeatedly  been  decided 
that  the  promotion  of  an  officer  under  charges  or  serving  sentence  is  a  constructive 
pardon.  (See  6  Op.  Atty.  Gen.  123;  4  Op.  Atty.  Gen.  8, 124;  8  Op.  Atty.  Gen.  237.) 
By  a  liberal  construction  it  has  been  held  by  the  department  that  the  appointment 
of  a  perso  n  ~by  the  President,  with  th  e  advice  and  consent  of  the  Senate,  as  a  commis- 
sioned officer  in  the  Navy  (chief  pay  clerk),  which  appointment  was  mide  with  knowl- 
edge disclosed  by  department's  records  that  he  was  a  convicted  deserter  (prior  to  act 
of  August  22,  1912),  similarly  operated  as  a  constructive  pardon.  This  latter  case  is 
to  be  distinguished  from  one  in  which  an  officer  deliberately  conceals  the  disabilities 
rendering  him  ineligible  for  appointment.  File  5460-82,  J.  A.  G.,  June  3, 1916. 

Restoration  to  duty  of  a  man  convicted  of  desertion  committed  prior  to  the  passage 
of  the  act  of  August  22, 1912  (37  Stat.,  3.i6),  does  not  have  the  effect  of  remitting  his 
disability  resulting  from  conviction  of  desertion.  (See  C.  M.  O.  27, 1915,  p.  7.)  File 
9212-59,  Sec.  Navy,  Aug.  26, 1915;  C.  M.  O.  29,  1915,  6. 

42.  Disappearance  of  officers.    See  DESERTION,  89-91. 

43.  Documentary  evidence— In  proving  "  Desertion."    C.  M.  0. 110,  1896, 3;  49, 1915, 14- 

15.  See  also  CERTIFICATES,  3-5;  DESCRIPTIVE  LISTS,  1,  3,  4;  REPORTS  OF  DESERTERS 
RBCEIVED  ON  BOARD;  SERVICE  RECORDS. 

44.  Drunkenness— As  a  defense.    See  DRUNKENNESS,  29. 


172  DESERTION. 

45.  Duration — Or  period  of  absence.    See  ABSENCE,  10,  11;  ABSENCE  FROM  STATION  AND 

DUTY  WITHOUT  LEAVE,  29;  CHARGES  AND  SPECIFICATIONS,  92;  DESERTION,  99 

46.  Effects  of  deserters — Disposition  of.    See  DESERTERS,  11, 12. 

47.  Enlistment  record— Use  of,  as  evidence.    See  SERVICE  RECORDS. 

48.  "Enticing  others  to  desert"  —Is  an  offense.    G.  C.  M.  Rec.  23280;  File  26251-6552. 

49.  Same— Chargeable  under  "Conduct  to  the  prejudice  of  good  order  and  discipline." 

C.  M.  O.  49, 1914,  2.  overruling  C.  M.  O.  2, 1908,  2. 

50.  Escape  and  absence— As  proving  intent.    C.  M.  O.  61, 1894,  2.    See  also  ESCAPE,  2. 

51.  Fraudulent  enlistment— As  a  proof  of "  Desertion. "    C.  M.  6. 37, 1909,  5-7;   23, 1910, 

8;  28, 1910, 8-9.    See  also  C.  M.  O.  22, 1904, 2;  FRAUDULENT  ENLISTMENT,  37,38. 

52.  Finding?  "Guilty  but  without  criminality" — A  finding  of  the  specification  "  proved 

but  without  criminality"  is  inappropriate,  as  the  specific  intent  permanently  to 
abandon  the  service  or  pending  contract  ol  enlistment  is  impliedly  alleged  and  must 
be  proved.  C.  M.  0. 10, 1911,  5-7.  See  also  C.  M.  0. 11, 1905,  2;  FINDINGS,  69. 

Eliminations  in  finding  so  as  not  to  support  charg?  of  "  Desertion."    C.  M.  O.  2S, 
1904,  3. 

53.  Foreign  countries — Apprehension  of  a  man  who  deserted  from  a  naval  vessel  while 

in  a  Japanese  port.    File  27403-132. 

54.  Gravamen — Of  the  offense — The  essence  of  the  offense  of  "Desertion"  is  the  intention 

of  the  accused  permanently  to  abandon  the  naval  service.  C.  M.  O.  20,  1899,  1.  See 
aZsoC.  M.  0.31,1915, 15. 

55.  "Guilty  in  less  degree  than  charged"— Court  should  reject  this  plea.    See  GUILTY 

IN  A  LESS  DEGREE  THAN  CHARGED,  9-11. 

56.  1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

57.  Influencing  others  to  desert — Is  an  offense.    G.  C.  M.  Rec.  23280. 

58.  Intent — The  specific  intent  as  well  as  unauthorized  absence  must  be  proved.    See 

DESERTION,  65. 

59.  Same— If  the  accused  at  any  time  during  his  unauthorized  absence  had  the  intent  per- 

manently to  abandon  the  naval  service  or  to  cancel  pending  contract  of  enlistment, 
that  is  all  that  is  necessary  to  establish  his  guilt,  and  it  is  immaterial  whether  the 
intention  was  formed  at  the  time  of  leaving  the  ship  or  station  or  at  a  subsequent  date. 
(C.  M.  0. 30, 1910.  p.  10;  5, 1912.  p.  4).  C.  M.  0. 29, 1914, 9.  See  also  DESERTION.  72. 

60.  Same— Escape  and  unauthorized  absence  as  affecting  the  specific  intent.    C.  M.  0.  61, 

1894,2.    See  also  ESCAPE,  2. 

61.  Same— File  26251-4200,  Sec.  Navy,  Jan.  25, 1911. 

62-  Same — The  specific  intent  may  be  inferred,  and  generally  must  be,  from  the  acts  of  the 
accused — circumstances  and  duration  of  unauthorized  absence,  or  fact  he  was  appre- 
hended and  forcibly  returned,  or  other  circumstances  of  the  case.  C.  M.  0. 42, 1909, 5; 
28, 1910,  6;  30, 1910, 10;  14, 1913,  3,  4;  16, 1913,  3,  5;  22, 1913,  3-4;  29, 1914, 9;  41, 1914,  3. 

63.  Same— Long  period  of  absence  raises  a  presumption  of  specific  intent  permanently  to 

abandon  the  naval  service,  which  presumption  can  only  be  dispelled  by  a  reasonable 
explanation  thereof.  C.  M.  0. 39, 1901, 2;  29, 1914, 9;  76, 1901.  Seealso  DESERTION,  67. 

64.  Same — The  specific  intent  is  to  be  inferred  from  the  accused's  acts  and  not  from  what 

he  may  state  on  the  witness  stand.    C.  M.  O.  42, 1909,  5. 

65.  Same — latent  permanently  to  abandon  the  naval  service  or  terminate  pending  con- 

tract of  enlistment  must  be  proved  as  well  as  the  unauthorized  absence.  C.  M.  O.  93, 
1893;  96, 1893;  51, 1894,  2;  14, 1895,  2;  121, 1896, 1-2;  140, 1896;  55, 1897,  2;  158,  1897,  2; 
38, 1892. 

66.  Same— In  a  case  where  the  accused  was  found  "guilty"  of  "desertion,"  the  depart- 

ment stated  in  part:  "  Owing  to  the  insufficiency  of  the  evidence  adduced  at  the  trial 
to  establish  an  intent  to  abandon  the  service,  the  proceedings,  finding,  and  sentence" 
are  disapproved.  C.  M.  0. 126, 1902;  166, 1902. 

67.  Same — "Duration  of  the  absence"  of  accused  is  especially  material,  but  time  of  absence 

alone  is  not  conclusive  proof  of  such  intent.  C.  M.  O.  158, 1897, 1.  See  also  DESER- 
TION, 63. 

68.  Same— The  record  in  the  case  contained  no  direct  evidence  showing  the  intent  essen- 

tial to  the  offense  of  desertion.  The  circumstances  attending  the  offense,  however,  as 
developed  on  the  record,  were  such  as  to  establish  that  intent,  by  necessary  implica- 
tion, beyond  a  reasonable  doubt.  The  accused  left  a  liberty  party,  while  on  shore  at 
Nagasaki,  Japan,  and  made  his  way  to  the  United  States,  surrendering  himself  finally 
at  San  Francisco.  If  he  had  not  intended  to  abandon  the  naval  service  he  could,  under 
ordinary  circumstances,  have  surrendered  himself  on  board  some  United  States 
vessel  on  the  Asiatic  Station.  His  coming  home  was  in  itself,  being  unexplained,  an 
incriminating  circumstance. 

The  period  of  absence  in  his  case  was  about  eleven  months.    Such  a  long  absence 
remaining  unexplained  necessarily  tends  to  establish  the  intention  to  desert. 


DESERTION.  173 

The  terms  of  the  statement  offered  by  the  accused  were  guarded,  and  contained  no 
explanation  whatsoever  of  his  long  absence,  or  of  the  occasion  of  his  return  to  the 
United  States. 

While  the  greatest  care  is  always  necessary  in  dealing  with  a  charge  of  "  Desertion" 
supported  only  by  circumstantial  evidence,  the  present  case  appeared  to  be  one  in 
which  a  number  of  separate  facts,  none  of  which  would  necessarily  be  conclusive 
when  considered  alone,  unite  in  relieving  the  case  from  uncertainty,  and  taken  together 
established  the  offense  as  charged.  C.  M.  O.  76, 1901, 1. 

69.  Same — The  department  stated  that  in  order  to  establish  the  commission  of  the  specific 

offense  of  "  Desertion,"  both  the  fact  of  unauthorized  absence  and  the  intent  perma- 
nently to  abandon  the  service  must  be  proved.  Also:  "It  is  presumed  that  the  judge 
advocate  introduced  all  the  evidence  which  was  available  in  order  to  establish  the 
intent  of  the  accused  permanently  to  abandon  the  service.  The  fact  of  his '  having 
left  the  ship  without  permission,  the  duration  of  his  absence,  and  his  reporting  in 
civilian's  clothes  furnish  presumptive  evidence  of  such  intent,  but  this  presumptive 
evidence  is  negatived  by  the  testimony  of  the  accused  himself  in  which  he  denies 
that  he  at  any  time  intended  to  desert,  by  the  fact  that  he  placed  himself  in  communi- 
cation with  the  Bureau  of  Navigation  during  his  absence,  and  that  he  voluntarily 
delivered  himself  up. 

"  From  a  careful  consideration  of  the  entire  evidence  in  the  case,"  "the  department 
is  of  opinion  that  the  intention  of"  the  accused  "permanently  to  abandon  the  service 
has  not  been  shown  beyond  a  reasonable  doubt,  and  that,  therefore,  the  benefit  of 
such  doubt  should  be  given  to  him."  0.  M.  O.  14, 189^,  *. 

70.  Same — It  appeared  "from  an  examination  of  the  record  of  the  general  court-martial  in 

the  case  of  'the  accused'  that  he  was  granted  five  days'  leave  of  absence"  in  August; 
remained  absent  about  five  months;  "that  he  went  to  Chicago  and  obtained  work  on 
the  lakes  and  railroad,  and  that  he  did  not  communicate  with  the  naval  authorities 
relative  to  his  whereabouts,  which  facts  would  seem  to  establish  the  intent  of  the 
accused  at  the  time  permanently  to  abandon  the  service,  and  would  therefore  sustain 
the  charge  of  'desertion,'  upon  which  he  was  tried.  The  court,  however,  dealt 
' leniently  with  the  case  and'  gave  the  accused  the  benefit  of  the  doubt  and  found 
him  guilty  of  'absence  without  leave.'  "  C.  M.  O.  33, 1901, 1. 

71.  Same — In  order  to  establish  the  commission  of  the  specific  offense  of  "Desertion," 

both  the  fact  of  unauthorized  absence  and  the  intent  permanently  to  abandon  the 
service  or,  at  least,  to  terminate  the  pending  contract  of  enlistment,  must  be  proved. 
(Navy  Regulations,  1913,  R-746. )  C.  M.  O.  49, 1910,  8-9, 11;  23,  1910,  6;  30, 1910, 10; 
10, 1911.  6;  5, 1912,  4;  16, 1913,  5;  22. 1913,  3;  41. 1914,  3. 

72.  Same— The  accused,  charged  with  "  Desertion, "  was  found  guilty  of  "Absence  without 

leave. "  The  court  was  reconvened  to  reconsider,  respectfully  adhered  to  its  original 
finding  and  stated  in  part  that  the  accused  left  liis  ship  while  drunk,  which  precluded 
any  fixed  intent  at  that  time  permanently  to  abandon  the  service.  The  department 
held  that  "it  is  immaterial  whether  the  intent  permanently  to  abandon  the  service 
exists  at  the  time  of  the  leaving  or  at  some  subsequent  date.  The  law  judges  a  man's 
intentions  from  his  actions,  and  the  fact  that"  the  accused,  "although  drunk  at  the 
time  of  leaving,  failed  to  communicate  with  and  remained  absent  from  the  service 
for  a  period  of  nearly  two  months  is  good  presumptive  evidence  as  to  his  intentions  to 
desert."  C.  M.  O.  30, 1910, 10.  See  also  DESERTION, ,59. 

73.  Same — In  reconvening  a  court  to  reconsider  its  finding  the  department  held  in  part: 

"  From  the  testimony  introduced  in  this  case  it  appears  that  thecourt  had  before  it  the 
following  facts:  That  the  accused  deliberately  absented  himself  from  his  station  and 
duty  without  authority:  that  his  unauthorized  absence  covered  a  period  of  more  than 
five  months;  and  that'he  surrendered  ia  civilian  clothing. "  The  "  voluntary  return 
of  a  deserter,  even  within  a  reasonable  time,  does  not  in  itself  rebut  the  presumption 
of  guilt  arising  from  his  previous  act.  In  the  absence  of  a  reasonable  excuse  in  the  case 
of  unauthorized  voluntary  withdrawal  from  the  service,  the  intent  permanently  to 
abandon  it  must  be  inferred,  and  it  would  be  more  reasonable  to  so  infer  than  to 
presume  that  an  unauthorized  voluntary  lengthy  absence  indicated  a  return  at  some 
future  date.  C.  M.  0. 16, 1913, 5. 

74.  Same — The  specification  on  a  charge  of  "Desertion"  alleged  an  absence  of  more  than 

three  years.  The  court  found  the  accused  guilty  of  absence  without  leave.  In  return- 
ing the  record  to  the  court  for  revision  the  department  stated:  "  From  his  own  testi- 
mony it  would  seem  that  the  circumstances  attending  the  movements  of  the  accused 
during  his  unauthorized  absence  indicate  his  purpose  to  separate  permanently  from 
the  service,  which  is  not  overcome  by  the  fact  that,  after  an  unauthorized  absence  of 
more  than  three  years,  he  surrendered  himself. 


174  DESERTION. 

"A  man  who  separates  himself  from  the  service  with  the  intent  to  desert  might, 
subsequently,  find  it  more  desirable,  for  various  reasons,  to  return,  and  the  mere  fact 
that  an  absentee  surrenders  himself  is  not  in  itself  sufficient  evidence  that  he  did  not 
intend  to  desert,  but  it  is  a  fact  to  be  considered  with  all  of  the  evidence  available  in 
the  case. 

"It  does  not  appear  that,  during  more  than  three  years,  the  accused  made  any 
attempt  to  communicate  with  the  naval  authorities;  on  the  contrary  it  does  appear 
that,  although  he  visited  or  traveled  near  to  many  places  where  he  could  have  sur- 
rendered himself,  he  carefully  avoided  the  places  where  he  was  well  known  for  the 
reason  that  he  thought  he  might  get  'caught. '  "  The  C9urt  in  revision  revoked  its 
former  findings  and,  in  lieu  thereof,  found  the  specification  proved  and  the  accused 
guilty  of  the  charge.  C.  M.  0. 16, 1913,  3. 

75.  Same — The  specification  alleged  an  unauthorized  absence  of  about  eight  and  one-half 

months. 

The  accused  left  the  service  at  San  Francisco,  Cal.,  on  June  13, 1912,  and  testified 
that  he  left  after  brooding  over  the  fact  that  he  could  not  make  the  "promotion  which 
I  had  hoped  at  the  timeof  my  enlistment. "  lie  further  testified  as  follows:  "I  realized 
that  I  had  made  a  serious  mistake — in  fact  played  the  fool — and  desired  to  come  back 
and,  if  possible,  secure  reinstatement  in  the  service  in  order  that  I  might  redeem 
myself. " 

"The  foregoing  testimony  appears  to  be  a  tacit  admission  by  the  accused  of  his 
guilt,  and  the  mere  fact  that  he  eventually  surrendered  himself  is  not  in  itself  suffi- 
cient evidence  that  he  did  not  intend  at  some  period  of  his  unauthorized  absence  to 
desert." 

"  The  offenses  of  absence  over  leave  and  absence  without  leave  are  offenses  that  often 
spring  out  of  the  improvidence  and  thoughtlessness  which  were  formerly  considered 
incident  to  the  habits  and  character  of  sailors.  The  accused  in  this  case  testified  that 
the  reason  he  did  not  return  at  the  expiration  of  his  liberty  was  because  he  had  been 
brooding  over  the  fact  that  he  could  not  make  the  promotion  he  had  hoped  for  at  the 
time  of  enlistment.  It  therefore  appears  that  he  left  the  service  because  of  resentment , 
and  his  testimony  in  this  respect  appears  to  be  conclusive  evidence  that  his  unauthor- 
ized absence  was  not  caused  by  thoughtlessness. 

"The  elements  of  desertion  are  unauthorized  absence  and  intent  to  permanently 
abandon  the  service.  The  intent  may  be  inferred,  not  alone  from  the  unauthorized 
absence,  but  from  the  circumstances  of  the  absence  and  the  duration  of  same. 

"  The  accused  admitted  a  reason  for  his  abandonment  of  the  service,  and  by  his  long 
unauthorized  absence,  by  which  he  avoided  serving  nearly,  one-fifth  of  his  total  term 
of  enlistment,  he  showed  a  contempt  for  the  obligation  of  his  sworn  contract  and 
willful  intention  of  avoiding  his  duties.  With  these  circumstances  before  it  the  court 
should  have  required,  to  rebut  the  presumption  of  desertion,  a  plausible  reason, 
thoroughly  corroborated,  for  the  long  absence  of  the  accused." 

In  this  case  the  court  first  found  guilty  of  absence  without  leave,  but  in  revision 
revoked  its  former  finding  and  found  the  accused  guilty  of  the  charge.  C.  M.  O.  22, 
1913, 4-5. 

76.  Same— The  department  in  one  case  stated:  "If,  in  the  opinion  of  the  court,  the  ac- 

cused did  not  at  any  time  during  his  unauthorized  absence  intend  permanently  to 
abandon  the  service,  it  becomes  its  duty  to  find  the  accused  guilty  in  a  less  decree  than 
charged,  guilty  of"  "Absence  from  station  and  duty  after  leave  had  expired;"  or 
"Absence  from  station  and  duty  without  leave."  C.  M.  O.  5, 1912,  4. 

77.  Same— The  general  court-martial  before  which  a  private  United  States  Marine  Corps, 

was  tried  on  the  charges  of  "Desertion"  and  "Fraudulent  enlistment,"  found  the 
specifications  of  the  charges  "  proved,  but  without  criminality,"  and  acquitted  him  of 
said  charges. 

A  finding  of  "proved,  but  without  criminality."  while  not  to  be  encouraged  in  any 
case,  is  particularly  inappropriate  upon  such  a  charge  as  that  of  desertion,  in  which  a 
specific  intent  forms  an  essential  ingredient  of  the  offense  and  must  be  proved.  Upon 
a  charge  like  that  of  absence  without  leave,  where  it  is  not  necessary  to  allege  or  prove 
any  specific  intent,  it  may  very  well  happen  that  all  the  facts  alleged  in  the  specifica- 
tion may  be  found  proved  and  yet  the  accused  be  wholly  free  from  blame,  the  absence, 
for  example,  being  entirely  involuntary  on  his  part.  But  this  does  not  apply  to  the 
case  of  desertion,  in  which  a  specific  intent  to  abandon  the  service  is  impliedly  alleged 
and  must  be  proved. 

There  was  no  conflict  in  the  evidence  as  to  the  facts  in  this  case,  from  which  it 
appeared  that  he  had  been  regularly  enlisted  in  the  United  States  Marine  Corps,  and 


DESERTION.  175 

executed  the  required  oath;  that  he  was  fully  cognizant  of  what  was  occurring,  raising 
his  right  hand  while  the  oath  was  read  to  him,  and  understanding  that  he  "was  sworn 
into  the  Marine  Corps; "  that  when  sent  home  by  the  recruiting  officer  he  was  told  "  to 
come  back  the  next  day,"  and  that  instead  of  returning  he  "  received  an  ofler  of  a  good 
job  and  went  to  work." 

The  allegation  that  the  accused  did  "desert  from  the  marine  recruiting  office"  and 
"from  the  United  States  Marine  Corps,"  involves  an  allegation  of  the  two  elements 
necessary  to  constitute  desertion,  i.  e". ,  (a)  an  absence  without  authority,  and  (6)  an 
intention  to  abandon  the  naval  service;  and  in  finding  the  specification  of  the  first 
charge  (desertion)  proved  the  court  accordingly  found  that  the  accused  was  absent 
from  the  Marine  Corps  without  authority  during  the  period  specified,  with  the  inten- 
tion of  not  returning. 

Upon  the  question  of  criminal  intent,  it  is  stated  in  Clark's  Criminal  Law,  page  50, 
that  "  Intent  does  not  necessarily  involve  intention  to  do  a  criminal  act;  but  intention 
to  do  a  criminal  act  is  ordinarily  sufficient  to  constitute  criminal  intent.  In  other 
words,  where  an  act  is  prohibited  on  pain  of  punishment,  criminal  intent  is  nothing 
more  than  the  intent  to  do  the  act ,  provided  the  wrongdoer  is  a  person  capable  of  enter- 
taining a  criminal  intent,  and  acts  without  justification  or  excuse. " 

Where,  therefore,  as  in  this  case,  it  appears  that  the  accused  "was  fully  conscious  of 
•what  he  was  doing,  in  the  full  possession  of  his  reason,  and  not  acting  ignorantly  or 
by  mistake"  of  fact,  the  general  criminal  intent  necessary  to  conviction  is  clearly 
established.  (File  26251-3252,  J.  A.  G..  April  28,  1910.)  However,  in  the  case  of 
desertion,  a  specific  intent  is  an  essential  ingredient  of  the  pffense.  "  When,  by  the 
common  law  or  by  statute,  a  specific  intent  is  essential  to  a  crime,  the  specific  intent 
must  exist  and  must  be  proved."  (Clark's  Cr.  L.,  p.  51.)  The  intent  necessary  to 
constitute  desertion  is  merely  "the  intention  of  not  returning;"  in  other  words,  "a 
deliberate  purpose  not  to  rejoin  the  military  service,  but  to  abandon  the  same  alto- 
gether, or  at  least  to  terminate  or  dissolve  the  existing  military  status  or  obligation, 
i.  e.,  the  pending  contract  of  enlistment."  (Winth.  Mil.  Law,  p.  985.)  The  accused 
in  this  case  admitted  that  he  had  a  "deliberate  purpose  not  to  rejoin  the  military 
service,  but  to  abandon  the  same  altogether."  His  only  defense  was  that  he  did  not 
consider  that  the  oath  taken  by  him  was  "binding;"  that  he  did  not  think  that  his 
tune  had  started  until  he  "was  sent  away,  got  into  uniform,  and  was  on  duty ; "  and 
"that  he  thought  it  was  like  getting  a  job  somewhere  and  leaving  it  for  a  better  one  if 
it  oflered  itself."  Even  though  these  statements  of  the  accused  be  accepted,  they 
indicate  rather  an.  ignorance  on  his  part  of  the  legal  consequences  of  the  transaction  in 
which  he  had  just  engaged,  and  not  an  ignorance  or  mistake  of  fact.  "  It  is  the  settled 
rule  that  everyone  is  presumed  to  know  the  law,  and  that  ignorance  thereof  furnishes 
no  exemption  from  criminal  responsibility.  This  rule  was  even  applied  in  the  extreme 
case  of  violation  of  a  statute  by  a  person  who  was  at  sea  when  it  was  enacted,  and  when 
he  violated  it,  and  who  could  not  have  learned  of  it.  Even  foreigners  coming  into  a 
country,  and  ignorantly  violating  its  laws,  are  liable,  though  the  act  may  riot  be  a 
crime  in  their  own  country.  Nor  is  positive  belief  that  an  act  is  lawful  an  excuse." 
(Clark's Cr.  L.,p.  80.) 

Certain  exceptions  exist  to  this  principle  which  do  not,  however,  apply  to  this  case. 
The  wisdom  and  necessity  of  the  rule,  which  has  existed  since  the  earnest  days  of  our 
system  of  law,  have  been  too  often  demonstrated  for  a  departure  therefrom  to  be  sanc- 
tioned by  the  department. 

The  department  returned  the  record  of  proceedings  in  this  case  to  the  court  with  the 
direction  that  the  court  reconvene  for  the  purpose  of  reconsidering  its  findings.  C.  M. 
0. 10, 1911, 6-7.  See  also  DESERTION,  110. 

78.  Same— Accused  charged  with  "Desertion"  was  found  guilty  of  absence  without  leave. 
The  department  in  reconvening  the  court  stated  as  follows: 

"By  the  accused's  own  testimony  it  appears  that  he  was  absent  from  May  13, 1909, 
until  October  27. 1909— a  period  of  over  five  months;  that  he  took  passage  to  a  distant 
point;  discarded  his  uniform,  and  procured  plain  clothes;  obtained  employment  while 
absent;  that  he  was  arrested .  and  his  return  to  the  service  forced;  and  that  he  did  not 
communicate  with  the  naval  authorities  during  his  absence. 

"  The  testimony  of  the  accused  as  to  his  intentions  to  return  is  wholly  unsupported 
by  other  corroborative  evidence,  and  should,  according  to  authorities,  under  such 
conditions  not  be  accorded  entire  credit.  (Winthrop's  Military  Law,  2d  ed.,  pp.  544 
and  545,  under  'Testimony  of  the  accused.') 

50756°— 17 12 


176  DESERTION. 

"  The  truthfulness  of  the  most  important  part  of  the  evidence  given  by  him  on  the 
stand  is,  because  of  subsequent  events,  much  to  be  doubted. 

"It  is  but  a  reasonable  supposition  that,  had  he  retained  his  uniform,  as  testified  to, 
and  started  from  home  intending  to  return  to  the  service,  he  would  certainly  have 
brought  it  back  with  him. 

"Again,  a  man's  intentions  are  to  be  inferred  from  his  acts. 

"  There  are  no  means  of  estimating  one's  intentions  by  the  declaration  of  an  inter- 
ested party  in  a  suit,  unless  the  act  done  and  the  means  used  by  the  party  are  such  as 
one  would  naturally  use  in  accomplishing  the  declared  intention;  and  it  does  not 
appear  from  the  evidence  adduced  that  the  accused  ever  used  any  means  to  communi- 
cate with  the  naval  authorities,  or  that  he  ever  performed  one  act  that  might  lead  to  the 
supposition  that  he  ever  intended  to  return  to  the  naval  service. 

"He  was  absent  a  period  of  five  months  and  fourteen  days,  during  which  time  he 
failed  to  communicate  in  any  way  with  the  naval  authorities;  he  took  passage  to  a 
distant  point,  discarded  his  uniform  for  civilian  clothes,  obtained  employment  while 


79.  Intent  to  desert— Public  statement  of  an  intent  to  desert  in  the  presence  of  other 

enlisted  men  is  an  offense.    G.  C.  M.  Rec.  23280. 

80.  Same— A  mere  declaration  made  by  an  enlisted  man  to  another  that  he  intends  to 

desert,  unaccompanied  by  any  actual  attempt  to  desert,  or  an  attempt  to  entice, 
influence  or  procure  another  to  desert,  does  not  constitute  an  offense.  G.  C.  M.  Rec. 
23280. 

81.  Letter  and  Indorsements— From  Bureau  of  Navigation  as  evidence  to  prove  "Deser- 

tion."   See  INDORSEMENTS,  2;  LETTERS,  7. 

82.  Limitation  of  punlshment^-The  increased  limitation  to  punishment  for  "Deser- 

tion," as  set  f9rth  in  G.  O.  No.  77,  October  5,  1908,  is  to  govern  only  in  those  cases 
where  the  original  desertion  occurred  subsequently  to  that  date.  C.  M.  O.47, 1910,10; 
14, 1910,  7;  15, 1910,  7;  17, 1910, 6. 

"If  a  man  left  his  station  and  duty  before  October  5,  1908,  then  one  year  will  be 
considered  as  tho  limit  for  confinement,  if  after  October  5, 1908,  the  increased  limit  will 
appjy."  File  2C>504-29a,  Sec.  Navy,  Nov.  7,  1908. 

Limitation  for  deserters  in  case  of  voluntary  surrender.  C.  M.  O.  23,  1910,  4;  30. 
1910,  8. 

Limitation  for  deserters  (in  case  of  apprehension)  who  have  been  in  service  less  than 
18  months.  C.  M.  O.  19,  1911,  4. 

The  graded  limitation  to  punishment  should  always  be  observed.  C.  M.  O.  2, 
1912,  4. 

See  NAVY  REGULATIONS,  1913,  R-900,  for  the  present  limitation  of  punishment. 
S3.  "Marine  Recruiting  Office"— Desertion  from.    See  DESERTION,  77. 

84.  "  Mark  of  Desertion"    See  MARK  OF  DESERTION. 

85.  Medals  of  Honor— When  forfeited  by  desertion.    See  MEDALS  OF  HONOR,  5. 

86.  Midshipmen— Charged  with.    C.  M.  O.  28, 1905. 

87.  Minor.    See  MINORS, 6. 

88.  Money— Release  may  not  be  secured  through  payment  of— "Desertion,"  being  a 

statutory  offense,  this  department  knows  of  no  way  by  which  persons  guilty  thereof 
may  secure  their  release  by  payment  of  money.  File  26516-180,  J.  A.  G.,  July  27, 
1915. 

89.  Officers— Charged  with.    C.  M.  O.  27,  1887,  13;  74   1897;  File  20251-6278;  26251-7233: 

1;  26283-153:  1,  Sec.  Navy,  Jan.  5, 1911.    See  also  DESERTION,  90,  91. 

90.  Same— If  the  department  should  conclude  that  the  evidence  is  sufficient  to  support  a 

reasonable  inference  of  desertion,  the  officer  may  be  entered  on  the  rolls  as  a  deserte  r 
If  the  department  concludes  that  the  evidence  indicates  death  instead  of  desertion, 
appropriate  notation  to  that  effect  may  be  made  on  the  records  and  his  name  entered 
in  the  Navy  Register  under  the  heading  of "  Deaths,"  with  the  explanation  "  (disap- 
peared)," date,  and  "supposed  to  be  dead."  If  the  department  does  not  wish  to 
decide  upon  the  evidence  in  its  possession,  whether  the  officer  is  dead  or  in  desertion ,  it 
would  be  sufficient  to  enter  upon  the  records  after  his  name  merely  the  word  "disap- 
peared." In  any  event,  a  successor  to  such  officer  could  be  nominated  by  the  Presi- 
dent and  confirmed  by  the  Senate.  There  is  nothing  in  the  law  which  requires  the 
Secretary  of  the  Navy  to  declare  the  officer  a  deserter,  and,  even  should  he  take  such 
action,  the  officer  could  not  legally  be  dropped  from  the  rolls  without  sentence  of 


DESERTION.  177 

court-martial,  unless  he  be  superceded  by  the  appointment  of  a  successor  and  the 
number  of  officers  in  his  grade  thereby  filled.  (.File  26283-153: 1,  J.  A.  G.,  Dec.  16, 
1910.) 

In  accordance  with  the  foregoing  opinion,  the  department  directed,  January  5, 1911. 
that  the  name  of  this  officer  be  entered  on  the  records  of  the  Bureau  of  Navigation  and 
in  the  Navy  Register,  as  "disappeared,"  with  the  following  explanation:  "Absent 
without  authority  since  June  6, 1910.  "Whereabouts  unknown."  and  directed  that  the 
nomination  of  a  successor  be  prepared.  File  26283-153: 1,  Sec.  Navy,  Jan.  5, 1911. 

91.  Same— Declaring  an  officer  a  deserter  from  the  Navy  does  not  separate  him  from  the 

service.  An  officer  nominated  and  confirmed  to  fill  his  position  does,  however. 
Charges  and  specifications  were  preferred  against  an  officer  who  deserted,  at  the  time  of 
desertion,  and  sent  to  a  permanent  general  court-martial  for  trial  where  they  are  at 
present  awaiting  developments.  The  filling  of  his  place  does  not  divest  the  jurisdic- 
tion of  a  naval  court-martial  to  try  him  upon  the  charge  which  had  previously  been 
preferred,  and  if  the  officer  is  at  any  time  apprehended  he  mpr  be  tried  for  desertion. 
When  apprehended  the  officer  should  be  immediately  served  with  a  copy  of  the  charge 
and  specification  against  him,  and  notified  that  he  is  to  be  tried  by_  general  court- 
martial  at  the  navy  yard  where  the  permanent  general  court-martial  is  sitting.  It  is 
desirable  that  he  be  tried  by  this  general  court-martial  and  should  be  transferred  there 
when  apprehended.  The  statute  of  limitations  is  not  involved  in  this  case,  inasmuch 
as  the  charge  and  specification  were  preferred  by  the  department,  and  sent  to  the  gen- 
eral court-martial  in  ample  time  to  assure  his  trial  whenever  he  may  be  apprehended. 
An  officer  who  deserts  should  be  apprehended,  if  possible,  in  order  to  obtain  a  judi- 
cial decision  of  value  upon  the  question  of  naval  jurisdiction  which  would  serve  as 
definite  guide  in  future  cases,  and  as  a  deterrent  to  others  who  might  be  inclined  to 
follow  such  acourse.  File  26251-6278,  J.  A.  G..  Aug.  17, 1915.  See  also  DISMISSAL,  24. 

92.  "Official  records"— As  evidence  in  proving  "Desertion."    C.  M.  O.  28,  1904,  3-4. 

See  also  CERTIFICATES,  3-5;  DESCRIPTIVE  LISTS,  1,  3,  4;  OFFICIAL  RECORDS,  1;  RE- 
PORTS OF  DESERTERS  RECEIVED  ON  BOARD;  SERVICE  RECORDS. 

93.  Pardon.    See  DESERTERS,  17-20;  DESERTION,  41;  PARDONS,  2, 11,  37,  40, 52,  54. 

94.  Pay— Sentence  approved  under  1-4893  and  G.  O.  110.    C.  M.  O.  6,  1915,  15.    See  also 

NAVAL  INSTRUCTIONS,  1913, 1-4893. 

95.  Same— If  accused  is  acquitted  of  desertion  and  such  acquittal  is  approved,  he  is  entitled 

to  pay  during  period  of  unauthorized  absence.  C.  M.  0. 14, 1914,4.    See  also  PAY.  1,2. 

96.  Same — Forfeiture  of  pay  and  allowances  by  desertion  follows  from  the  conditions  of 

the  contract  of  enlistment,  which  is  for  faithful  service  and  does  not,  therefore,  extend 
to  benefits  earned  under  prior  enlistments  unless  so  provided  by  law.  File  26291-23, 
Sec.  Navy,  Nov.  13, 1909. 

97.  Paymaster— Charged  with.    C.  M.  O.  27, 1887, 13. 

98.  Paymaster's  clerk— Charged  with.    G.  O.  143JOct.  28,  1869;  C.  M.  O.  27,  1887,  13; 

39, 1905, 1;  26, 1912;  File  26251-7233:1. 

99.  Period  of  unauthorized  absence — The  following  specification  was  held  to  be  valid 

by  the  department:  "  In  this,  that  on  or  about  the  fourteenth  day  of  October,  eighteen 

hundred  and  eighty-eight,  the  said alias ,  a  private  in  the  United 

States  Marine  Corps,  did,  while  attached  to  and  serving  as  such  at  the  marine  barracks, 
navy  yard,  Brooklyn,  New  York,  desert  from  the  said  barracks  and  from  the  United 
States  Marine  Corps. "  C.  M.  0. 89, 1890.  See  alsoC.M.  0. 22, 1915, 4:  ABSENCE,  10, 11. 
ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

The  following  specification  under  a  charge  of  "Desertion"  was  approved:  "In  that 
he,  the  said  *  *  *,  did  on  or  about  the  2d  of  July,  1821,  desert  from  the  U.  S.  S. 
Peacock  while  lying  at  Washington."  This  trial  took  place  on  board  the  U.  S.  frigate 
Ouerriere.  G.  C.  M.  Rec.  384. 

100.  Plea  of  guilty  In  a  less  degree  than  charged — Save  in  exceptional  cases,  a  court- 

martial  should  try  the  accused  for  the  offense  as  charged,  ana  a  court  very  properly 
disregards  the  advice  of  the  judge  advocate  recommending  the  acceptance  of  an  ac- 
cused's plea  of  guilty  in  a  less  degree  than  charged.  C.  M.  O.  29,  1914,  6-7.  See  also 
JUDGE  ADVOCATE,  123, 124;  GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  11. 

101.  Plea,  Irregular— Accused  was  charged  with  "  Desertion. "    To  the  specification  of  the 

charge  and  the  charge  the  accused  in  the  first  instance  pleaded  "guilty  in  a  less  degree 
than  charged,  guilty  of  absence  without  leave."  The  court  having  decided  not  to 
accept  this  plea  it  was  subsequently  modified  so  far  as  related  to  the  charge,  to  that  of 
"not  guilty,  but  guilty  of  absence  without  leave. "  This  action  was  proper,  but  the 
accused  should,  further,  haveexcepted  from  his  plea  such  words  in  the  specification 
as  characterize  the  offense  of  desertion,  substituting  where  necessary  "words  de- 
scribing the  oflense  actually  committed. "  C.  M.  0. 10, 1S97, 3. 


178  DESERTION. 

102.  Prlma  facie  case — Defined — When  the  prosecution  proves  the  unauthorized  absence 

and  the  facts  of  apprehension  and  delivery  of  the  accused,  this.is  all  that  is  required 
to  sustain  the  charge  of "  Desertion"  in  the  absence  of  evidence  to  the  contrary.  Or 
if  the  absence  is  of  such  duration  or  there  are  such  other  circumstances  as  to  j  ustify  an 
inference  that  the  accused  intended  permanently  to  abandon  the  service  or  terminate 
his  pending  contract  of  enlistment,  this  is  sufficient  even  though  he  may  have  sur- 
rendered. In  all  these  instances  the  evidence  for  the  prosecution  constitutes  a  prima 
facie  case  of  guilt.  C.  M.  0.41.1914,3. 

103.  Same— Prima  facie  case  established,  the  burden  shifts  to  the  accused.    C.  M.  O.  30, 

1910, 10:  10, 1912, 8;  16. 1913, 5;  41, 1914, 3.    See  also  SERVICE  RECORDS,  16. 

104.  Same — When  conclusive— Where  a  prima  facie  case  of  "Desertion"  has  been  estab- 

lished, if  no  defense  is  offered  by  the  accused,  or  his  defense  is  not  sufficient  to  rebut 
the  evidence  of  the  prosecution  and  the  natural  inference  to  be  drawn  therefrom,  the 
prima  facie  case  established  by  the  prosecution  becomes  conclusive  and  the  accused 
should  be  found  guilty  of  "  Desertion. "  (C.  M.  O.  30, 1910, 10;  10, 1912, 8;  14,  1913,  4; 
16, 1913, 5;  34, 1913, 7;  29, 1914, 8.)  C.  M.  0. 41, 1914, 4.  See  also  SERVICE  RECORDS,  16. 

105.  Prima  facie  evidence.   SeeC.  M.  0. 31, 1915, 14-16.    See  also  SERVICE  RECORDS,  16. 

106.  Procuring  another  to  desert— Is  an  offense.    G.  C.  M.  Rec.  23280. 

107.  Proof  of— In  order  to  establish  the  commission  of  the  specific  offense  of  "Desertion," 

both  the  fact  of  unauthorized  absence  and  the  specific  intent  permanently  to  abandon 
the  naval  service  or,  at  le,ast,  to  terminate  the  pending  contract  of  enlistment,  must  be 
proved.  C.  M.  O.  49, 1910,  8-9;  10,  1911,  6;  16, 1913,  5;  22, 1913,  3;  41, 1914,  3. 

108.  Same— Intent.    See  DESERTION,  58-78. 

109.  Same— By  documentary  evidence.   See  CERTIFICATES  3-5;  DESCRIPTIVE  LISTS,  1, 3, 4. 

OFFICIAL   RECORDS;   REPORTS  .OF    DESERTERS  RECEIVED  ON  BOARD;  SERVICE 
RECORDS. 

110.  Same — Where  it  appears  that  a  recruit,  after  having  been  duly  enlisted  and  executed 

the  required  oath,  was  sent  home  with  instructions  to  return  the  next  day,  but  instead 
of  returning  he  "received  an  offer  of  a  good  job  and  went  to  work,"  and  subse- 
quently enlisted  in  the  Marine  Corps,  concealing  his  previous  eilistment,  it  was  held 
that,  as  a  matter  of  law,  the  accused  was  guiltv  both  of "  Desertion"  and  "  Fraudulent 
enlistment."  The  testimony  of  the  accused  that  he  did  not  understand  he  was  bound 
until  he  had  been  put  in  uniform  and  ordered  to  duty  indicate  an  ignorance  of  law  and 
not  of  fact.  Such  statements  may  be  made  the  basis  of  a  recommendation  to  clemency , 
but  do  not  constitute  a  legal  defense,  as  ignorance  of  the  law  furnishes  no  exemption 
from  criminal  responsibility.  File  26251-4200,  Sec.  Navy,  Jan.  25, 1911;  DESERTION,  77. 

111.  Same — A  fireman,  second  class,  U.  S.  Navy,  was  tried  before  a  general  court-martial 

on  the  charge  of "  Desertion"  and  found.not  guilty. 

The  prosecution  introduced  evidence  to  prove  that  the  accused  received  leave  of 
absence  while  his  ship,  the  U.  S.  S.  Arkansas,  was  at  Newport,  R.  I.,  for  forty-eight 
hours  which  expired  August  11,  1913,  and  that  the  accused  failed  to  return  at  the 
expiration  of  this  liberty  and  remained  absent  without  leave  until  he  was  returned 
on  board  the  receiving  shipatNew  York  by  the  civil  authorities  on  February  11, 1914, 
after  an  unauthorized  absence  of  six  months. 

The  prosecution  thus  made  out  a  clear  prima  facie  case  of "  Desertion  "  against  the 
accused,  and  it  is  established  that  a  prima  facie  case  is  conclusive  in  the  absence  of 
evidence  satisfactorily  rebutting  same.  (C.  M.  0. 10,  1912, 8;  16, 1913,  5;  34. 1913,  7.) 

The  accused  testified  that  be  was  too  sick  to  return  to  his  ship  when  his  leave 
expired ;  that  his  doctor  seat  a  telegram  to  his  commanding  officer  so  stating,  and  that 
thereafter  he  attempted  to  report  on  the  U.  S.  S.  Washington,  at  the  navy  yard,  New 
York,  N.  Y.,  and  was  told  to  go  to  the  Naval  Hospital,  New  York,  which  he  did;  that 
the  medical  officer  at  the  hospital  stated  he  was  not  in  need  of  treatment  and  that  he 
returned  to  the  U.  S.  S.  Washington,  but  was  not  taken  up;  and  that  about  September 
8, 1913,  tiring  of  attempting  to  report  without  success  he  left  the  navy  yard,  discarded 
his  uniform,  obtained  employment,  and  remained  away  until  arrested  by  the  civil 
authorities  in  civilian  clothing,  and  returned  to  the  Navy  as  a  prisoner  on  February 
11,1914. 

His  story  was  corroborated  by  a  letter  received  by  him  from  the  commanding 
officer  of  the  U.  S.  S.  Arkansas,  and  an  indorsement  thereon  by  the  medical  officer  of 
the  hospital,  which  were  introduced  in  evidence,  and  by  one  witness  who  testified  that 
the  accused  was  at  the  navy  yard,  New  York,  N.  Y.,  and  on  board  the  U.  S.  S. 
Washington  at  the  time  claimed  by  him. 

In  addition,  the  sister  of  the  accused  testified  that  he  told  her  "he  had  reported  and 
they  said  they  didn't  know  what  to  do  with  him."  This  latter  testimony  was  objec- 
tionable, not  only  as  being  clearly  hearsay,  but  also  as  falling  under  the  rule  exclud- 
ing self-serving  declarations.  (12'Cyc.  426.) 


DESERTION.  179 

Even  if  the  court  was  convinced  that  the  absence  of  the  accused  was  excusable  and 
satisfactorily  explained  up  to  the  time  he  left  the  navy  yard,  about  September  8. 1913, 
after  making  his  two  unsuccessful  efforts  to  report,  nevertheless  there  are  still  five 
months  of  unauthorized  and  unexplained  absence,  aggravated  by  other  acts.  The 
accused  on  the  stand  stated  that  he  made  no  efforts  during  this  period  to  communicate 
with  the  naval  authorities,  and  that  he  changed  his  address  without  notifying  them, 
thatafterhavhigtwiceunsuccessfullyattemptedtorervortontheU.  S.  8.  Washington, 
he  left  the  navy_  yard  without  permission  from  anyone  in  authority,  laid  aside  his  uni- 
form, and  obtained  employment;  that  for  five  months  he  made  no  attempt  to  return 
to  his  ship  despite  the  fact  that  the  ship  was  at  the  navy  yard.  New  York,  for  a  greater 
portion  01  the  period  he  was  absent  without  authority;  and  he  does  not  claim  that  he 
ever  replied  to  his  commanding  officer's  letter. 

If  the  accused  at  any  time  during  his  unauthorized  absence  had  the  intent  perma- 
nently to  abandon  the  service,  that  was  all  that  was  necessary  to  establish  his  guilt, 
and  it  is  immaterial  whether  the  intention  was  formed  at  the  time  of  leaving  the  ship 
or  at  a  subsequent  date.  (C.  M.  0.30,1910,10.)  The  law  judges  a  man's  intention  by 
his  actions,  and  the  fact  that  the  accused,  even  admitting  that  he  made  a  bona  fide 
attempt  to  rejoin  the  naval  service  prior  to  September  8, 191 3,  thereafter  failed  to  com- 
municate with,  and  remained  absent  from,  the  service  without  authority  for  five 
months,  changing  his  address  without  notice  during  thai*  period,  and  finally  being 
arrested  and  returned  by  thecivil  authorities,  is  sufficient  evidence  of  his  intention  to 
desert.  All  the  actions  of  the  accused  during  this  period  clearly  indicate  that  he 
intended  to  remain  permanently  absent  and  that  he  never  would  have  returned  if  he 
had  not  been  apprehended  and  Drought  back  by  the  civil  authorities. 

An  intent  to  desert  is  inferred  from  the  circumstances  and  duration  of  unauthorized 
absence  (C.  M.  O.  22,  1913,  3),  and  the  court  in  this  case  should  have  found  the  ac- 
cused guilty  of  "  Desertion"  as  charged. 

While,  as  thus  stated,  the  department  considers  that  the  court  should  have  found 
the  accused  guilty  of  "  Desertion,"  certainly  he  was,  beyond  cavil,  guilty  of  absence 
over  leave,  yet  the  court  even  acquitted  him  of  this  offense. 

The  department  disapproved  the  findings  and  acquittal.    C.  M.  O.  29, 1914,  8-10. 

112.  Record— Complete  records  are  necessary  in  desertion  cases.    C.  M.  O.  2, 1912, 4. 

113.  Records  of  post—"  Desertion"  proved  by.    C.  M.  0. 37, 1909, 4.    See  also  EVIDENCE, 

DOCUMENTARY,  19. 

114.  Fteeiiiistniem  ot  deserters— Sections  1420,  1996,  1998,  and  1624,  as  amended  by 

act  of  August  22, 1912  (37  Stat.  356),  permits  the  Secretary  of  the  Navy  to  enlist  in 
naval  service  men  who  have  deserted  from  military  or  naval  service  in  time  of  peace, 
irrespective  of  a  pardon  restoring  the  rights  of  citizenship  heretofore  forfeited  by  reason 
of  desertion  in  time  of  peace,  since  it  only  prohibits  the  enlistment  of  men  who  have 
deserted  in  time  of  war. 

Therefore  the  law  as  it  now  exists  authorizes  the  reenlistment  of  men  who  have 
deserted  the  military  or  naval  service  of  the  United  States  in  time  of  peace  in  the  dis- 
cretion of  the  department,  without  issuance  by  the  President  of  an  executive  j>ardon 
restoring  the  rights  of  citizenship  to  such  men,  and,  since  the  question  of  enlistment 
comes  within  the  province  of  the  Bureau  of  Navigation,  the  request  of  a  man  for 
reenlistment  under  these  conditions  is  subject  to  the  action  of  that  bureau.  File  26507- 
102,  J.  A.  G.,  Oct.  12,  1912.  See  also  File  14535-1088,  J.  A.  O.,  Nov.  4,  1911;  DE- 
SERTERS, 13. 

It  is  "contrary  to  the  practice  of  the  War  Department  to  grant  permission  to  reenlist 
in  the  cases  of  persons  who  have  forfeited  their  rights  of  citizenship  by  reason  of  their 
conviction  by  a  general  court-martial  of  desertion  until  aftei  the  rights  thus  forfeited 
have  been  restored."  File  262S2-241,  Sec.  Navy,  Nov.  9, 1915. 

115.  Reports  of  Deserters  Received  on  Board.    See  REPORTS  OF  DESERTERS  RECEIVED 

ON  BOARD. 

116.  Restoration  to  duty— F.ffect  of.    See  DESERTERS,  24. 

117.  Retention  In  service  prior  to  act  of  August  22, 1913  (37  Stat.  356)— Where  the 

members  of  a  general  court-martial  recommended  an  accused,  who  deserted  prior  to 
August  22, 1912,  to  the  clemency  of  the  revising  power,  the  department  stated  in  part:. 
In  view  of  the  fact  that  the  records  of  th  e  department  show  that  the  accused  was  duly- 
tried  and  convicted  of "  Desertion"  and  was  dishonorably  discharged  from  the  Army 
therefor,  which  conviction  according  to  section  19P6,  Revised  Statutes  prohibits  such 
a  person  from  "holding  any  office  of  trust  or  profit  under  the  United  States."  the 
department  can  not  exercise  such  clemency  as  would  permit  the  retention  of  this  man 
in  the  service,  but  in  consideration  of  the  unanimous  recommendation  of  the  members 
of  the  court  to  clemency  based  upon  the  accused's  previous  service  in  the  MarineCorps, 


180  DESERTION. 

and  the  evidence  as  to  character  given  by  witnesses,  the  confinement,  with  correspond- 
ing forfeiture  of  pay  and  allowances,  were  remitted ,  and  it  was  directed  that  the  accused 
be  released  from  arrest  and  discharged  from  the  service  in  conformity  with  the  remain- 
ing terms  of  his  sentence.  C.  M.  O.  26, 1910, 5.  See  also  DESERTION,  24. 

118.  Rewards.    See  REWARDS. 

119.  Sentence — Should  include  dishonorable  discharge.  See  DISHONORABLE  DISCHARGED. 

On  May  30, 1821,  the  following  sentence  was  adjudged  by  a  general  court-martial  on 
"desertion":  "To  be  punished  with  twenty-five  lashes  with  the  Cat  o'  Nine  Tails  on 
his  bare  back  at  such  and  place  as  may  be  ordered."  G.  C.  M.  Rec.  378. 

Also  this  sentence  on  July  19,  1821:  "Receive  fifty  lashes  at  the  gangway  of  the 
Peacock,"  etc.  G.  C.  M.  Rec.  3. 3. 

120.  Service  record.    See  SERVICE  RECORDS. 

121.  Ship,  desertion  from — A  charge  alleging  the  " Desertion  from  a  ship  about  to  sail 

on  an  extended  cruise, "  is  insufficient  as  it  is  essential  that  the  charge  allege  desertion 
from  the  United  States  naval  service.  C.  M.  O.  49, 1910, 8-9. 

122.  Specific  Intent.    See  DESERTION,  58-78. 

123.  Statement  of  accused  to  commanding  officer — A  statement  of  an  accused, 

charged  with  "Desertion ,"  made  by  him  before  hiscommanding  officer  when  his  offense 
is  being  investigated  at  the  mast,  is  uniformly  admitted  in  evidence  when  he  is  tried 
for  the  offense.  C.  M.  O.43, 1906, 2.  See  also  CONFESSIONS,  9,  24;  DESERTION,  125. 

124.  Same — The  commanding  officer  of  an  accused  charged  with  "Desertion,"  was  the 

only  witness  for  the  prosecution  and  testified  as  follows: 

"The  accused  was  brought  into  my  office  on  the  twenty-seventh  day  of  September 
last  by  a  detective,  charged  with  having  deserted  from  the  Marine  Corps  in  August. 
nineteen  hundred  and_  one;  he  was  in  Army  uniform,  infantry,  and  stated  or  admitted 
that  he  had  enlisted  in  the  Army,  in  Philadelphia,  four  or  five  days  before,  I  think 
September  second.  He  admitted  desertion  from  the  Marine  Corps,  and  stated  in  effect 
that  he  had  been  afraid  to  return  on  account  of  the  penalty. " 

The  specification  supporting  the  charge  preferred  against  the  accused  alleges  that, 
while  serving  at  the  League  Island  Barracks  he  deserted  therefrom,  and  from  the 
Marine  Corps,  on  or  about  August  19, 1901,  and  continued  in  desertion  until  he  was 
apprehended  by  the  civil  authorities,  and  delivered  at  said  barracks  on  September 
27,1902. 

No  further  testimony  or  evidence  of  any  kind  was  introduced  by  either  the  prosecu- 
tion or  the  defense,  and  the  accused  had  no  statement  to  make  before  the  court. 

The  court,  after  deliberating  upon  the  evidence  adduced,  found  the  specification  of 
the  charge  "proved  "  and  that  the  accused  was  of  the  charge  "guilty, "  and  sentenced 
him  to  the  punishment  usually  awarded  in  such  cases,  viz,  confinement  for  one  year, 
with  the  customary  penalties  and  forfeitures,  and  dishonorable  discharge  at  the  expi- 
ration of  said  period. 

While  it  is  true  that  the  testimony  of  the  commanding  officer  above  quoted  shows 
that  the  accused  was  delivered  to  him  by  the  civil  authorities  "charged  with  having 
deserted  from  the  Marine  Corps  in  August,  nineteen  hundred  and  one, "  and  that  the 
accused  "  admitted  desertion  from  the  Marine  Corps, "  it  nowhere  appears  in  said  tes- 
timony when  or  from  what  station  this  man  deserted.  It  would  seem  that  these 
facts  might  have  been  established  by  further  questioning  of  the  witness,  supplemented 
if  necessary,  by  other  evidence  usually  obtainable  in  such  cases. 

The  finding  of  "proved"  without  qualification  is  clearly  not  justified  by  the  evi- 
dence before  the  court;  and  although  the  accused  was  shown  to  have  admitted  that 
he  did  desert  from  the  Marine  Corps,  the  terms  of  such  admission  as  testified  to  by  the 
commanding  officer  are  too  general  and  indefinite  to  establish  the  particular  offense 
described  in  the  specification,  for  the  commission  of  which  this  man  was  brought  to 
trial. 

The  proceedings,  finding,  and  sentence  in  the  foregoing  case  were  disapproved.  C. 
M.  O.  212, 1902. 

125.  Statement  by  third  party  in  presence  of  accused— Where  a  witness  testifies 

"the  police  officer  stated  that  the  accused  gave  himself  up,"  and  it  is  proved  that  such 
statement  was  made  in  the  presence  of  the  accused,  it  is  admissible  in  evidence  not 
being  hearsay.    C.  M.  O.  214, 1902.    See  also  CONFESSIONS  24;  DESERTION  123. 
126   Statute  of  limitations— Defense  of.    See  STATUTE  OF  LIMITATIONS. 

127.  Statutory  offense — Desertion  is  a  statutory  offense. 

128.  Surrender — As  rebutting  the  inference  of  specific  intent  to  desert.    C.  M.  0. 16, 1913, 

5;  34, 1913,  7.    See  also  DESERTION,  68,  69,  73,  74, 102. 


DESERTION.  181 

129.  Same— The  dishonorable  discharge  included  in  the  sentence  of  an  accused  convicted  of 

"  Desertion"  was  remitted  by  the  department  in  view  of  the  fact  that  he  voluntarily 
surrendered  himself.  C.  M.  O.  49, 1892. 

130.  Same-;-It  is  not  trae  that  thevoluntary  surrender  of  anabsentee  is  sufficient  in  itself  to 

make  it  impossible  to  prove  "  Desertion;"  for  although  the  fact  that  a  person  surren- 
ders himself  as  a  deserter  after  but  brief  absence  may  properly  be  regarded  as  an  ex- 
tenuating circumstance,  such  fact  is  not  conclusive  as  against "  Desertion."  C.  M.  O. 
20, 1899, 1.  SeealsoC.  M.  O.  6, 1894;  MARK  OF  DESERTION,  2. 

131.  Uniform,  discarding— As  an  inference  of  specific  intent  to  desert.    C.  M.  O.  42, 1909. 

5;  47, 1910, 9.    Seealso  DESERTION,  73, 78,  111. 

132.  War— Desertion  in  time  of  war — An  accused  was  found  guilty,  by  plea,  of  "  Desertion 

in  Time  of  War  "  and  subsequent  fraudulent  enlistment.  The  offense  was  charged  as 
desertion  in  time  of  war  because  such  was  the  fact,  and  for  the  further  reason  that 
otherwise  the  case  would  have  fallen  within  the  provisions  of  the  statute  of  limitations 
(Article  62  of  the  Articles  for  the  Government  of  the  Navy).  The  punishment  award- 
ed, imprisonment  ' '  for  a  period  of  ten  (10)  years  at  hard  labor,"  with  corresponding  pen- 
alties and  forfeitures,  is  severe;  but  inasmuch  as  the  offense  was  committed  in  time  of 
war,  a  much  graver  penalty,  even  that  of  death,  might  have  been  imposed,  and  the 
court  has  by  such  sentence,  therefore,  not  exceeded  its  powers.  It  appears,  however, 
that,  while  technically  desertion  in  time  of  war,  the  offense  was  committed  at  the  navy 
yard,  New  York,  and  accordingly  it  was  not  a  case  of  desertion  in  the  face  of  the 
enemy. 

The  sentence  was  approved ,  but  in  view  of  the  fact  that,  while  the  accused  deserted 
in  time  of  war  and  thus  became  subject  to  the  extreme  penalties,  he  actually  deserted 
from  a  vessel  at  the  navy  yard,  New  York,  under  circumstances  which  warrant  the 
department  in  mitigating  the  punishment  imposed  by  the  court,  the  same  was 
mitigated.  C.  M.  0. 185, 1902, 1-2  See  also  DESERTION,  28,  29. 

133.  Same — Desertion  after  the  conclusion  of  the  protocol  with  Spain  of  August  12, 1898, 

but  prior  to  the  signing  of  the  treaty  of  peace  or  ratification  thereof  is  "  Desertion  in 
Time  of  War."  The  date  of  the  signing  of  the  treaty  is  the  earliest  on  which  the  War 
with  Spain  may  be  considered  as  to  have  terminated.  File  14535-719.  Sec.  Navy, 
May  24.1909.  See  also  TREATY  OF  PEACE  WITH  SPAIN,  2. 

134.  Same— Desertion  after  December  10,  1898,  was  not  "Desertion  in  Time  of  War." 

The  treaty  of  peace  signed  December  10, 1898,  while  not  ratified  until  April  11, 1899, 
was  effective  from  date  of  signing  as  far  as  exercise  of  sovereign  powers  was  concerned. 
File  6642-03,  Sept.  1, 1903.  Seealso  File  8693-01,  Nov.  23, 1901 ;  6652,  Jan.  24, 1907. 

135.  Same-^-Persons  convicted  of  "  Desertion"  in  time  of  war  can  not  have  their  citizen- 

ship rights  restored  except  by  pardon.    See  DESERTION,  29. 

136.  Same— Penalty  of  death.    See  CHARGES  AND  SPECIFICATIONS,  47;  DESERTION,  132, 137. 

137.  Same-^"  Desertion  in  time  of  war"  is  one  of  the  most  serious  offenses  which  can  be 

committed  by  a  person  in  the  naval  service.  It  involves  a  total  disregard  by  the 
offender  of  his  sworn  contract  of  enlistment,  and  has  in  all  times  and  countries  aroused 
the  indignation  and  animadversion  of  patriotic  citizens,  and  which  in  the  United 
States  Navy  may  be  tried  bv  general  court-martial  and  punished  by  death  and  is  not 
protected  by  the  statute  of  limitations.  File  19974-5,  Sec.  Navy,  Nov.  17, 1915.  See 
also  WAR,  22. 

138.  Warrant  officers— Charged  with.    C.  M.  0. 15, 1903;  94, 1906;  96, 1906;  80, 1907;  17, 

1911.    See  also  File  28478-37,  September,  1916. 

DESIGNATIONS. 

1.  Officers — All  official  communications  intended  for  officers  holding  positions  with  recog- 
nized titles  shall  be  addressed  to  them  by  title  and  not  by  name,  as  "The  Secretary  of 
the  Navy,"  "Bureau  of  Navigation,"  " The  Commandant,"  "The  Commander  in 
Chief, Fleet  (or  Squadron),"  "The  Commander. Squadron  (or  Divi- 
sion)," "The  Commanding  Officer,"  "Major  General  Commandant."  (1-5322(2).) 
File  9160-5990,  Sec.  Navy,  Nov.  15, 1915.  See  also  OFFICIAL  COMMUNICATIONS. 

DESIGNATION  OF  ACCUSED. 

1.  Arraignment — Should  include  name  and  designation  of  accused.    C.  M.  O.  49, 1910,  4. 

2.  Sentence — Must  include  name  and  designation  of  accused.    C.  M.  O.  37,  1909,  3;  42, 

1909,  6;  55, 1910,  8;  30, 1910,  7;  1, 1913,  5;  20, 1913,  3;  42,  1914,  4;  14,  1915,  2;  38,  1916. 

3.  Same— Forms  of  sentence  published  in  conrt-martial  orders  indicate  that  sentence 

should  include.  C.  M.  O.  42,  1909,  3;  55,  1910,  7;  14,  1910,  7;  15,  1910,  8;  29,  1914,  7; 
42,  1914,  5. 

4.  Same— Name  and  designation  of  accused  in  sentence  must  be  in  handwriting  of  judge 

advocate.   C.  M.  O.  42, 1914,  4. 


182  DISABILITIES. 

DETECTIVES. 

1.  Arresting  deserters.    See  CIVIL  OFFICERS,  2;  DESERTERS,  2-6. 

2.  Employment— By  Government.  SeeCiviL  OFFICERS,  2;  DESERTERS,  2;  REWARDS,!!, 12. 

3.  Reward — Payment  of  rewards  for  arrest  of  deserters.    See  REWARDS,  11, 12. 

DETENTION  BARRACKS. 

1.  Established.    See  File  26285-64:3,  J.  A.  G.  July  19, 1911. 

DETENT1ONERS. 

1.  Status  of — Detentioners  In  confinement  are  "in  confinement   under  sentence"  of 

court-martial.  They  are  actually  confined  or  under  guard,  and  a}l  time  spent  under 
these  conditions  is  credited  on  the  term  of  confinement  specified  in  the  sentence  and 
action  of  the  convening  authority.  They  have  heen  held  by  the  Comptroller  of  the 
Treasury  to  be  naval  prisoners,  and  entitled  to  the  allowances  on  discharge  provided 
by  law  for  such  prisoners.  [See  178  S.  &  A.  Memo.,  3845.] 

After  a  detentioner  or  naval  prisoner  is  restored  to  duty  on  probation  he  is  not  any 
longer  "in  confinement  under  sentence,"  but  is  on  duty,  receives  full  pay  and  allow- 
ances, and  execution  of  the  sentence  is  specifically  suspended  during  the  probationary 
period.  File  26251-6297:9,  Sec.  Navy,  Dec.  28/1914;  C.  M.  O.  6,  1915,  11.  See  aUo 
File  26287-128,  Mar.  28, 1912. 

2.  Same — Enlisted  men  under  detention  are  undergoing  a  modified  form  of  imprisonment, 

being  deprived  of  their  liberty  in  accordance  with  the  terms  of  general  court-martial 
sentences. 

The  detention  barracks  is  a  "prison,"  and  the  detentioners  are  "prisoners"  within 
the  meaning  of  the  appropriation  "  Pay,  miscellaneous." 

Detentioners  are  restored  to  duty  on  probation  if  their  enlistments  expire  before 
expiration  of  full  term  of  confinement  to  which  sentenced. 

The  uniform  prescribed  for  the  detentioner  is  the  regular  service  uniform,  in  accord- 
ance with  the  spirit  and  purpose  of  the  detention  system.  The  Secretary  of  the  Navy 
may  prescribe  such  uniform  as  he  desires  for  prisoners. 

The  necessary  clothing,  etc. .  for  detentioners  is  paid  for  by  them  from  the  remittance 
of  the  required  amount  therefor,  from  the  forfeiture  of  pay  adjudged  by  the  sentence; 
if  not  sufficient  pay  due,  then  the  appropriation  "  Pay,  miscellaneous"  is  chargeable 
therewith. 

Clothing  furnished  a  detentioner  from  "  Pay,  miscellaneous,"  is  returned  in  the  bar- 
racks for  reissue.  But  the  discharged  detentioner  is  furnished  suitable  civilian  cloth- 
ing- if  discharged  to  duty,  he  is  required  to  obtain  necessary  clothing  and  small  stores 
and  pay  for  it  from  his  pay;  if  his  pay  is  insufficient  therefor,  the  cost  ol  such  overissue 
while  on  probation  should  be  treated  as  authorized  by  Navy  Regulations,  1909,  R-678 
(2)  [Navy  Regulations,  1913, 1-1923(2)]  File  26287-128, -Mar.  28,  1912. 

DICTAPHONE. 

1.  Office  of  Judge  Advocate  General— Use  of,  in.    File  23275-15,  J.  A.  G.,  Feb.  3, 1916. 

DIPLOMATIC  OFFICERS. 

1.  Naval  officers— If  any  officer  of  the  Navy  accepts  or  holds  an  appointment  in  the 

Diplomatic  or  Consular  Service  of  the  Government,  he  will  be  considered  as  having 
resigned  his  place  in  the  Navy,  and  it  shall  be  filled  as  a  vacancy.  (Sec.  1440,  R.  S.) 
(R-1533.)  See  RETIRED  OFFICERS,  26. 

2.  Orders  to  commanding  officers.    See  File  5542-00. 

3.  Retired  naval  officers— By  section  1440  of  the  Revised  Statutes,  officers  of  the  Navy 

are  forbidden  to  hold  office  in  the  Diplomatic  or  Consular  Service,  and  this  includes 
retired  officers  of  the  Navy.  File  12-4,  Nov.  5, 1906,  quoted  in  File  27231-3,  J.  A.  G., 
Nov.  1, 1909.  See  also  RETIRED  OFFICERS,  26. 

4.  Statements  of  a  foreign  ambassador — As  to  the  construction  of  the  laws  of  his  coun- 

try.   See  ATTORNEY  GENERAL,  11. 

DIRECTORY  REGULATIONS.    See  REGULATIONS,  NAVY,  29. 

DIRECTORY  STATUTES.    See  ADVISORY  STATUTES,  1;  STATUTORY  CONSTRUCTION  AND 
INTERPRETATION,  32. 

DISABILITIES. 

1.  Citizenship.    See  DESERTION,  23-29;  DISHONORABLE  DISCHARGE,  5,  6. 

2.  Civil  disabilities— Resulting  from  conviction  of  "Desertion."    C.  M.  O.  36,  1901,  2. 

See  also  DESERTION,  23-29;  DISHONORABLE  DISCHARGE,  5,  6. 

3.  Retirement— For  physical  disability.    See  RETIREMENT  OP  OFFICERS,  40. 


DISCHARGE.  183 

DI S  APPEARANCE . 

1.  Enlisted  men.    See  LINE  or  DUTY  AND  MISCONDUCT  CONSTRUED,  18-21. 

2.  Officers.    See  DESERTION,  89-91. 

DISAPPROVAL. 

1.  Convening  authority  disapproves— No  Sentence  can  be  carried  into  effect  after  dis- 
approval of  convening  authority.  See  CONVZNINJ  A-JTHOKITY,  21;  CRITICISM  or 
COURTS-MARTIAL,  35;  REVIEWING  AUTHORITY,  19;  SECRETARY  OF  THE  NAVY,  25; 
SENTENCES,  35. 

DISBARMENTS. 

I.  Civilian  attorney — Threatened  by  department— ^Claims  of  a  civilian  attorney  against 

certain  officers  for  services  rendered  in  securing  legislation  in  their  behalf.  File 
17789-12  :  1,  J.  A.  G.,  Feb.  25,  1910.  See  also  DEBTS,  18. 

DISBURSING  OFFICERS.    See  also  EMBEZZLEMENT;  PAY  OFFICERS. 

1.  Auditor  for  the  Navy  Department — Authority  of,  to  order  payments  made.    See 

DEATH  GRATUITY,  1. 

2.  Death  Gratuity.    See  DEATH  GRATUITY,  1. 

3.  Designation  of.    See  File  9160-5990,  Sec.  Navy,  Nov.  15, 1915. 

4.  Hospital  Ship.    See  HOSPITAL  SHIPS,  3. 

5.  Liability  of— A  class  of  cases  exists  in  which  disbursing  officers  have,  from  necessity, 

felt  compelled  to  trust  unbonded  clerks  with  Government  funds  notwithstanding  the- 
absence  of  any  law  or  regulation  authorizing  such  action.  Even  in  such  cases  the 
pay  officer  has  been  held  responsible.  (See  C.  M.  O.  6,  1911.)  File  26201-11756:  4, 
Sec.  Navy,  Apr.  24,  1916. 

6.  Negligence  of— Constitutes  embezzlement.    See  EMBEZZLEMENT,  7, 18. 

7.  Repeated  travel.    File  9100-5990,  Sec.  Navy,  Nov.  15,  1915. 

8.  Responsibility  of  regarding  payments— A  disbursing  officer  is  not  responsible  for 

illegal  payments  made  by  him  in  good  faith  and  in  accordance  with  the  certificate 
of  another  officer  as  to  the  facts.  An  appropriation  being  under  the  control  of  the 
head  of  a  department,  it  is  within  the  latter's  power  to  prescribe  rules  to  govern 
the  disbursing  agent  in  making  disbursements  therefrom.  (9  Comp.  Dec.,  545;  see 
also  Smith  v.  U.  S.,  23  Ct.  Cls.,  452;  21  Comp.  Dec.,  314;  Comp.  Dec.  Nov.  21,  1914, 
File  26254-1672;  21  Comp.  Dec.,  357;  File  26254-1451:5,  Oct.  31,  1914;  File  26254- 
1451:11,  Apr.  12  1915;  30  Op.  Atty.  Gen.,  — .) 

9.  Shortage  of  public  funds— Where  a  shortage  of  public  funds  occurs  through  the 

apparent  fault  of  a  disbursing  officer,  he  should  be  brought  to  trial  therefor  by  general 
court-martial  with  a  view  to  having  his  responsibility  established  and  the  Govern- 
ment protected  a?ainst  subsequent  claims  oy  the  officer  for  reimbursement.  File 
26251-11756:4,  Sec/Navy,  Apr.  24, 1916. 

10.  Superior  officer— The  power  to  require  a  disbursing  officer  to  make  a  payment  is  pos- 
sessed only  by  the  officer's  superior.  File  26543-66,  Sept.  8,  1911.  See  also  R.  S.  285; 
Smith  v.  U.  S.,  24  Ct.  Cls.,  215;  10  Comp.  Dec.  635. 

II.  Unbonded  subordinate-yA  disbursing  officer  of  the  United  States  could  not  justify 

his  conduct  in  voluntarily  placing  unlimited  trust  in  an  unbonded  subordinate, 
when  the  safety  of  Government  money  is  concerned,  and  he  is  confessedly  ignorant 
of  the  character  of  that  subordinate's  private  life,  particularly  when  the  subordinate 
was  in  fact  living  a  life  of  dissipation  and  immorality  at  the  very  places  where  he 
was  on  duty  with  the  disbursing  officer.  File  26251-11756:4,  Sec.  Navy,  Apr.  24, 
1916. 

DISCHARGE. 

1.  Bad-conduct  discharge.    See  BAD-CONDUCT  DISCHARGE. 

2.  "Certificate  of  discharge."    See  CIVIL  WAR  SERVICE,  1. 

3.  Character  of — A  discharge,  other  than  dishonorable  or  bad-conduct,  is  not  considered 

as  a  punishment,  and  it  is  objectionable  for  a  naval  court-martial  to  adjudge  a  discharge 
other  than  one  of  the  aforementioned  as  part  of  the  sentence.  C.  M.  O.  30. 1910, 10. 

4.  Citizenship  rights— Desertion.    See  DESERTION,  23-29;  DISHONORABLE  DISCHARGE, 

5,6. 

5.  Same — Offenses  other  than  desertion.    See  DISHONORABLE  DISCHARGES,  5, 6. 

6.  Conditional  discharge.    See  DISCHARGE  OBTAINED  BY  FRAUD. 

7.  Continental  limits  of  United  States— Bad-conduct  discharge  within.    See  BAD- 

CONDUCT  DISCHARGE,  4. 

8.  Convenience  of  enlisted  man— Receives  an  ordinary  discharge.    See  ORDINARY 

DISCHARGES,  1,  2. 


184  DISCHARGE. 

9.  Convict— And  fugitive  from  justice  discharged  as  undesirable.    See  CIVIL  AUTHORITIES, 
12;  CONVICTS.  2;  FUGITIVE  FROM  JUSTICE. 

10.  Debt— Enlisted  men  discharged  in  debt.    See  BAD-CONDUCT  DISCHARGE,  3;  DEBTS, 

7;  PAY,  87. 

11.  "Discharged,"   "Dismissed,"   "Wholly  retired"— Denned  and  compared.    File 

26260-697,  1392.  J.  A.  G.,  June  29,  1911,  p.  26.    See  also  OFFICERS,  38. 
"The  word  'discharged'  is  properly  "limited  in  its  application  to  those  who  have 


12.  Dishonorable  discharge.   See  DISHONORABLE  DISCHARGE. 

13.  Foreign  countries.   See  BAD-CONDUCT  DISCHARGE,  4. 

14.  Fraud— Discharge  obtained  by  fraud.    See  DISCHARGE  OBTAINED  BY  FRAUD. 

15.  Fugitive  from  Justice— And  convict  discharged  as  undesirable.    See  CIVIL  AUTHORI- 

TIES, 12;  CONVICTS,  2;  FUGITIVE  FROM  JUSTICE. 

16.  Honorable  discharge.   See  HONORABLE  DISCHARGE. 

17.  Man— An  enlisted  man  can  not,  by  his  own  act,  discharge  himself.    File  22724-18, 

J.  A.  G.,  Dec.  4, 1911. 

18.  Ordinary  discharge.    See  ORDINARY  DISCHARGES. 

19.  Pay — Discharge  operates  as  remission  of  unexecuted  loss  of  pay  adjudged  by  court- 

martial  sentence.    See  BAD-CONDUCT  DISCHARGE,  3;  DEBT,  7;  PAY,  87. 

20.  Purchase— Discharge  by  purchase.    See  PURCHASE.  DISCHARGE  BY. 

21.  Remission  of  unexecuted  portion  of  loss  of  pay  by  discharge.    See  BAD-CONDUCT 

DISCHARGE,  3;  DEBTS,  7;  PAY,  87;  SET  OFF. 

22.  Request— Discharge  by  request.    See  ORDINARY  DISCHARGES,  2. 

23.  Revocation  of— Discharge  obtained  by  fraud.    See  DISCHARGE  OBTAINED  BY  FRAUD. 

24.  Same — And  substitution  of  another,  after  issuance.    File  1561,  J.  A.  G.,  Apr.  27,  1905; 

7657-214,  J.  A.  G.,  Feb.  17, 1914.    See  also  REVOCATION,  7. 

25.  Same- : Action  on  the  general  court-martial  case  of  an  enlisted  man  was  withheld  pend- 

ing his  incarceration  in  the  Government  Hospital  for  the  Insane.  The  proceedings 
were  subsequently  set  aside  in  view  of  the  recommendation  of  medical  survey,  account 
insanity.  Discharge  ordered  by  department,  and  subsequently  the  discharge  order 
was  revoked  by  the  department.  G.  C.  M.  Rec.  23312. 

26.  Undesirable  discharge.    See  UNDESIRABLE  DISCHARGE. 

27.  "Without  honor."    See  DESERTION  24;  DISCHARGE,  11. 

DISCHARGE  OBTAINED  BY  FRAUD. 

1.  False  confession  of  murder— A  general  court-martial  prisoner  made  a  false  confes- 

sion of  murder.  The  department,  on  the  request  of  the  civil  authorities,  remitted 
the  unexecuted  period  of  confinement  and  dishonorably  discharged  the  man  from 
the  service.  This  man  later  repudiated  his  confession,  and  an  investigation  proved 
that  he  had  lied.  The  civil  authorities  requested  that  the  Navy  Department  resume 
jurisdiction  over  the  man.  The  question  was  referred  to  the  Attorney  General, 
who,  in  an  opinion  rendered  Feb.  8,  1910  (File  26251-2798:8),  held  that  the  discharge 
fraudulently  obtained  might  be  revoked  by  the  department,  that  the  man  was  still 
an  enlisted  man  in  the  Navy,  his  status  not  having  been  changed  by  the  discharge 
issued  to  him  in  the  manner  stated.  File  26251-2798:8.  See  also  Com.  v.  Halloway, 
44  Penna.,  210,  219;  16  Op.  Atty.  Gen.,  349;  28  Op.  Atty.  Gen.,  170;  File  7657-159, 
J.  A.  G.,  Aug.  10,  1912. 

2.  Promise  to  reenlist — Where  an  enlisted  man  extends  his  enlistment,  but  before  such 

extension  takes  effect  he  obtains  a  cancellation  thereof  upon  condition  that  he  would 
reenlist  immediately  upon  discharge  from  his  current  enlistment,  but  fails  to  so  reen- 
list, the  discharge  may  be  canceled  and  the  man  declared  a  deserter.  If  apprehended 
he  may  be  tried  by  court-martial  both  for  "desertion"  and  "conduct  to  the  preju- 
dice of  good  order  and  discipline."  (See  File  7657-159.)  The  canceling  of  the  ex- 
tension of  enlistment  in  this  case  was  conditional,  the  condition  being  express,  and 
the  failure  to  comply  therewith  operated  to  restore  his  former  status  as  fully  as  though 
the  extension  of  his  enlistment  nad  never  been  canceled  and  the  discharge  issued. 
>  C.  M.  O.  6,  1915,  9-10.  See  also  File  7657-159,  J.  A.  G.,  Aug.  10,  1912;  7657-324;  7657- 
174;  26251-11394,  Sec.  Navy,  Jan.  11, 1916;  G.  C.  M.  Rec.  31501;  28  Op.  Atty.  Gen., 
170. 

3.  Revocation  of.   See  DISCHARGE  OBTAINED  BY  FRAUD,  1,  2. 


DISCIPLINE.  185 

DISCIPLINE. 

1.  Adversely  affected.    C.  M.  O.  25, 1915, 1. 2. 

2.  Definition— In  a  Congressional  committee  report  9f  January  22,  1819.  the  word  "dis- 

cipline" is  repeatedly  used  in  the  sense  of  instruction  and  training,  For  example,  ref- 
erences are  made  to  "discipline  or  military  instruction";  to  "the  adoption  ot  a  sys- 
tem of  military  discipline  for  the  militia,  which  would  produce  the  effect  contemplated 
by  the  first  proposition,"  viz, ' '  that  the  whole  male  population  of  the  United  States  of 
the  proper  age  should  be  trained  to  the  use  of  arms";  to  "discipline  evolutions"; 
to  the  necessity  that  "our  militia  be  instructed";  to  "an  improvement  in  tactics" 
on  the  part  of  the  professed  soldier,  and  the  necessity  that  the  citizen  "perfect  him- 
self in  tne  same  arts  and  discipline  ;  to  the  fact  that  "military  discipline  consists  in 
the  observance  of  a  number  of  minute  particulars,  which  to  the  novitiate  in  arms  have 
no  apparent  object,  but  which  forms  the  links  of  a  beautiful  and  connected  system"; 
to  the  necessity  of  "a  course  of  discipline  during  the  period  of  non-age"  in  order  to 
diffuse  "an  adequate  knowledge  of  the  art  of  war."  File  8124-55,  J.  A.  G.,  Oct.  17, 
1916,  p.  5. 

3.  Same — Defining  the  word  "discipline"  as  used  in  a  certain  statute  a  civil  court  stated: 

"The  word  'discipline'  as  there  used  means  'system  of  drill,'  'systematic  training,' 
'training  19  act  in  accordance  with  established  rules,  accustoming  to  systematic  and 
regular  action.'  See  Webster's  New  International  Dictionary,  and  also  27  Cyc.  496." 
(State  v.  Peake.  22  N.  D.  457,  40  L.  R.  A.  (N.  S.)  354, 135  N.  \V.  197.)  File  8124-55, 
J.  A.  G.,  Oct.  17, 1916.  D.  6. 

4.  Same — "By  the  term  'discipline'  as  used  in  the  Constitution  of  the  United  States, 

article  1,  section  8,  is  meant  'system  of  drill.' "  (27  Cyc.  496. )  File  8124-55,  J.  A.  G., 
Oct.  17, 1916,  p.  6. 

5.  Disappears— "All  discipline  in  the  American  Navy  disappears  where  such  offenses 

[using  abusive  language  toward  his  commanding  officer]  as  the  accused  has  been  found 
guilty  of  are  not  met  with  condign  punishment."  C.  M.  O.  26,  1913. 

6.  Disobedience  of  orders— As  affecting  discipline.    See  DISOBEDIENCE  OF  ORDEKS,  4. 

7.  Disrespect  to  superior  officer— Strikes  at  root  of  military  discipline.    C.  M.  O.  13, 

1915,  2. 

8.  General  court-martial  and  court  of  Inquiry  records  and  questions  of  dis- 

cipline— Referred  to  Bureau  of  Navigation.    See  BUKEAU  OF  NAVIGATION,  7. 

9.  Ignorance  of  military  discipline — Disaster  caused  by.    C.  M.  O.  37,  1915,  9. 

10.  Obedience — It  has  been  repeatedly  recognized  by  the  courts  that  the  first  duty  of  a 
,  military  man  is  obedience  and  that  without  this  there  can  be  neither  discipline  nor 

efficiency.    C.  M.  O.  37,  1915,  7. 

11.  "Pernicious  Influence  upon."    C.  M.  O.  22, 1915, 9. 

12.  Prompt  punishment — Certainty  of  prompt  punishment  is  more  conducive  to  dis- 

cipline than  punishment  deferred  long  after  the  offense.  C.  M.  0.  10,  1915,  6.  See 
also  COURT,  117. 

13.  Respect  and  confldence^-Of  subordinates  in  the  integrity,  ability,  and  responsi- 

bility of  their  superiors  is  the  highest  incentive  to  discipline.    C.  M.  O.  36,  1915,  2 

14.  Severity— Should  not  be  mistaken  for  discipline.    G.  O.  168,  Jan.  6, 1872. 

15.  Ship.    C.  M.  O.  14,  1879,  3. 

16.  Strict— The  discipline  of  the  naval  service  must  be  strict,  the  tribunals  for  its  enforce- 

ment must  be  summary,  and  their  legal  sentences  should  be  carried  into  execution 
without  regard  to  technicalities  which  do  not  affect  the  substantial  rights  of  persons 
or  the  precedents  of  the  service.  G.  O.  162,  Mar.  25, 1871. 

17.  Subversive  of — An  unbecoming  attitude  of  senior  officers  toward  subordinate  officers 

is  subversive  of  good  discipline.  C.  M.  O.  41, 1915, 9-10.  See  also  DISOBEDIENCE  OF 
ORDERS,  4. 

18.  Suffers— Where  guilty  go  unpunished.    C.  M.  O.  49,  1915,  8.    See  also  C.  M.  O.  44, 

1915,  2. 

19.  Summary  court-martial— Because  the  summary  court-martial  sentencing  an  ac- 

cused to  extra  police  duties  was  considered  illegal  by  the  commander  in  chief  and 
set  aside  by  the  Secretary  of  the  Navy  does  not  relieve  the  accused  from  responsi- 
bility when  he  refuses  to  obey  the  order  of  his  superior  officer.  C.  M.  O.  87,  1896. 

20.  "System  of  discipline''— The  naval  appropriation  act  of  August  29,  1916,  provides 

that  the  Naval  Militia  "will  be  subject  to  the  'system  of  discipline'  prescribed  for  the 
United  States  Navy  and  Marine  Corps."  Held:  That  under  this  clause  of  the  statute 
the  laws  and  regulations  of  the  Navy  which  provide  for  the  enforcement  of  discipline 
by  means  of  punishment  do  not  apply  to  the  Naval  Militia.  File  8124-55,  J.  A.  G., 
Oct.  17. 1916,  p.  1.  See  also  SYSTEM  OF  DISCIPLINE;  C.  M.  O.  37.  1916. 

21.  Same— ''Rules  and  Discipline  of  Baron  de  Steuben"— Were  adopted  by  Congress 

March  29, 1779,  made  applicable  to  the  militia  by  act  of  May  8, 1792,  continued  in  force 


186  DISCIPLINE. 

until  the  latter  act  was  repealed  by  Congress  May  12, 1890.  They  did  not  contain  any 
provisions  with  reference  to  punishments,  but  related  merely  to  the  formation,  equip- 
ment, maneuvers,  and  general  training  and  instruction  of  troops.  File  8124-55,  J.  A. 
G.  Oct.  17, 1916,  p.  3 

22.  Undue  leniency— "Undue  leniency  is  as  hurtful  to  the  proper  conduct  of  a  military 

command  as  undue  severity  and  should  be  carefully  avoided."  File  20971-19,  Sec. 
Navy,  Aug.  20,  1909. 

23.  Same— Commissioned  officers  hold  in  "light  estimation  the  discipline  of  the  Navy" 

when  as  members  of  a  naval  court-martial  they  adjudge  a  mild  and  inadequate  sentence 
for  a  very  serious  ollense.  See  ADEQUATE  SENTENCES,  13. 

DISCIPLINARY  BARRACKS.   Sec  DETENTIONERS;  SENTINELS,  13. 
•DISCONTINUANCE.    See  NOLLE  PEOSECUI. 

DISCREDITING  NAVAL,  SERVICE. 

1.  Officer.    C  M.  O.  8, 1909. 

DISCREDITING  UNIFORM. 

1.  Officer.    C.  M.  O.  4\  1909. 

DISCRIMINATION  AGAINST  UNIFORM. 

1.  State  laws — As  a  result  of  representations  made  by  the  department  to  the  officials  of 

the  State  of  Virginia  in  connection  with  various  complaints  of  discrimination  atainst 
enlisted  men  of  the  naval  service  in  public  places  of  amusement  in  the  vicinity  of 
Norfolk,  Va.,  there  has  been  recently  passed  by  the  legislature  of  that  State  an  act, 
which  will  be  effective  after  June  18,  1916,  providing: 

"  (1)  That  it  shall  be  unlawful  for  any  common  carrier,  innkeeper,  or  proprietor  or 
lessee  of  any  place  of  public  amusement  or  entertainment,  or  any  agent,  servant,  or 
representative  of  any  such  common  carrier,  innkeeper,  proprietor  or  lessee  as  afore- 
said, to  debar  from  the  full  and  equal  enjoyment  of  the  accommodations,  advantages, 
facilities  or  privileges  of  any  public  conveyance  on  land  or  water  or  any  inn  or  of  any 
place  of  public  amusement  or  entertain  men  t,  any  person  in  the  Army,  Navy,  Marine 
Corps  or  Revenue-Cutter  Service  of  the  United  States,  or  of  the  National  Guard  or 
naval  service  of  this  State,  or  otherwise  in  the  military  or  naval  service  of  the  United 
States,  or  of  this  State,  wearing  the  uniform  prescribed  for  him  at  that  time  or  place 
by  law,  regulation  of  the  service,  or  custom,  on  account  of  his  wearing  such  uniform 
or  of  his  being  in  such  service. 

"(2)  Any  person  who  is  debarred  from  such  enjoyment  contrary  to  the  provisions 
of  section  1  of  this  act  shall  be  entitled  to  recover  in  an  action  on  the  case  from  any 
corporation,  association  or  person  guilty  of  such  violation,  his  actual  damages  and 
$100  in  addition  thereto;  and  evidence  that  such  person  debarred  was  at  the  time 
sober,  orderly,  and  willing  to  pay  for  such  enjoyment  in  accordance  with  rates  fixed 
therefor  for  civilians,  shall  be  prima  facie  evidence  that  he  was  debarred  on  account 
of  his  wearing  such  uniform  or  of  his  being  in  such  service. 

"(3)  Any  person  violating  any  provision  of  this  act  shall  be  guilty  of  a  misde- 
meanor." 

(See  File  23243-77:5;  see  also  File  23243-50  for  copy  of  laws  of  United  States,  Massa- 
chusetts, New  Hampshire,  Minnesota,  New  Jersey,  New  York,  Pennsylvania,  and 
Rhode  Island  on  this  subject.)  C.  M.  O.  9,  1916,  9. 

In  a  case  which  arose  in  Rhode  Island  and  in  which  the  Navy  was  officially  con- 
cerned a  civil  action  for  damages  was  brought  by  a  chief  petty  officer  against  private 
parties,  and  at  the  request  of  the  Navy  Department  the  Attorney  General  instructed 
the  United  States  attorney  to  assist  in  said  proceedings,  which  grew  out  of  a  discrimina- 
tion against  the  naval  uniform.  (File  5421-3.  See  also  File  7657-330.)  File  20392- 
612,  J.  A.  G..  Aug.  30.  1916.  See  also  File  23243-78,  Sec.  Navy,  Dec.  7,  1915;  5421-6, 
Jan.  22,  1907;  5763;  5012-55,  J.  A.  G.,  July  5,  1915;  23243-79,  July  29,  1916;  5012-63 
(N.  Y.);  21355-33;  2(N.  Y.);  5012-58:1,  Sec.  Navy.  Nov.  3,  1916;  C.  M.  O.  46,  1916. 

2.  Uniformed  enlisted  men— Not  allowed  on  the  dancing  floor.    File  23243-79,  July,  1916. 

3.  "White  list"— Of  reputable  places  willing  to  serve  men  in  uniform  proposed   as   an 

effective  means  of  preventing  discrimination  against  uniform  regardless  of  existing 
or  prospective  statutes.  File  23243-78:3,  J.  A.  G.,  Mar.  18, 1916. 

DISEASES. 

1.  Absence,  unauthorized — Diseases  contracted  during — G.  O.   100,  construed.    See 

GENERAL  ORDER  No.  100,  June  15,  1914;  C.  M.  O.  3, 1917,  6. 

2.  Immoral  habits— Diseases  contracted  by  an  ollicer  in  consequence  of  immoral  habits. 

C.  M.  O.  40,_1889. 


DISHONORABLE    DISCHARGE.  187 

DISGRACE. 

1.  Naval  service— By  officer.    C.  M.  O.  4,  1909:  8,  1909. 

2.  Questions— The  answers  to  which  might  disgrace.    See  SELF-INCKIMINATION,  11, 12. 

DISHONORABLE  DISCHARGE. 

1.  Allowances  of  marines— If  dishonorable  discharge  is  adjudged  in  general  court- 

martial  sentence,  loss  of  allowances  should  be  adjudged.    See  ALLOWANCES,  3. 

2.  Same — Should  be  remitted  if  the  dishonorable  discharge  is  remitted.    See  ALLOW- 

ANCES, 4. 

3.  Amblguous^Since  there  are  several  forms  of  discharge  known  to  the  naval  service, 

courts-martial  should  designate  in  their  sentences  the  character  of  the  discharge 
adjudged.  C.  M.  O.  49, 1910. 14-15.  See  also  DISCHARGE,  3. 

4.  Army— If  a  man  has  been  dishonorably  dircharged  from  the  Army,  he  should  be  dis- 

honorably discharged  from  the  naval  service  when  tried  by  general  court-martial. 
See  ARMY,  10. 

5.  Cltizenshlp-^Dishonorable  discharge  from  the  naval  service  does  not  cause  forfeiture 

of  citizenship  under  any  law  of  the  United  States.  What  effect,  if  any,  such  dis- 
charge may  have  upon  rights  such  as  voting,  under  the  laws  of  the  State  where  the 
man  resides,  is  a  question  within  the  jurisdiction  of  the  local  State  authorities  and 
not  of  the  Navy  Department.  File  9212-37.  Sec.  Navy,  May  19,  1913;  C.  M.  O.  22, 
1915,  6.  See  also  File  9212-65,  Oct.  14, 1915. 

6.  Same — In  proceedings  In  revision  in  a  certain  general  court-martial  case,  the  court 

stated:  "In  this  case  the  sentence  provides  for  dishonorable  discharge,  which  carries 
with  it  the  loss  of  the  rights  of  citizenship."  The  court  appeared  to  have  been  under 
some  misapprehension  as  to  the  Federal  statutes,  which  make  no  reference  to  dis- 
honorable discharge.  C.  M.  O.  2, 1912,  3. 

7.  Deck  courts— Not  to  adjudge.    See  DECK  COURTS,  20. 

8.  Desertion— Where  the  court  did  not  include  dishonorable  discharge  in  the  sentence 

of  a  convicted  deserter,  the  department  stated:  "Inasmuch  as  the  court  has  not 
sentenced  the  accused  to  be  dishonorably  discharged  upon  the  expiration  of  his 
term  of  confinement,  he  will,  upon  his  final  discharge  from  the  service,  so  far  as  his 
punishment  for  desertion  is  concerned,  leave  thfe  naval  service  in  a  status  of  honor, 
it  having  been  held  by  the  Supreme  Court  of  the  United  States  that  the  'honorable 
discharge'  of  a  deserter  was  a  formal  final  judgment  passed  by  the  Government 
upon  the  entire  military  record  of  the  soldier,  and  an  authoritative  declaration  by 
it  that  he  had  left  the  service  in  a  stilus  of  honor."  (U.  S.  v.  Kelly,  15  Wall.,  34.) 
C.  M.  O.  36. 18%;  38, 18%.  See  also  U.  S.  v.  Landers  (92  U.  S.,  77). 

9.  Same— Should  include  dishonorable  discharge.    C.  M.  O.  118,  1894,  2;  116,  1896;  117, 

1896;  36, 1896,  2;  38,  18%,  2;  146,  1900;  126,  1901. 

10.  Same-^Sentence  in  case,  of  desertion  should  include  dishonorable  discharge — Uni- 

formity in  sentences  imposed  by  general  courts-martial  is  obviously  desirable,  and 
the  department  does  not  countenance  a  departure  from  the  general  rule  requiring 
that  the  court  should  adjudge  an  adequate  sentence  in  all  cases.  Especially  in  the 
cue  of  desertion  should  the  sentence  include  a  provision  for  the  discharge  of  the  prisoner. 
In  revision  the  court  revoked  its  former  sentence,  and  in  lieu  thereof  adjudged  a 
sentence  which  included  dishonorable  discharge.  C.  M.  O.  16.  1913.  3-4.  See  also 
C.  M.  O.-5, 1911,  6. 

11.  Same— Where  convening  authority  has  remitted  dishonorable  discharge  from  sentence 

of  a  deserter  the  department  discharged  the  accused  at  expiration  of  confinement 
"by  reason  of  his  conviction  as  a  deserter."  See  DESERTION,  24. 

12.  Same— Convening  authority  should  not  remit  dishonorable  discharge  in  desertion,  as 

such  action  is  against  spirit  of  R-816  (7).  which  states  that  dishonorable  discharge 
should  be  included  in  sentence  adjudged  for  desertion.  C.  M.  O.  5, 1911,  6. 

13.  Same— In  a  case  where  the  accused  was  convicted  of  desertion  and  the  court  did  not 

include  dishonorable  discharge  in  its  sentence,  the  department,  in  consideration  of 
the  recommendation  to  clemency  of  the  members,  permitted  the  accused  to  stay  in 
the  service.  C.  M.  O.  118,  1894,  2.  See  also  C.  M.  O.  122,  1894. 

II.  Fraudulent  enlistment— Where  accused  has  enlistments  in  both  Navy  and  Marine 
Corps,  discharge  in  sentence  should  read  from  "United  States  naval  service."  C.  M. 
O.  29, 1914,  7.  See  also  FRAUDULENT  ENLISTMENT,  83;  G.  O.  110,  p.  5;  Navy  Regu- 
lations, 1913,  R-816,  as  amended. 

lo.  Same — Man  found  guilty  of,  is  not  a  suitable  person  to  be  retained  in  the  naval  service. 
C.  M.  O.  102,  1893,  2. 

16.  General  court-martial — Dishonorable  discharge  can  only  be  adjudged  by  general 
courts-martial.  C.  M.  O.  30, 1914,  4. 


188  DISHONORABLE   DISCHARGE. 

17.  Same — Bad-conduct  and  dishonorable  discharges  are  the  only  discharges  looked  upon 

as  punishments,  and  they  are  the  only  discharges  a  general  court-martial  should 
adjudge.  See  BAD-CONDUCT  DISCHARGE,  7;  DISCHARGE,  3. 

18.  Marines.    See  ALLOWANCES,  1,  3,  4,  8-10;  DISHONORABLE  DISCHARGE,  1-2. 

19.  Remission  of— If  the  convening  authority  remits  the  dishonorable  discharge  in  the 

sentence  of  a  marine,  he  should  also  remit  the  forfeiture  of  allowances  adjudged.  See 
ALLOWANCES,  4. 

20.  Revocation  of— When  sentence  of  dishonorable  discharge  is  executed,  it  can  not  be 

revoked.  (Op.  Atty.  Gen.,  May  28. 1909.  See  also  11  Op.  Atty.  Gen.,  19;  17  Op.  Atty. 
Gen.,  297;  10  Op.  Atty.  Gen.,  64.)  Proceedings  when  approved  and  executed  are  final. 
File  26516-19,  J.  A.  G.,  May  28,  1909.  See  also  REVOCATION,  7. 

DISLOYALTY. 

1.  Officer— Charged  with.    G.  O.  52,  Apr.  15,  1865. 

DISMISSAL. 

1.  Acquittal— C.  M.  0. 160, 1901, stated  that  a  payclerk  was  acquitted.  This  acquittal  v  as 

approved  by  the  department,  but  also  stated  that  he  "  will  accordingly  be  dismissed 
from  the  naval  service."  In  C.  M.  O.  15,  1902,  the  department  stated: 

"  The  attention  of  the  service  is  called  to  departmental  '  General  Court-Martial 
Order  No.  160,'  dated  September  26,  1901,  in  the  case  of  *  *  *,  United  States 
Navy,  wherein  it  was  stated  that  he  'will  accordingly  be  dismissed  from  the  naval 
service.' 

"  The  department  is  of  opinion  that  dismissal  is  not  the  logical  sequence  of  acquittal, 
and  that  the  proper  course  was  to  revoke  the  accused's  appointment.  The  action  in 
this  case  under  date  of  September  26. 1901,  has  accordingly  to-day  been  set  aside,  and 
the  Bureau  of  Navigation  has  been  directed  to  revoke  his  appointment  of  September 
11,  1899,  as  a  pay  clerk  in  the  Navy,  to  take  effect  as  of  September  26  last,  the  date  of 
the  department's  former  action."  C.  M.  O.  15, 1902. 

2.  Acting  boatswain — Sentence  of  dismissal  confirmed  by  President.    C.  M.  0. 102, 1905. 

3.  Confinement— In  case  of  an  officer  sentenced  to  dismissal  and  confinement,  the  depart- 

ment, instead  of  reducing  thetperiod  of  confinement,  recommended  to  the  President 
that  such  reduction  be  made  at  the  same  time  that  it  was  recommended  to  the  Presi- 
dent that  the  sentence  of  dismissal  be  confirmed;  accordingly  the  President,  in  con- 
firming the  sentence  of  dismissal,  reduced  the  period  of  confinement  as  recommended 
by  the  department.  G.  C.  M.  Rec.,  6245  (1881);  27526  (1913). 

4.  Confirmed— Sentence  of  dismissal  confirmed  by  President— No  sentence  of  a  court- 

martial,  extending  to  the  loss  of  life  or  to  the  dismissal  of  a  commissioned  or  warrant 
officer,  shall  be  carried  into  execution  until  confirmed  by  the  President.  All  other 
sentences  of  a  general  court-martial  may  be  carried  into  execution  on  confirmation 
of  the  commander  of  the  fleet  or  officer  ordering  the  court.  (A.  G.  N.63.)  See  10  Op. 
J.  A.  G.,  74,  Nov.  2,  1911. 

5.  Debts — Officer  dismissed  by  sentence  of  court-martial  for  failure  to  pay  just  debts. 

See  DEBTS.  4, 21. 

6.  "Dismissal,"  "Discharge,"  "Wholly  retired" — Defined  and  compared.    File  26260- 

697, 1392,  J.  A.  G.,  June  29, 1911,  p.  26.    See  also  DISCHARGE,  11. 

7.  Dismissal— From  "  United  States  Marine  Corps,  and  from  the  service  of  the  United 

States."    C.  M.  O.  1, 1905.    See  DISMISSAL,  32,  for  correct  phraseology  of  sentences. 

8.  Same— "From  the  naval  service  of  the  United  States."    C.  M.  O.  1,  1879,  6;  3,  1905,  2. 

See  DISMISSAL,  32,  for  correct  phraseology  of  sentences. 

9.  Drunkenness  on  duty — Every  officer,  especially  medical  officers,  who  is  convicted 

of  "Drunkenness  on  duty"  should  be  dismissed.    See  DRUNKENNESS,  30. 

10.  Form — A  general  court-martial  case  involving  dismissal  of  an  officer  was  sent  to  the 

President  for  confirmation  without  mentioning  expressly  A.  G.  N.  53.  C.  M.  O.  29, 
1881,  3. 

11.  Form  letter — For  dismissing  midshipmen.    See  DISMISSAL,  15. 

12.  Mate— Sentence  of  dismissal— Executed  on  approval  of  convening  authority— Unneces- 

sary for  President  to  confirm.    G.  C.  M.  Rec.  15970;  16  J.  A.  G.,  Nov.  2,  1911. 

13.  Midshipmen— It  is  unnecessary  for  the  convening  authority  to  refer  a  general  court- 

martial  record  to  the  Secretary  of  the  Navy  for  transmittal  to  the  President  in  the 
case  of  a  midshipman.  (C.  M.  O.  36, 1909, 2;  File  26202-198.)  While  it  is  not  neces- 
sary that  the  President  confirm  the  sentence  of  dismissal  in  the  case  of  a  midshipman, 
he  did  so  in  the  following  cases.  C.  M.  O.  28,  1905;  67,  1906;  9,  1909;  10,  1909. 

14.  Same — Advisable  that  sentences  of  dismissal  of  midshipmen  be  confirmed  by  Presi- 

dent.   See  HAZING,  6. 

15.  Same— Form  letter  for  dismissing  midshipmen.    File  20283-925,  Sept.  18,  191f>. 


DISMISSAL.  189 

16.  Same — Reappointment  of  dismissed  midshipmen  improper.    $ee  MIDSHIPMEN,  70-73. 

17.  Same — Power  of  Secretary  of  the  Navy  to  dismiss.    See  MIDSHIPMEN,  80. 

18.  Mitigation — The  President  has  the  power  to  mitigate  a  sentence  of  dismissal  to  loss 

of  numbers.  File  20202-198.  J.  A.  G.,  Nov.  12, 1908;  G.  C.  M.  Eec.  9079;  9427.  See 
also  PROBATION,  10, 11;  C.  M:.  O.  2, 1917. 

19.  Same— Sentence  of  dismissal  may  be  mitigated  by  the  Secretary  of  the  Navy  to  sus- 

pension or  loss  of  numbers.    C.  M.  O.  31, 1914;  39,  1914;  48,  1914,  11;  C.  M.  O.  2, 1917. 

20.  Same — Sentence  of  dismissal  was  mitigated  by  the  President  to  restriction  to  limits 

of  ship  or  station  and  loss  of  pay.    C.  M.  0. 32, 1905.    See  also  C.  M.  O.  82, 1892, 18-19. 

21.  Not  confirmed— Case  was  submitted  to  the  President  with  the  recommendation  that 

the  sentence  of  dismissal  be  not  confirmed,  and  the  President  in  his  action  stated 
that  the  sentence  "is  not  confirmed."  C.  M.  O.  30,  1903. 

22.  Officers — No  officer  of  the  Navy  who  has  been  dismissed  by  the  sentence  of  a  court- 

martial,  or  suffered  to  resign  in  order  to  escape  such  dismissal,  shall  ever  again  be- 
come an  officer  of  the  Navy  (R..S.,  1441).  File  13073-3728,  J.  A.  G.,  Mar.  17,  1916. 
See  also  File  5252-79,  J.  A.  G.,  June  19,  1915. 

23.  Same — An  officer  who  has  been  dismissed  can  not  be  restored  to  the  service  except  by 

reappointment.  (25  Op.  Atty.  Gen.,  579;  11  Op.  Atty.  Gen.,  19,  22;  19  Op.  Atty. 
Gen.,  205;  20  A.  and  E.  Enc.,  636;  McElrath  v.  U.  S.,  102  U.  S.,  426;  U.  S.  v.  Corson, 
114  U.  S.,  619;  Vanderslice  v.  U.  S.,  19  Ct.  Cls.,  484.)  See  also  LEGISLATION,  5;  File 
5252-73,  J.  A.  G.,  Oct.  1,  1915. 

24.  Same — A  warrant  machinist  deserted;  at  the  time  of  his  desertion  100  warrant  machin- 

ists was  the  full  number  allowed  by  law,  and  the  vacancy  caused  by  his  desertion 
was  filled,  thus  bringing  the  number  up  to  that  allowed  by  law  and  vacating  this 
machinist 's  number.  He  was  therefore  out  of  the  Navy.  See  DESERTION,  90, 91, 138. 

25.  Same — Sentences  as  confirmed  involving  dismissals  of  officers.    C.  M.  O.  11,  1914;  17, 

1914;  24,  1914;  27,  1914;  30,  1914;  50,  1914;  19,  1915;  47,  1915;  1, 1916;  15, 1916. 

26.  Same — Officers  of  the  Navy  are  not  subject  to  dismissal  by  the  President  except  pur- 

suant to  sentence  of  court-martial.  (R.  S..  1229,  1624,  A.  G.  N.  36.)  See  G.  0. 148, 
Dec.  31,  1869. 

27.  Pay  clerks — Sentences  as  confirmed  involving  dismissal.    C.  M.  O.  46,  1915. 

28.  Paymaster's  clerks — The  sentence  of  dismissal  in  the  case  of  a  paymaster's  clerk  may 

be  carried  into  execution  when  approved  by  the  convening  authority — Confirma- 
tion by  the  President  is  not  necessary.  16  J.  A.  G.,  65,  Nov.  2,  1911;  C.  M.  O.  26, 
1912,  4.  See  also  C.  M.  O.  24, 1915;  26,  1915,  where  for  certain  reasons  sentences  were 
so  confirmed.  See  also  C.  M.  0. 10, 1916,  for  dismissal  of  paymaster's  clerk,  U.  S.  M.  C. 

29.  Same — Resjudicata.    See  RES  JUDICATA,  5. 

30.  Restoration— Of,  officer  after  dismissal.    See  DISMISSAL,  23;  LEGISLATION,  5. 

31.  Revocation  of— "The  order  of  December  30, 1865,  dismissing    *    *    *,    master  in  the 

United  States  Navy  *  *  *,  declared  void,  and  Mr.  *  *  *  is  hereby,  under 
and  by  virtue  of  the  Revised  Statutes  of  the  United  States,  Title  XV,  chapter  10, 
article  37,  restored  to  the  retired  list  as  master."  G.  O.  210,  June  5, 1876.  See  also 
MIDSHIPMEN,  75. 

32.  Sentence — Proper    form — The   court,    therefore,    sentences   him,    Lieut.    *    *    *, 

United  States  Navy  (United  States  Marine  Corps),  to  be  dismissed  from  the  United 
States  naval  service.  C.  M.  O.  27,  1914;  50,  1914;  47,  1915.  See  also  DISMISSAL,  25. 
In  one  case  the  court  used  the  following  irregular  phraseology:  "To  be  dismissed 
from  the  United  States  Navy  as  an  undesirable  person  for  the  naval  service."  C.M.  O. 
146, 1900,  2. 

33.  Suspended— Sentence  of  dismissal  of  a  retired  officer  actually  suspended  twice  by  the 

President  and  then  remitted.    C.  M.  O.  23,  1896. 

34.  Warrant  officers  (commissioned)— Sentences  as  confirmed  involving  dismissal. 

C.  M.  0. 18,  1914;  21,  1915;  2,  1916. 

35.  Warrant  officers  (commissioned)  retired— Sentence  as  confirmed  involving  dis- 

missal.   C.  M.  0. 15, 1915. 

36.  Warrant  officers— Sentence  as  confirmed  involving  dismissal.    C.  M.  O.  32, 1914;  20, 

1916';  34,  1916. 

37.  Same— Sentences  involving  dismissal  mitigated.    C.  M.  O.  39, 1915;  48, 1915. 

DISOBEDIENCE  OF  ORDERS.    See  DRUNKENNESS,  52;  OBEDIENCE;  ORDERS. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  5, 1911,  7. 

2.  Mistake  of  judgment — Disobedience  of  orders  caused  by  a  mistake  of  judgment  in 

regard  to  professional  rights  and  duties,  rather  than  a  deliberate  intention  of  wrong,, 
rarely  requires  a  severe,  and  never  a  disgraceful,  punishment.  G.  O.  140,  Sept.  17,. 
1869. 


190  DISOBEDIENCE   OF   ORDERS. 

3.  Most  serious  offense — "The  offense  of  refusing  to  obey  the  lawful  order  of  a  superior 

officer  is  one  of  the  most  serious  known  to  naval  laws."  C.  M.  O.  57,  1895,  3;  58, 
1895,  3. 

4.  Same — "Disobedience  of  orders  is,  under  any  circumstances,  a  serious  offense,  and 

when  committed  deliberately,  by  an  intelligent  officer,  under  a  claim  of  right,  must 
tend  greatly  to  the  subversion  of  discipline."  G.  0. 140,  Sept.  17, 1869. 

5.  Officers— Charged  with.    C.M.  0. 1,  1882;  29, 1881;  24, 1886;  33, 1889;  40, 1889;  61i,  1890; 

G.  C.  M.  Rec.  6054;  6737. 

6.  Same — General  court-martial  of  an  assistant  engineer  which  involved  a  controversy 

between  the  line  and  staff  as  to  the  matter  of  command.  Accused  officer  was 
charged  with  "Disobedience  of  the  lawful  order  of  his  superior  officer,"  the  specifi- 
cation alleging  that  the  accused  refused  to  obey  a  lawful  order  of  the  officer  of  the 
deck.  C.  M.  O.  67, 1892.  See  also  COMMAND,  19. 

7.  Same — "Disobedience  of  orders  by  an  officer  is  at  all  times  a  most  grave  offense.    It 

becomes  the  fruitful  parent  of  acts  of  like  disobedience  in  others.  It  overturns  all 
discipline  and  law  and  substitutes  demoralization  and  disorder  in  their  stead.  It 
destroys  all  responsibility  in  the  service,  subverts  the  necessary  protection  of  lawful 
authority,  and  the  subordination  essential  to  the  safety,  efficiency,  and  order  of  a 
ship,  and  causes  confusion  to  usurp  the  place  of  regular  and  responsible  command. 
''Unless  disobedience,  however  slight,  of  orders  by  officers  be  checked  and  pun- 
ished by  adequate  penalties,  the  spirit  of  disaffection  and  lawlessness  will  take 
courage  and  is  certain  to  extend  itself  to  subordinates."  C.  M.  O.  1,  1882,  3.  See 
also  DISOBEDIENCE  OF  ORDERS,  4. 

8.  Specific  Intent— A  deliberate  purpose  or  peculiar  intent  is  necessary  to  constitute  the 

offense  of  disobedience  of  orders,  and  drunkenness  may  be  a  matter  of  legal  defense 
in  so  far  as  it  affects  the  capacity  to  entertain  such  purpose  or  intent.  See  DRUNK- 
ENNESS, 52. 

9.  What  constitutes.    File  26251-668:  a. 

DISOBEDIENCE  OF  A  LAWFUL  ORDER  OF  THE  CHIEF  OF  THE  BUREAU 
OF  NAVIGATION. 

1.  Officer— Charged  with.    C.  M.  0. 39, 1914. 

DISOBEDIENCE  OF  A  LAWFUL  ORDER  OF  THE  SECRETARY  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  7.  1894;  1,  1916;  G.  C.  M.  Rec.  7772. 

2.  Warrant  officer— Charged  with.    C.  M.  O.  34, 1916. 

DISOBEYING  THE  LAWFUL  ORDER  OF  HIS  SUPERIOR  OFFICER. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  28, 1913,  5. 

2.  Midshipman— Charged  with.    C.  M.  0. 9, 1909. 

3.  Officer— Charged  with.    C.  M.  O.  16,  1910;  16,  1911;  3,  1912;  36,  1912;  4,  1913;  37,  1913. 

4.  Warrant  officer— Charged  with.    C.  M.  O.  38, 1914. 

5.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  O.  20, 1911. 

DISORDERLY  CONDUCT. 

1.  Definition— "Disorderly  conduct  means  not  merely  noisy  and  boisterous  behavior,  but 
includes  within  its  legal  signification  whatever  conduct  strikes  openly  at  the  organiza- 
tion or  interferes  with  the  orderly  relations  of  civil  or  military  society."  G.  O.  182, 
Apr.  2, 1873. 

DISPOSITION  OF  BODIES. 

1.  Chief  pay  clerk— Deceased  left  a  signed  statement  in  which  he  desired  his  body,  in  case 
of  death,  to  be  sent  to  a  certain  party,  who  would  notify  his  parents,  and  "under  no 
circumstances  are  my  effects  to  be  sent  to  my  wife,  *  *  *  as  I  have  not  lived  with 
her  or  written  to  her  for  many  years."  This  third  party  requested  that  the  body  be 
forwarded  to  the  deceased's  father  and  the  effects  to  her.  The  wife  of  the  deceased 
requested  that  the  remains  be  shipped  to  her.  Held,  That  the  remains  being  prop- 
erly in  the  custody  of  the  department  and  it  being  necessary  to  come  to  a  prompt 
decision  in  the  matter  without  waiting  to  have  the  matter  determined  by  judicial 
procedure,  it  was  directed  that  the  remains  be  disposed  of  in  accordance  with  the 
request  of  the  deceased's  father,  which,  it  would  appear,  would  be  in  compliance  with 
the  testamentary  disposition  made  by  the  deceased.  File  26250-860:1,  Sec.  Navy, 
Oct.  26, 1916. 


DISPOSITION   OF   EFFECTS.  191 

DISPOSITION  OF  EFFECTS. 

1.  Deserters.    See  DESERTERS,  11, 12. 

2.  Enlisted  men — The  department  is  legally  authorized  to  deliver  the  effects  of  a  deceased 

enlisted  man  into  the  care  of  the  public  administrator  of  the  county  of  New  York, 
N.  Y.,  upon  said  public  administrator  producing  letters  of  administration  or  other 
satisfactory  evidence  of  his  authority  to  receive  said  effects.  In  this  connection  the 
following  is  quoted  with  reference  to  the  authority  of  public  administrators  in  gen- 
eral, which  would  be  applicable  to  the  present  case  in  the  absence  of  evidence  showing 
a  different  state  of  law  in  New  York: 

"A  public  administrator  is  not  merely  as  such  entitled  to  take  charge  of  and  admin- 
ister estates t  although  he  may  under  certain  circumstances  take  charge  temporarily; 
but  it  is  ordinarily  necessarv  that  he  should  be  appointed  administrator  by  the  court 
upon  his  petition  being  duly  filed  and  due  notice  being  given.  In  appointing  the 
public  administrator  to  administer  any  particular  estate,  the  court  exercises  the  same 
jurisdiction  that  it  does  in  the  grant  "of  letters  in  ordinary  cases,  and  when  he  is  so 
appointed  he  holds  the  same  relation  to  each  individual  estate  that  a  private  admin- 
istrator would."  (18  Cyc.  117.)  File  26250-477:8,  J.  A.  G.,  Dec.  8,  1914;  C.  M.  0.  6, 
1915,  10. 

3.  Same— See  Ffle  26250-477:6$,  J.  A.  G.,  Oct.  8, 1914,  for  rule  of  department. 

4.  Money.    File  7657-183;  7657-231;  7657-253;  26250-477:6i;  26260-587:2;  26250-131:1. 

5.  Officers'  effects— Should  be  delivered  only  to  a  duly  appointed  administrator  of  said 

officer's  estate,  when  effects  involved  are  of  a  value  in  excess  of  $500.  File  28478-33, 
J.  A.  G.,  Apr.  17, 1916. 

6.  Personal  effects — Where  no  demand  is  made  by  a  duly  appointed  legal  representative 

of  the  estate,  the  personal  effects  of  deceased  persons  in  the  Navy  may  be  disposed  of 
in  the  order  of  precedence  prescribed  by  act,  May  27, 1908  (35  Stat. ,  373),  with  reference 
to  cash  accounts  of  deceased  officers  and  enlisted  men  of  the  Navy  and  Marine  Corps 
"where  the  amount  due  the  decedent's  estate  is  less  than  $500."  (File  26250-477:6J, 
J.  A.  G..  Oct.  8,  1914;  28478-33,  J.  A.  G.,  Apr.  17,  1916.)  In  a  case  which  involves 
effects  or  a  value  greatly  in  excess  of  $500,  and  includes  checks,  certificates  of  stock, 
etc.,  the  property  in  which  could  be  transferred  only  upon  the  order  of  a  duly  appointed 
representative  of  the  estate,  advised  that  the  aforesaid  effects  left  by  the  deceased 
should  be  delivered  only  to  a  duly  appointed  administrator  of  said  person's  estate. 
File  28478-33.  J.  A.  G.,  Apr.  17,  1916.  See  also  File  808-1,  J.  A.  G.;  5206-5,  J.  A.  G.; 
26250-131:1. 

7.  Prisoners— Enlisted  men.    File  7657-183,  J.  A.  G.,  May  26, 1913;  7657-231,  May  1,  1914; 

7657-253,  Sept.  9,  1914;  26250-477:6$,  Oct.  8,  1914;  27222-41,  Sec.  Navy,  July  1,  1916. 

8.  Same— Pay  clerk.    File  28478-33. 

DISPUTED  FACTS. 

1.  Court— Findings  of,  not  in  general  disturbed  where  facts  are  in  dispute.    See  CRITICISM 
OF  COURTS-MARTIAL,  14. 

DISRATING.    See  REDUCTION  IN  RATING. 

DISRESPECT  TO  THE  SECRETARY  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  40, 1889. 

DISRESPECT  TOWARD  THE  ACTING  SECRETARY  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  40,  1889,  5. 

DISRESPECTFUL  IN  LANGUAGE  TO  HIS  SUPERIOR  OFFICER  WHILE  IN 
THE  EXECUTION  OF  HIS  OFFICE. 

1.  Officer— Charged  with.    C.  M.  O.  4, 1911. 

DISRESPECTFUL  AND  INSUBORDINATE  TO  HIS  COMMANDER  IN  CHIEF. 

1.  Officer— Charged  with.    G.  C.  M.  Rec.  6543. 

DISRESPECTFUL  IN  LANGUAGE  AND  DEPORTMENT  TO  HIS  SUPERIOR 
OFFICER  WHILE  IN  THE  EXECUTION  OF  THE  DUTIES  OF  HIS 
OFFICE. 

1.  Officer— Charged  with.    C.  M.  O.  16,  1910,  2. 

2.  Warrant  officer— Charged  with.    C.  M.  O.  13,  1915. 

50756°— 17 13 


192  DRUMMER,  U.  S.  M.  C. 

DISTRICT  ATTORNEY. 

1.  Assistance  of— For  court  of  inquiry.    See  ATTORNEY  GENERAL,  8;  COURTS,  OK  IN- 

QUIRY, 16. 

2.  Assistance  to — Appointment  of  person  to  assist  district  attorney  made  only  on  request 

of  district  attorney.    See  ATTORNEY  GENERAL,  9. 

DISTRICT  COURTS  OF  THE  UNITED  STATES. 

1.  Habeas  corpus — Power  to  issue  writs  of.    See  JURISDICTION,  28,  35-39. 

2.  Naturalization— Aliens.    See  CITIZENSHIP,  2. 

DISTRICT  JUDGE.    C.  M.  O.  31,  1915,  8. 

DIVISIONAL,  OFFICER. 

1.  Counsel,  as — Preferable  as  counsel  for  a  man  in  his  division.    C.  M.  O.  6, 1909, 3. 

DIVORCE. 

1.  Corespondent.    See  CIVIL  AUTHORITIES,  42. 

2.  Citizenship — Of  foreign-born  child  of  alien  parents — Mother  divorced  and  married 

American  citizen.    File  26252-101,  Sec.  Navy,  Nov.  6,  1915. 

3.  Enlisted  man— Request  by  civil  authorities  that  an  enlisted  man  appear  as  core- 

spondent.   See  CIVIL  AUTHORITIES,  42. 

4.  Nonsupport — Wife  instituted  proceedings  against  officer.    See  CIVIL  COURTS,  7. 

5.  Officer— Sued  for  divorce.    See  CIVIL  COURTS,  7. 

DOCKET. 

1.  Advancement  of  case— On  docket  when  United  States  a  party.    See  CIVIL  COURTS,  15. 

DOCUMENT.  See  CERTIFIED  COPIES;  EVIDENCE,  DOCUMENTARY. 
DOCUMENTARY  EVIDENCE.  See  EVIDENCE,  DOCUMENTARY. 
DOMESTIC  TROUBLES  OF  OFFICERS.  See  File  28478-38. 

DOMICILE. 

1.  Midshipmen— As  to  determining  domicile  of  candidate  for  midshipman.    See  MID- 

SHIPMEN, 6. 

2.  Parental.   See  POLL  TAXES,  2. 

"DOPE."    See  BLOTTER;  GOUGINQ. 

DOUBLE  IRONS. 

1.  Abolished — "The  use  of  irons,  single  or  double,  is  abolished  except  for  the  purpose  of 

safe  custody  or  when  part  of  a  sentence  imposed  by  general  court-martial. "    (A.  G.  N. 
24;  act  Feb.  16,  1909,  35  Stat.,  621.) 

2.  Commanding  officer — Tried  by  general  court-martial  for  cruelty  to  enlisted  men 

under  his  command.    Among  other  things  he  placed  them  in  double  irons,  etc.    C. 
M.  O.  29,  1890.    See  also  COMMANDING  OFFICERS,  15;  DRUNKENNESS,  87. 

3.  General  court-martial— Sentences  including.    C.  M.  0. 162, 1902. 

DOUBLE  JEOPARDY.    See  JEOPARDY,  FORMER. 

DOUBLE  TIME  FOR  FOREIGN  SERVICE. 

1.  Enlisted  men— Extended  enlistments.    See  ENLISTMENTS,  13. 

DRAFT  OR  CONSCRIPTION.    See  CONSCRIPTION  OR  DRAFT. 

DRILL  BOOKS. 

1.  Regulations— Force  and  effect  of.    See  REGULATIONS,  NAVY,  14. 

DROWNING.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  23-42. 

DRUG.    C.  M.  O.  42,  1909, 13;  11,  1905,  2. 

DRUMHEAD  COURT-MARTIAL.    See  In  re.  EAGAN,  8  Fed.  Cas.,  4,  303. 

DRUMMER,  U.  S.  M.  C. 
1.  General  court-martial— Tried  by.    C.  M.  O.  38,  1883;  9,  18S5. 


DRUNKENNESS.  193 

DRUNKENNESS. 

1.  Absence  unauthorized— "Voluntary  drunkenness  is  never  an  excuse  for  an  offense 

such  as  unauthorized  absence,  but  in  many  cases  is  an  aggravation."  (G.  O.  110, 
p.  7.  See  also  C.  M.  «.  11,  1905.  p.  2.)  The  above  statement  was  made  by  the  de- 
partment in  the  case  of  a  chief  boatswain  who  was  found  guilty  of  "  Absence  from 
station  and  duty  after  leave  had  expired,"  and  "Drunkenness.'  C.  M.  0. 25.  1915, 
2.  See  also  C.  M.  0. 14, 1910, 10;  ABSENCE  FROM  STATION  AND  DUTY  AFTEB  LEAVE 
HAD  EXPIRED.  9, 10. 

2.  Abstention—"  If  he  is  liable  to  be  overcome  in  this  manner  by  their  moderate  use, 

he  must  realize  the  importance  for  the  absolute  abstention  from  their  use."  C.  M. 
O.  7,  1908, 1-2. 

3.  Affidavit  of  physician— Regarding  effect  of  intoxicating  liquor— Not  admissible  as 

evidence.    See  AFFIDAVITS,  5. 

4.  Alcoholism.    See  ALCOHOLISM.  < 

5.  Aggravation— Voluntary  drunkenness  is  never  an  excuse  for  unauthorized  absence  but 

in  many  cases  is  an  aggravation.  See  ABSENCE  FROM  STATION  AND  DUTY  AFTER 
LEAVE  HAD  EXPIRED,  9,  10;  DRUNKENNESS,  1. 

6.  Arrest  of  drunken  enlisted  men — No  officer  shall  assist  personally  in  the  arrest  of 

a  drunken  man  further  than  may  be  absolutely  necessary,  but  the  arrest  shall  always 
be  made  by  persons  not  above  the  grade  of  petty  officer,  who  are  to  be  instructed  to 
use  no  greater  force  than  that  required  to  restrain  or  confine  the  offender.  (R-1432.) 
See  DRUNKENNESS,  87, 90. 

7.  Assault-Where  an  accused  shot  and  wounded  another  while  accused  was  on  post 

and  drunk,  the  court  finding  the  accused  guilty  thereof,  but  that  the  word  "mali- 
ciously" was  not  proved,  apparently  because  accused  was  drunk  at  the  time  of  the 
shooting,  the  department  held  that  the  court  should  not  have  excepted  the  word 
"maliciously"  in  the  finding,  since  "a  drunken  man,  equally  with  a  sober  man,  is 
presumed  to  intend  his  acts. "  C.  M.  O.  7,  1911,  13.  See  also  ASSAULT,  15. 

8.  Same-^Drunkenness  may  be  a  defense  to  a  charge  of  "Assaulting  and  striking  his 

superior  officer  while  in  the  execution  of  the  duties  of  his  office, "  the  specification 
alleging  a  willful  and  malicious  assault.  C.  M.  O.  47,  1910,  8. 

9.  Assault  and  battery— Voluntary  drunkenness  furnishes  no  excuse  for  assault  and 

battery  and  evidence  of  it  is  inadmissible.  It  is  not  necessary  to  allege  a  specific  intent 
to  commit  the  act,  the  general  criminal  intent  being  presumed.  C.  M.  O.  8,  1911, 
4-6.  See  also  ASSAULT,  15, 18. 

10.  Beer — Specification  under  "Drunkenness"  alleged  that  accused  was  so  much  under 

influence  of  beer  or  some  other  alcoholic  stimulant,"  etc.  C.  M.  O.  20,  1888.  See 
also  BEER,  1. 

11.  Burden— Burden  is  on  party  claiming  drunkenness  as  a  defense.    C.  M.  O.  19, 1912,  7. 

12.  Burglary — Drunkenness  as  a  defense.    C.  M.  O.  42,  1909,  10.    See  also  BURGLARY,  3 

DRUNKENNESS,  49;  INTENT,  2, 10. 

13.  Clemency — Voluntary  drunkenness  does  not  afford  any  reasonable  or  good  ground 

for  the  exercise  of  clemency.  C.  M.  O.  8,  1911,  6.  See  also  File  4578-04;  CLEMENCY, 
18, 19;  DRUNKENNESS,  84. 

14.  Commanding  officer — "  For  a  commanding  officer  in  the  Navy  to  allow  himself  to 

become  intoxicated  is  bad  enough,  but  to  be  drunk  on  duty  is  intolerable."  C.  M. 
0. 33, 1889, 3.  See  also  COMMANDING  OFFICERS,  20,  21, 25. 

15.  Confessions— While  drunk.    See  CONFESSIONS,  4. 

16.  Confinement  of  a  drunkard — The  state  of  the  accused's  health  was  not  good,  but 

his  medical  record  indicated  that  the  sources  of  his  ill  health  are  debauches,  from 
which  confinement  will  free  him.  C.  M.  O.  146,  1896,  2. 

17.  Same — Intoxicated  men  shall  not  be  confined  in  any  place  or  manner  that  may  be 

dangerous  to  them  in  their  condition.    (R-1431.) 

18.  Danger  of  eicess— In  acting  upon  a  case  the  department  stated:  "It  is  to  be  hoped 

that  the  accused  [a  midshipman]  will  be  impressed  with  a  wholesome  fear  of  drink 
by  this  experience  and  have  always  in  mind  the  dangerous  possibilities  of  excess." 
C.  M.  O.  3, 1909. 

19.  Debauches.    C.  M.  0. 146, 1896,  2;  132, 1897, 1.    See  also  DRUNKENNESS,  16, 76. 

20.  Defense— Where  specific  intent  is  not  necessary,  it  is  a  well-established  general  rule  of 

law  that  voluntary  drunkenness  at  a  time  a  crime  was  committed  is  no  defense.  If 
a  person  voluntarily  drinks  and  becomes  intoxicated,  and  while  in  that  condition 
commits  an  act  which  would  be  a  crime  if  he  were  sober,  he  is  fully  responsible.  It 
can  make  no  difference,  where  no  specific  intent  is  necessary,  that  the  defendant  was 
so  drunk  as  to  have  no  capacity  to  distinguish  between  right  and  wrong.  (12  Cyc. 
170.)  C.  M.  O.  25,  1914,  3. 


194  DRUNKENNESS. 

21.  Same— Where  necessary  ID  prove  spec-Lie  intent.     C.  M.  O.  25,  1914,  3.    See  also 

ASSAULT,  15-19;  BURGLARY,  3;  DRUNKENNESS,  12,  20,  22,  49-52,  89;  INTENT,  2, 
12;  STATEMENT  OF  ACCUSED,  16. 

22.  Same — Weight  to  be  given  intoxication  as  a  defense  for  various  offenses. 

"Intoxication  is  now  very  generally  held  to  be  admissible  to  the  jury  on  trials  of 
indictment  for  murder,  not  to  excuse  but  as  bearing  upon  the  question  of  mental 
capacity  to  entertain  express  malice  or  to  exercise  deliberation,  thus  tending  to  show 
the  quality  and  degree  of  the  crime;  and  probably  the  same  rule  would  be  extended 
to  allcases  where  the  actual  presence  of  a  deliberate  intent  in  the  mind  of  the  prisoner 
at  the  time  of  the  act  is  essential  to  the  crime."  (3  Greenleaf,  sec.  6,  p.  10.)  "  When 
a  person  voluntarily  drinks  and  becomes  intoxicated,  and  while  in  such  a  condition 
commits  an  act  which  would  be  a  crime  if  he  were  sober,  he  is  nevertheless  responsi- 
ble, the  settled  rule  being  that  voluntary  drunkenness  is  no  excuse.  A  person  may 
be  so  drunk  when  he  commits  an  act  that  he  is  incapable,  at  the  time,  of  knowing  what 
he  is  doing;  but  in  case  of  voluntary  intoxication  a  man  is  not  the  less  responsible 
for  the  reasonable  exercise  of  his  understanding,  memory,  and  will.  A  drunken 
man,  equally  with  a  sober  man,  is  presumed  to  intend  his  acts,  and  the  natural  and 
ordinary  consequences."  (Clark's  Criminal  Law,  p.  70.) 

It  may  be  considered  as  an  established  principle  of  law  that  when  a  person  volun- 
tarily drinks  that  drunkenness  furnishes  per  se  no  excuse  or  palliation  for  criminal 
acts  committed  during  its  continuance  and  no  immunity  from  the  penal  consequences 
of  such  acts.  "Where  a  deliberate  purpose  or  peculiar  intent  is  necessary  to  constitute 
the  offense,  intoxication,  if  clearly  shown  in  evidence  to  have  been  such  as  to  have 
incapacitated  the  party  from  entertaining  such  purpose  or  intent,  will  ordinarily  be 
treated  as  constituting  a  legal  defense  to  the  specific  act  charged."  C.  M.  0. 14, 1910, 
11;  1, 1912,  4. 

Drunkenness  resulting  in  insanity.    See  ASSAULT,  17. 

23.  Same.    C.  M.  O.  104,  1896. 

24.  Same— No  defense  where  specific  intent  not  required.    C.  M.  0. 8, 1911,  5. 

25.  Same— Burden  is  on  party  claiming.    C.  M.  0. 19, 1912,  7. 

26.  Degree  necessary  to  constitute  "Drunkenness" — "  One  who  is  under  the  influence 

of  liquor  in  any  degree,  however  slight  it  may  be,  is  unfit  to  be  intrusted  with  the 
important  duties  incident  to  the  naval  service."  C.  M.  O.  92,  1905,  3. 

27.  Same— To  support  a  charge  of  "  Drunkenness, "  it  is  not  necessary  for  the  evidence  to 

show  that  the  degree  of  intoxication  was  so  great  as  to  occasion  a  profound  stupor  on 
the  part  of  the  accused;  the  universally  established  practice  of  the  naval  service,  on 
the  contrary,  is  such  as  to  warrant  a  finding  of  guilty  of  the  charge  of  "  Drunkenness ' ' 
when  it  is  proved  by  reliable  witnesses  that  the  accused  was  under  the  influence  of 
intoxicating  liquor;  indeed,  no  other  finding  would  be  justifiable.  C.  M.  O.  5, 1913, 3. 

28.  Same — Manifestly  there  are  different  degrees  of  intoxication.    However,  officers  in  the 

naval  service  should  not  be  guilty  of  overindulgence  which  will  in  any  way  incapaci- 
tate them  for  any  duties  which  may  be  required  of  them.  The  fact  that  an  officer 
apparently  performs  the  duties  assigned  to  him  at  a  particular  time  does  not  of  itself 
indicate  that  he  is  capable  of  performing  any  duties  which  might  have  been  assigned 
to  him.  The  degree  of  intoxication  goes  to  the  gravity  of  the  offense,  but  does  not 
relieve  an  officer  of  the  consequences  of  his  condition  if  he  has  been  guilty  of  such 
overindulgence  as  will  incapacitate  him  for  the  full  performance  of  his  duties.  C.  M. 
0.  5, 1915, 2. 

29.  Desertion— Accused  charged  with  desertion;  found  guilty  of  "  absence  from  station 
and  duty  without  leave,"  but  without  criminality,  and  was  acquitted.  Only  evidence 
in  extenuation  was  his  uncorroborated  evidence  that  he  became  drunk  while  on 
liberty  and  was  taken  to  sea  on  the  steamship  Bohemia.  Held,  That  voluntary 
drunkenness  furnishes  no  excuse  or  palliation  for  original  acts.  The  department  can 
not  admit  that  a  man  should  be  acquitted  of  desertion  who  absents  himself  from  his 
station  and  duty  for  nearly  seven  months,  whose  only  excuse  was  his  own  drunken- 
ness at  the  time  of  leaving.  Proceedings  were  disapproved  and  accused  discharged 
as  an  independent  proceeding.  C.  M.  0. 11, 1905.  See  also  ABSENCE  FBOM  STATION 

AND  DUTY   AFTER   LEAVE   HAD   EXPIRED,  9,    10;  C.  M.  O.  30,  1910,  10. 

30.  Dismissal — "Every  naval  officer,  and  especially  a  medical  officer,  whose  use  of  intoxi- 
cants is  carried  to  such  an  extent  that  his  superiors  cause  him  to  be  tried  and  who  is 
convicted  of  drunkenness  on  duty  should  be  sentenced  to  dismissal  from  the  Navy, 
and  sucrt  sentence  should  be  inexorably  carried  into  execution.  Whatever  charity 
or  assistance  may  be  extended  to  such  officers  should  be  given  when  they  reach  some 


DRUNKENNESS.  195 

other  walk  in  life  than  the  naval  service.  They  are  worthless  members  of  their  pro- 
fession, and  should,  in  every  case,  be  forced  off  the  list  of  officers  of  the  Navy."  C. 
M.  O.  34,  1884,  3;  101,  1906,  2.  See  also  C.  M.  O.  22,  1884,  3. 

31.  Dissipation.    C.  M.  O.  22, 1884,  3;  132, 1897, 3.    See  also  DRUNKENNESS,  70,  76. 

32.  Duty— Drunkenness  on  duty.    See  DRUNKENNESS  ON  DUTY. 

33.  Enlisted  men— Charged  with.    C.  M.  O.  47,  1910,  8;  23,  1910,  5;  25,  1914,  3.    See  also 

C.  M.  O.  5, 1914,  4. 

34.  Evidence  of — A  medical  officer  who  examined  the  accused  testified:  "lie  was  further 

examined  by  me  at  the  time,  and  it  was  soon  evident  in  my  opinion  that  he  was  suf- 
fering from  the  excessive  use  of  alcoholic  liquor.  This  was  evidenced  by  his  general 
manner  and  deportment,  his  unsteadiness,  sluggish  reaction  of  both  his  pupils,  his 
tremulous  tongue,  pulse  of  112,  odor  of  alcohol  on  his  breath,  and  his  own  acknowl- 
edgment that  he  had  been  out  drinking  the  night  before."  Also,  "10.  Q.  Doctor, 
would  you  say  that  you  considered  this  accused  under  the  influence  of  liquor? — A. 
Yes;  and  I  didn't  consider  him  fit  to  perform  his  duty  that  day,  and  so  reported." 
C.  M.  O.  28, 1915,  2. 

35.  Excess,  danger  of.    See  DRUNKENNESS,  18. 

36.  Excuse — The  department  can  not  concede  that  intoxication  forms  any  excuse  for  fail- 

ure to  render  prompt  and  implicit  obedience  to  orders  from  superior  officers.  C. 
M.  O.  77, 1906. 

37.  Expert  witness— A  naval  surgeon,  an  expert,  stated,  in  effect,  that  no  other  drug  than 

alcohol  would  account  for  the  condition  of  the  accused.    C  M.  O.  36,  1898,  2. 

38.  Finding— The  word  "intoxicated"  for  the  word  "drunk."    C.  M.  O.  53,  1905,  1. 

39.  Same— The  words  "intoxicants  or  drugs"  substituted  for  the  words  "intoxicating 

liquor."    C.  M.  O.  62, 1904. 

40.  Fraudulent  enlistment.   See  FRAUDULENT  ENLISTMENT,  23,  24. 

41.  Functions,  official — Naval  officers  in  the  ordinary  routine  of  sen-ice  are  compelled 

to  attend  official  functions,  and  the  fact  that  intoxicating  drink  is  offered  is  no  reason 
for  acceptance  and  no  excuse  for  excess.  File  26262-198,  J.  A.  G.,  Nov.  3,  1908,  p.  4. 
See  also  CLEMENCY,  37,  38;  SMOKER. 

42.  Gin.    See  C.  M.  O.  56, 1880. 

43.  Guard— Drunkenness  on  guard.    See  DRUNKENNESS  ON  GUARD. 

44.  Guest  of  club— Aggravates  offense  of  drunkenness.    C.  M.  O.  9, 1906.  1. 

45.  Hang-over.    C.  M.  O.  22, 1884,  3;  132,  1897,  3.    Seealso  DRUNKENNESS,  61. 

4t'i.  Habitual  use  of — "  The  habitual  and  excessive  use  of  stimulants,  by  which  the  facul- 
ties are  gradually  but  surely  undermined,  is  inexcusable  in  any  person  in  any  walk 
of  life;  in  an  officer  of  the  Navy,  frequently  charged  with  duties  involving  the  safety 
of  his  vessel  and  all  on  board,  no  palliation  should  be  considered  or  given  weight. 
If  he  undertakes  to  discharge  such  duties,  he  is  liable,  at  a  critical  moment,  to  fail 
in  their  performance  and  to  bring  about  terrible  disaster;  if  he  is  unable,  by  reason 
of  his  habits,  to  even  attempt  their  performance,  he  throws  upon  others  a  burden 
which  properly  belongs  to  Mm.  Whether  the  disability  is  caused  by  intoxication 
at  the  time  or  is  the  result  of  previous  dissipation,  is  a  question  of  secondary  impor- 
tance. In  either  case  it  is  the  consequence  of  willful  misconduct,  and  deserving  of 
unqualified  censure."  C.  M.  O.  22,  1884,  3. 

47.  "Habitually  drunk  on  duty"— Enlisted  man— Charged  with.    C.  M.  O.  40,  1888. 

48.  "Having  liquor  in  his  possession" — Enlisted  men— Charged  with.    C.  M.  O.  63, 

1892;  64,  1892. 

49.  Intent— "As  regards  intoxication,  it  is  the  established  principle  of  law  that  voluntary 

drunkenness  furnishes  per  se  no  excuse  or  palliation  for  criminal  acts  committed  dur- 
ing its  continuance  and  no  immunity  from  the  penal  consequences  of  such  acts. 

"But,  on  the  other  hand,  there  are  crimes  which  can  be  consummated  only  where 
a  peculiar  and  distinctive  intent,  or  a  conscious  deliberation  or  premeditation,  has 
concurred  with  the  act,  which  could  not  well  be  possessed  or  entertained  by  an  intoxi- 
cated person.  Thus  in  cases  of  such  offenses  as  larceny,  robbery,  or  burglary,  which 
require  for  their  commission  a  certain  specific  intent,  evidence  of  drunkenness  is 
admissible  as  indicating  whether  the  offender  was  capable  of  entertaining  this  intent, 
or  whether  the  act  was  anything  more  than  a  mere  battery,  trespass,  or  mistake. 
And  so  it  is  held  that  where  a  peculiar  intent  is  necessary  to  constitute  the  offense, 
drunkenness,  if  clearly  shown  in  evidence  to  have  been  such  as  to  have  incapacitated 
the  party  from  entertaining  such  purpose  or  intent,  will  ordinarily  properly  be  treated 
as  constituting  a  legal  defense  to  the  specific  act  charged."  C.  M.  0. 42, 1909, 10.  See 
also  C.  M.  O.  86,  1898,  1.  But  fee  C.  M.  O.  20,  1913,  4. 


196  DRUNKENESS. 

60.  Same— An  accused  was  charged  with  "assault  with  intent  to  kill,"  and  "assaulting 
with  a  deadly  weapon  and  wounding  another  person  in  the  service." 

While  it  was  shown  that  the  accused,  at  the  time  of  the  stabbing,  was  under  the 
influence  of  intoxicating  liquor,  it  was  not  shown  that  he  was  so  far  intoxicated  as  to 
be  disabled  from  entertaining  the  degree  of  intent  required.  The  fact  that  one  was 
drunk  at  the  time  of  the  commission  of  the  act  will,  in  certain  cases,  constitute  a  good 
defense,  but  such  is  a  matter  of  defense  only,  and  the  burden  of  proving  drunkenness 
is  upon  the  party  claiming  such  to  be  the  fact.  "It  is  a  well-settled  general  rule  that 
voluntary  drunkenness  at  the  time  a  crime  was  committed  is  no  defense.  If  a  person 
voluntarily  drinks  and  becomes  intoxicated,  and  while  in  that  condition  commits  an 
act  which  would  be  a  crime  if  he  were  sober,  he  is  fully  responsible  unless  his  drunken- 
ness has  resulted  in  insanity,  or  unless  it  rendered  him  incapable  of  entertaining  a 
specific  intent  which  is  an  essential  ingredient  of  the  offense."  (12  Cyc.,  170  et  seq.) 

;  Drunkenness  will  be  a  defense  in  those  crimes  in  the  commission  of  which  a  specific 

intent  is  requisite,  but  it  must  be  shown  that  the  accused  "was  by  drink  to  entirely 
deprived  of  his  reason  that  he  did  not  have  the  mental  capacity  to  entertain  the  neces- 
sary specific  intent  required  to  constitute  the  crime"  (12  Cyc.,  172),  and  the  burden 
of  showing  such  to  have  been  the  case,  being  a  matter  of  defense  merely,  rests  upon 
the  defendant.  A  resume1  of  the  evidence  as  to  the  drunkenness  of  the  accused  at  the 
time  of  the  stabbing  will,  it  is  believed,  fail  to  disclose  that  his  drunkenness  had 
resulted  "in  insanity"  or  that  he  was  "so  entirely  deprived  of  his  reason  as  to  be 
thereby  rendered  incapable  of  entertaining  the  specific  Intent  requisite  to  constitute 
the  crime."  C.  M.  0. 19, 1912,  7.  See  also  ASSAULT,  17. 

51.  Same— "Where  the  question  is  whether  words  have  been  uttered  with  a  deliberate 
purpose  or  are  merely  low  and  idle  expressions,  the  drunkenness  of  the  person  uttering 
them  is  proper  to  be  considered."  (3  Greenleaf,  sec.  6,  p.  10.)  "  Intoxication  is  now 
very  generally  held  to  be  admissible,  not  to  excuse  a  crime  but  as  bearing  upon  the 
question  of  mental  capacity  to  entertain  express  malice,  or  to  exercise  deliberation, 
or  the  actual  presence  of  a  deliberate  intent  in  the  mind  of  the  prisoner  at  the  time 
of  the  act."  (Greenleaf  on  Evidence.) 

Where,  therefore,  the  actual  existence  of  any  particular  purpose,  motive,  or  intent 
is  a  necessary  element  to  constitute  a  particular  species  of  crime  or  degree  of  criminality, 
the  fact  that  the  accused  was  intoxicated  at  the  time  may  be  taken  into  considera- 
tion in  determining  the  purpose,  motive,  or  intent  with  which  he  committed  the  act. 
(3  Greenleaf  on  Evidence,  p.  10,  note.) 

Drunkenness,  if  clearly  shown  in  evidence  to  have  been  such  as  to  have  incapacitated 
the  party  from  entertaining  sufh  purpose  or  intent,  will  ordinarily  be  properly  treated 
as  constituting  a  legal  defense  to  the  specific  act  charged.  It  might  be  remarked, 
however,  that  if  the  drunken  act  has  involved  a  disorder  or  neglect  of  duty  prejudicial 
to  good  order  and  discipline,  and  such  will  almost  invariably  be  the  fact,  the  accused 
may  be  convicted  of  an  offense  under  the  latter  charge.  ( Winthrop's  Military  Law, 
2d  ed.,  p.  441.)  C.  M.  0. 14,  1910,  15-16.  See  also  C.  M.  O.  47, 1910,  8;  19,  1895,  2-3. 

[  52.  Same — While  it  is  an  established  principle  of  law  that  voluntary  drunkenness  fur- 
nishes per  se  no  excuse  or  palliation  for  criminal  acts  committed  during  its  contin- 
uance, yet  in  military  law,  whei  a  a  deliberate  purpose  or  peculiar  intent  is  necessary 
to  constitute  the  offense,  as  in  the  cases  of  disobedience  of  orders,  drunkenness,  if 
shown  in  evidence  to  have  beea  such  as  to  have  incapacitated  the  party  from  enter- 
taining such  purpose  or  jnten  ,  will  ordinarily  properly  be  treated  as  constituting  a 
legal  defense,  etc.  C.  M.  O.  8t>.  1898, 1. 

'  53.  Intoxicated— The  word  "intoxicated"  was  substituted  for  the  word  "drunk."  C. 
M.  O.  53, 1905,  1. 

54.  Involuntary.    C.  M.  O.  14, 1910, 10. 

55.  Judge  advocate— Tried  by  general  court-martial  for  being  drunk.    C.  M.  O.  57,  1880; 

104, 1896;  2, 1913.    See  also  JUDGE  ADVOCATE,  83-85. 

56.  Larceny— Drunkenness  as  a  defense.    C.  M.  O.  42,  1909,  10.    See  also  DRUNKENNESS, 

22,  49,  89. 

57.  Medical  officers — Might  be  called  at  any  time  to  render  professional  services  of  vital 

importance,  and  if  they  are  under  the  influence  of  an  intoxicant  they  would  be  inca- 
pacitated for  such  duty.  C.  M.  O.  43, 1915,  2.  See  also  DRUNKENNESS,  30. 

58.  Same— Should  never  become  intoxicated.   C.  M.  O.  101,  1906,  2.  See  also  DRUNKEN- 

NESS, 30. 

59.  Midshipmen— Charged  with.    C.  M.  O.  3, 1909;  7. 1912;  8,  1912. 

60.  Murder— Drunkenness  as  a  defense.    C.  M.  0. 1, 1912, 4.    See  also  DRUNKENNESS,  22. 


DRUNKENNESS.  197 

61.  Night  before — That  the  accused  had  been,  as  shown  by  his  testimony,  under  the  in- 

fluence of  liquor  the  evening  before  certainly  can  not  be  deemed  an  excuse  for  being 
drunk  on  duty  the  day  after.  C.  M.  O.  39, 1909, 1.  See  also  DRUNKENNESS,  45. 

62.  Officers— Charged  with.    C.  M.  O.  4,  1909;  56,  1910;  16,  1910;  25,  1911;  4,  1912;  9, 1912; 

27,  1912;  38,  1912;  15, 1913;  21,  1913;  31,  1913;  36,  1913;  40,  1913;  6,  1914;  7,  1914;  8,  1914; 
11, 1914;  17, 1914;  24, 1914;  31, 1914;  43, 1914;  44, 1914;  14, 1915;  33, 1915;  34, 1915;  40,  1915; 
48, 1915;  1, 1916;  18, 1916;  40, 1916;  41, 1916;  1, 1917;  4, 1917;  9, 1917;  11, 1917;  20,1917. 

63.  Officer  of  the  deck,  drunk.    See  DRUNKENNESS,  99. 

64.  Orders— Drunkenness  no  excuse  for  not  obeying  orders  promptly.    C.  M.  O.  77,  1906. 

See  also  DRUNKENNESS,  36. 
Orders  to  attend  a  smoker.    See  CLEMENCY,  37, 38;  DRUNKENNESS,  41. 

65.  Paymaster's  clerks— Charged  with.    C.  M.  O.  37, 1912. 

66.  Petty  officer— Who  periodically  gets  drunk  is  worse  than  useless  for  the  service.    See 

PETTY  OFFICERS,  1. 

67.  Plea— Guilty  to  "Drunkenness"  when  charged  with  "Drunkenness  on  duty."    C. 

M.  O.  23, 1910,  4. 

68.  Pledges.    See  PLEDGES  AND  PROMISES,  2-7. 

69.  Post— Drunkenness  on  post.    See  DRUNKENNESS  ON  POST;  SENTINELS,  15, 16. 

70.  Previous  dissipations.    C.  M.  O.  132, 1897,  3.    See  also  DRUNKENNESS,  31,  76. 

71.  Promises  to  abstain.    See  PLEDGES  AND  PROMISES,  2-7. 

72.  Proof  of.   See  DRUNKENNESS,  26-28, 100. 

73.  Public  opinion — The  commander  in  chief,  United  States  Pacific  Fleet,  made  the 

following  remarks  in  acting  upon  a  case: 

"  The  general  drift  of  public  opinion  in  the  United  States  to-day  shows  a  marked 
tendency  toward  repressing  the  use  of  intoxicants,  and  it  behooves  the  officers  of  the 
naval  service  to  take  note  of  this  determination .  It  has  been  stated  by  a  naval  officer 
of  considerable  rank,  in  speaking  of  this  very  case, '  If  a  man  can  not  get  drunk  in  his 
own  quarters,  where  can  he  get  drunk? '  It  is  possible  that  the  members  of  the  court 
were  actuated  by  the  same  sentiment  and  sought  to  protect  an  officer  in  this  imaginary 
'right.'  On  no  other  hypothesis  can  the  commander  in  chief  reconcile  these  findings 
with  the  established  facts  laid  before  it  in  sworn  testimony.  The  commander  in  chief 
can  not  subscribe  to  or  approve  such  doctrine.  No  officer  can  get  drunk  in  his  quar- 
ters, enter  into  a  disturbance  that  brings  public  scandal,  disgrace,  and  death,  drags 
the  good  name  of  the  naval  service  in  the  dust  in  the  newspapers  and  in  a  whole 
populous  community  through  the  publicity  of  his  actions  and  hope  to  avoid  being 
held  to  a  strict  accountability  therefor.  The  action  of  the  court  in  this  case  shows  a 
decided  lack  of  appreciation  of  the  honor  and  dignity  of  the  Navy,  but  as  the  com- 
mander in  chief  has  exhausted  h  is  power  in  the  premises  he  can  only  place  the  evidence 
of  his  disagreement  on  the  record."  C.  M.  O.  5, 1913,  4. 

74.  Punishment  for— Should  be  dismissed.    C.  M.  0. 101, 1906,  2.    See  also  DRUNKEN- 

NESS, 30. 

75.  Quarters,  drunk  hi.    C.  M.  O.  5, 1913. 4.    See  also  DRUNKENNESS,  73. 

76.  Reprehensible — An  officer  was  charged  with  and  found  guilty  of  "Absence  from  duty 

without  leave"  and  "  Scandalous  conduct  tending  to  the  destruction  of  good  morals/' 
the  specification  under  the  latter  charge  alleging  that  the  accused  was,  in  consequence 
of  the  excessive  use  of  intoxicating  liquor,  incapacitated  for  the  proper  performance 
of  his  duty  to  such  a  degree  as  to  warrant  his  being  placed  on  the  sick  list  for  exhaus- 
tion after  debauch. 

The  department,  among  other  things,  stated:  "  The  offense,  while  laid  under  the 
formal  charges"  as  above  stated  "was  essentially  intoxication,  carried,  as  set  forth 
in  the  specification  of  the  second  charge,  to  such  an  extent  as  to  produce  incapacity 
for  the  proper  performance  of  duty.  Such  an  offense  is  a  grave  one.  The  excessive 
use  of  intoxicating  liquor  by  any  person  in  any  walk  of  life  is  reprehensible.  In  the 
case  of  an  officer  of  the  Navy,  frequently  charged  with  duties  involving  the  safety  of 
his  vessel  and  all  on  board,  it  is  inexcusable.  If  an  officer  in  such  a  condition  under- 
takes to  discharge  his  duties  he  is  liable,  at  a  critical  moment,  to  fail  in  their  perform- 
ance and  to  bring  about  disaster;  if  unable  even  to  attempt  their  performance  he 
throws  upon  others  a  burden  which  properly  belongs  to  him;  and  whether  such 
inability  is  caused  by  intoxication  at  the  time,  or,  as  appears  to  have  been  the  case  in 
the  present  instance,  is  the  result  of  previous  dissipation,  is  of  secondary  importance." 
C.  M.  O.  132, 1897,  2-3. 

77.  Resign,  ought  to— In  a  case  where  an  officer  was  found  guilty  of  "Drunkenness," 

being  unable  to  execute  his  duty  as  watch  and  division  officer  because  of  debauches 
and  dissipation  and  was  not  sentenced  to  dismissal,  the  department  stated  in  part: 


198  DRUNKENNESS. 

"The  Navy  Department  can  never  safely  again  order"  the  accused  "to  the  perform- 
ance of  sea  duty;  he  will  be  an  encumbrance  upon  the  active  list,  and  ought  to  resign 
from  a  high  and  honorable  profession,  the  appropriate  duties  of  which  he  can  never  be 
allowed  to  discharge  except  by  putting  in  unjustifiable  peril  the  ships  and  lives  of  the 
United  States  Navy."  C.  M.  0.  22,  1884,  3. 

78.  Resisting  arrest— Effect  of  drunkenness  on.    C.  M.  O.  23, 1910,  5-6. 

79.  Robbery— Drunkenness  as  a  defense.    C.  M.  0. 42, 1909, 10.    See  also  DRUNKENNESS,  49. 

80.  Scandalous  conduct  tending  to  the  destruction  of  good  morals— Officer  tried 

for  being  drunk.    C.  M.  O.  23,  1886. 

81.  Seditious  words,  uttering— Defense  of  drunkenness.    C.  M.  O.  14,  1910,  14-15.    See 

also  SEDITION. 

82.  Sentinel  posted  when  intoxicated.    See  SENTINELS,  15, 16. 

83.  Serious  offense — In  one  case  the  department  stated:  "  He  must  not  think  that  the 

department  condones  in  any  way  the  commission  by  officers  in  the  Navy  of  offenses 
such  as  those  of  which  he  acknowledges  himself  to  be  guilty.  The  offense  of  overin- 
dulgence in  intoxicants  is  a  most  serious  one  and  goes  far  toward  showing  that  the 
usefulness  to  the  Navy  of  one  who  is  guilty  of  it  is  approaching  its  end. "  C.  M.  O. 
118, 1905,  2. 

84.  Sick  list— The  department  has  decided  that  "if  an  officer  is  at  any  time  unfit  for  duty, 

due  wholly  or  in  part  to  overindulgence  in  intoxicants,  it  is  entirely  immaterial 
that  he  may  not  at  such  time  have  been  required  to  perform  any  particular  duty,  or 
that  he  placed  himself  in  such  condition  of  unfitness  after  the  customary  hours  for 
the  performance  of  usual  duties  by  him.  It  is  axiomatic  that  an  officer  in  a  military 
service  is  subject  to  duty  at  all  times,  unless  he  is  wholly  incapacitated  for  the  per- 
formance of  any  duty.  It  might  indeed  be  only  under  very  exceptional  circumstances 
that  an  officer  on  the  sick  list  would  be  called  upon  to  perform  an  act  of  duty,  but 
such  circumstances  are  not  inconceivable.  Certainly  no  officer,  because  of  the  fact 
that  he  is  on  the  sick  list  and  therefore  not  required  to  perform  his  ordinary  duty, 
is  justified  in  rendering  himself  altogether  unfit  for  duty  by  overindulgence  in  intoxi- 
cating liquor."  (File  26251-8280;  G.  C.  M.  Rec.  No.  28798). 

Nor  does  the  department  consider  that  the  fact  that  the  incapacity  of  an  accused  for 
the  proper  performance  of  duty,  which  the  court  finds  was  due  to  his  being  "under 
the  influence  of  intoxicating  liquor, "  is  mitigated  by  the  fact  that  his  incapacity  may 
have  been  due  inpart  to  "  his  physical  condition. "  The  fact  being  definitely  estab- 
lished that  an  officer  was  "under  the  influence  of  intoxicating  liquor,  and  thereby 
incapacitated  for  the  proper  performance  of  duty, "  it  must  be  at  best  merely  a  matter 
of  speculation  as  to  what  extent,  if  any,  his  incapacity  may  have  been  caused  by 
the  fact  that  he  was  sick — though  not  on  the  sick  list. 

Accordingly,  the  fact  that  the  condition  of  the  accused  in  this  case,  as  established  by 
the  court's  findings  undercharge  I,  may  have  been  in  part  due  to  his  physical  condition, 
was  not  regarded  by  the  department  as  a  sufficient  basis  for  the  exercise  of  clemency. 
C.  M.  0. 19, 1915, 8. 

85.  "Solitary  drinker."    See  C.  M.  O.  24, 1914, 15, 17, 19. 

86.  Specific  Intent— Effect  of  drunkenness.    See  DRUNKENNESS,  49-52;  INTENT,  19. 

87.  Subduing  a  drunk— The  department  stated  with  reference  to  a  case  where  an  en- 

listed man  was  found  guilty  of  drunkenness,  refusing  to  obey  orders,  resisting  arrest, 
threatening  to  kill  his  superior  officer,  and  disrespectful  in  language,  etc.,  "It  is 
observed,  in  addition  to  the  foregoing,  that  the  officer  of  the  deck  whose  order  was 
disobeyed,  although  he  says  that  the  accused  plainly  showed  by  his  conduct  while  at 
the  mast  that  he  was  under  the  influence  of  liquor,  nevertheless  was  retained  there  (in- 
stead of,  under  the  circumstances,  sending  him  forward  in  charge  of  police  of  the 
vessel  until  the  arrival  of  the  executive  officer)  and,  further,  that  the  executive  officer 
was  personally  present  after  the  accused  had  been  taken  below  to  the  brig  and  placed 
in  double  irons,  and  participated  in  the  throwing  of  salt  water  on  him  or  pouring 
it  in  his  mouth  as  variously  stated,  for  the  purpose  of  pacifying  him."  In  view  of 
the  foregoing  all  of  the  sentence  was  remitted  except  dishonorable  discharge.  C. 
M.  0. 86, 1898, 1-2.  See  also  DRUNKENNESS,  6, 90. 

88.  Theft— Drunkenness  as  a  defense.    C.  M.  0. 42, 1909, 10.    See  also  DRUNKENNESS,  20, 

22,  24,  49.  51,  52.    But  see  C.  M.  O.  20, 1913,  4. 

89.  Same — Where  there  was  no  evidence  to  show  that  the  accused  was  sufficiently  sober 

to  harbor  an  intent  to  permanently  deprive  the  owner  of  the  property  taken,  which 
is  a  necessary  ingredient  of  the  offense,  the  finding  of  guilty  on  a  charge  of "  Stealing 
property  of  the  United  States,  furnished  and  intended  for  the  naval  service  thereof" 
was  disapproved  by  the  department.  C.  M.  O.  25, 1914,  3.  See  also  BURGLARY,  3; 
DRUNKENNESS,  49;  INTENT,  2,  5. 


DRUNKENNESS.  199 

90.  Treatment  of  a  drunk.    C.  M.  O.  86, 1893, 1-2.    See  also  DRUNKENNESS,  6, 87. 

91.  "Unfit  for  duty" — "One  who  is  under  the  influence  of  liquor  in  any  degree,  however 

slight  it  may  be,  is  unfit  to  be  intrusted  with  the  important  duties  incident  to  the 
naval  service. "  C.  M.  O.  92, 1905,  3. 

92.  Unfit  for  the  Navy.    C.  M.  O.  22, 1884, 3;  132, 1897,  3.    See  also  DRUNKENNESS,  77. 

93.  Using  abusive,  obscene  and  threatening  language  toward  his  superior  officer— 

Effect  of  drunkenness  on.    C.M.  O.23,  1910,5-6. 

94.  Uttering  seditious  words— Eflect  of  drunkenness  upon.    C.  M.  O.  14,  1910,  14-15. 

See  also  SEDITION. 

95.  Vermouth.    See  C.  M.  O.  56, 1880. 

96.  Voluntary  drunkenness— "It  is  a  well-known  principle  of  law  that  a  man  who 

voluntarily  puts  himself  in  a  condition  to  have  no  control  of  his  actions  must  be  held 
to  intend  the  consequences."  C.  M.  O.  92,  1905,  3. 

97.  Warrant  officers— Charged  with.    C.  M.  O.  32, 1910;  17, 1912;  18,  1912;  24,  1912;  3, 1913; 

5,  1913;  13,  1913;  10,  1914;  40,  1914. 

98.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  O.  20,  1910;  21,  1910,  1C; 

33, 1910;  1, 1911;  18. 1911;  32, 1912;  12,1914;  21, 1914;  37, 1914;  48,  1914;  23,  1915;  25,  1915; 
28, 1915;  36,  1916;  38, 1916.  See  also  C.  M.  0. 16, 1914. 

99.  Watch  officer  drunk — "Few  men  have  a  greater  responsibility  of  property,  life,  and 

national  honor  immediately  resting  upon  them  than  a  watch  officer  of  a  vessel  of  war 
while  at  sea.  An  officer  who  is  guilty  of  drunkenness,  when  liable  to  be  called  upon 
to  assume  this  responsibility,  commits  a  crime  of  the  gravest  nature,  for  the  conse- 
quences of  his  crime  may  be  fatal  to  his  ship  and  to  all  on  board."  C.  M.  0. 22, 1884, 2. 
100.  Weight  of  evidence— In  a  case  where  a  pay  inspector  was  acquitted  by  general  court- 
martial  on  the  charge  of  "Drunkenness  on  duty"  the  convening  authority  stated: 
"It  is  the  opinion  of  the  reviewing  authority  that  the  court,  in  arriving  at  its  finding, 
erred  in  not  assigning  sufficient  weight  to  the  very  positive  testimony  of  the  officers 
who  made  an  examination  of  the  accused  with  the  special  object  of  ascertaining  his 
condition.  Undue  weight  must  have  been  given  also  to  thejperfonnance  of  routine 
duties,  and  to  the  negative  testimony  of  casual  observers."  Ct  M.  0. 16, 1908. 

DRUNKENNESS  ON  DUTY. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  23,  1910,  4;  10,  1911,  3;  29,  1913,  5. 

2.  Officers— Charged  with.    C.  M.  O.  8,  1909;  39,  1909;  44,  1909;  22, 1911;  11, 1912;  34, 1912; 

2,  1913;  19,  1913;  11,  1914;  17,  1914;  19,  1915. 

3.  Same — "  For  a  commanding  officer  in  the  Navy  to  allow  himself  to  become  intoxicated 

is  bad  enough,  but  to  be  drunk  on  duty  is  intolerable."    C.  M.  O.  33, 1889,  3. 

Officer  tried  by  general  court-martial  for  being  drunk  when  making  a  board  ing  call. 
C.M.  0.39, 1909. 

An  officer  who  was  recommended  for  trial  by  general  court-martial  for  "Drunken- 
ness on  duty"  received  a  letter  of  public  reprimand  from  the  Secretary  of  the  Navy 
in  lieu  of  trial.  File  26251-8826.  (M.  C.  File  3493-62.) 

4.  Specification— It  is  essential  that  the  specification  under  a  charge  of  "Drunkenness  on 

duty"  should  allege  either  the  nature  of  the  duty  or  at  least  contain  the  words  "on 
duty,"  as,  otherwise,  only  "Drunkenness"  is  alleged  and  not  the  more  serious  charge 
of  "Drunkenness  on  duty."  C.  M.  O.  23, 1910,  4. 

5.  Warrant  officers— Charged  with.    C.  M.  0. 12,  1909;  3, 1911, 1,  2;  24, 1913. 

6.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  O.  20,  1911;  33,  1911;  17, 

1912;  11,  1913;  18,  1914;  21, 1917. 

DRUNKENNESS  ON  GUARD. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  42,  1909,  3;  16, 1912,  3. 

DRUNKENNESS  ON  POST. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  5, 1911,  4;  7,  1911,  3. 

DRY  DOCKS. 

1.  Enlisted  man— Fell  into  dry  dock  and  killed.    See  LINE  OF  DUTY  AND  MISCONDUCT 

CONSTRUED,  50. 

2.  Floating  dry  docks — "A  floating  dry  dock,  the  same  as  a  vessel,  is  constructed  with  a 

view  to  its  removal  at  such  times  and  to  such  places  as  may  be  deemed  necessary  or 
ad  vis  able,  and,  as  shown  by  the  general  trend  of  legislation  extending  through  a  long 
period  of  years,  it  has  not  been  the  policy  of  the  Congress  to  place  restrictions  upon  the 
power  of  the  executive  as  to  the  one  any  more  than  as  to  the  other.  File  4670-47, 
J.  A.  G.,  Nov.  23, 1910,  p.  4. 


200  DRY   DOCKS. 

3.  Olongapo,  P.  I.— Floating  steel  dry  dock.    File  4670-47,  J.  A.  G.,  Nov.  23, 1910,  p.  4. 

4.  Removal — Of  floating  dry  dock  from  Algiers  to  Guantanamo.    File  4670-47,  J.  A.  G. 

Nov.  23,  1910. 

DEY  TORTUGAS. 

1.  Pilotage  of  vessels— Entering  the  naval  channel,  Dry  Tortugas.  - 13  J.  A.  G.,  371, 
Oct.  8,  1904. 

"DUE  FORM  AND  TECHNICALLY  CORRECT."    See  COURT,  14,  73. 

DUE  PROCESS  OF  LAW. 

1.  Discharge  of  officer— For  failing  morally  to  qualify  for  promotion.    File  26260-1392, 

J.  A.  G.,  June  29,  mil,  p.  31.     See  also  NAVAL  EXAMINING  BOARDS,  10;  PROMOTION,  64. 

2.  Orders  to  pay  debts— An  order  to  pay  debts  is  taking  money  without  due  process  of 

law.    See  DEBTS,  18. 

DUELS.    See  also  WORDS  AND  PHRASES. 

1.  Genera!  court-martial— Two  officers  were  tried  by  general  court-martial.    One  for 

sending  a  written  message  in  the  nature  of  a  challenge  and  the  other  for  bearing  the 
same  to  the  party  challenged.    G.  O.  22,  Oct.  17, 1863. 

2.  Specific  Intent — The  same  principle  is  set  forth  by  Winthrop  (p.  919),  in  considering 

the  offense  of  sending  or  accepting  a  challenge  to  fight  a  duel;  as  showing  that  the 
absence  of  intent  constitutes  a  defense,  he  says: 

"The  sending  or  accepting  of  a  challenge  being  urima  facie  established,  the  only 
defense  open  to  the  accused^  where  the  facts  are  not  denied,  would  appear  to  be  that 
a  criminal  intent  was  wanting,  as,  for  example,  that  a  serious  act  was  not  proposed, 
but  that  the  proceeding  was  by  way  of  banter  or  joke."  C.  M.  O.  5, 1912, 12. 

DUMMY. 

1.  Paymaster— In  a  certain  case  the  department  stated  that  when  the  accused  was  ordered 
to  duty  as  commissary  officer  of  his  ship,  it  was  not  the  department's  intention  that 
he  should  be  a  mere  figurehead  or  dummy  in  that  position,  leaving  the  actual  dis- 
charge of  the  duties  incident  thereto  entirely  in  the  hands  of  an  enlisted  man  without 
any  supervision  worthy  of  the  name.  C.  M.  O.  23, 1913,  13-14. 

DUPLICITY.    See  ABUSIVE  LANGUAGE  TOWARD  OTHER  PERSONS  IN  THE  NAVY,  i,  2; 
CHARGES  AND  SPECIFICATIONS,  32. 

DURESS.    See  CONFESSIONS,  9  (p.  102). 

DUTY. 

1.  Assignments  to  duty — "It  is  the  well-digested  policy  and  intention  of  the  department, 
in  making  assignments  to  duty,  to  assign  the  senior  grades  of  the  service  to  the  higher 
and  more  important  positions.  This  is  what  the  law  contemplates  and  reason  and 
propriety  demand,  and  it  is  most  just  and  fair  to  all."  G.  O.  228,  Aug.  1,  1877. 

DUTY  STATUS. 

1.  Enlisted  man— On  liberty  is  not  on  a  duty  status.  C.  M.  O.  23,  1910,  4.  See  also  LINE 
OF  DUTY  AND  MISCONDUCT  CONSTRUED. 

DYING  DECLARATIONS. 

1.  Nature  and  admlsslblllty  of — "Dying  declarations  are  statements  of  material  facts 
relating  to  the  cause  and  attendant  circumstances  of  the  declarant's  own  homicide, 
made  by  him  while  in  extremis  and  while  under  the  fixed  belief  and  moral  certainty 
that  his  death  is  impending  and  certain  to  follow  almost  immediately."  (Hughes 
on  Evidence,  p.  62,  sec.  1.) 

Dying  declarations  are  hearsay  evidence,  but  are  admitted,  as  stated  by  Greenleaf, 
quoting  Lord  Chief  Baron  Eyre,  because  "motive  for  falsehood  is  silenced."  The 
weight  given  these  declarations  has  lessened  materially,  as  shown  by  numerous 
cases.  Greenleaf  (16th  ed.,  vol.  1,  p.  253,  sec.  162)  states: 

"  Weight  of  declarations.— Though  these  declarations,  when  deliberately  made,  under 
a  solemn  and  religious  sense  of  impending  dissolution,  and  concerning  circumstances, 
in  respect  of  which  the  deceased  was  not  likely  to  have  been  mistaken,  are  entitled 
to  great  weight,  if  precisely  identified,  yet  it  is  always  to  be  recollected  that  the 
accused  has  not  the  power  of  cross-examination — a  power  quite  as  essential  to  the 
eliciting  of  all  the  truth  as  the  obligation  of  an  oath  can  be;  and  that  where  the  wit- 
ness has  not  a  deep  and  strong  sense  of  accountability  to  his  Maker,  and  an  enlight- 


DYING   DECLARATIONS.  201 

ened  conscience,  the  passion  of  anger  and  feelings  of  revenge  may,  as  they  have  not 
infrequently  been  found  to  do,  affect  the  truth  and  accuracy  of  his  .statements, 
especially  as  the  salutary  and  restraining  fear  of  punishment  for  perjury  is  in  such 
cases  withdrawn.  And  it  is  further  to  oe  considered  that  the  particulars  of  the 
violence  to  which  the  deceased  has  spoken  were  in  general  likely  to  have  occurred 
under  circumstances  of  confusion  and  surprise,  calculated  to  prevent  their  being 
accurately  observed,  and  leading  both  to  mistakes  as  to  the  identity  of  persons  and 
to  the  omission  of  facts  essentially  important  to  the  completeness  and  truth  of  the 
narrative." 

NOTE.— Phil,  and  Am.  on  Evid.,  305,  306;  1  Phil.  Evid.,  292;  2  Johns.,  35,  36, 
per  Livingston,  J.;  see  also  Mr.  Evans's  observations  on  the  great  caution  to  be 
observed  in  the  use  of  this  kind  of  evidence;  in  2  Poth.  Obi.,  255  (293);  2  Stark. 
Evid..  263;  see  also  R.  v.  Ashton,  2  Lewin  Cr.  Gas..  147,  per  Alderson,  B.  (People  v. 
Kraft,  148  N.  Y.,  631.) 

Wigmore  (p.  1800,  sec.  1432): 

"  Rule  applicable  in  certain  criminal  cases  only.  (1)  The  proceeding  in  which  the 
statements  are  offered  may  not  be  a  civil  case. 

"  (2)  It  must  be  a  public  prosecution  for  the  specific  crime  of  homicide. 

"(3)  It  must  be  a  prosecution  not  merely  for  an  act  which  has  resulted  in  fact  in 
death  but  for  an  offense  involving  legally  the  resulting  death  as  a  necessary  element. 
This  limitation  is  a  refinement  evolved  from  the  earlier  and  simpler  form  of  state- 
ment that  'death  must  be  the  subject  of  the  charge.'" 

Greenleaf  (16th  ed.,  vol.  1.  p.  245,  sec.  156),  quoting  numerous  cases,  states: 

"a.  Limitations  as  to  kind  of  issue,  person  declaring,  and  subject  of  declaration. — It 
was  at  one  time  held,  by  respectable  authorities,  that  this  general  principle  warranted 
the  admission  of  dying  declarations  in  all  cases,  civil  and  criminal;  but  it  is  now 
well  settled  that  they  are  admissible,  as  such,  only  in  cases  of  homicide,  'where  the 
death  of  the  deceased  is  the  subject  of  the  charge,  and  the  circumstances  of  the 
deceased  is  the  subject  of  the  charge,  and  the  circumstances  of  the  death  are  the 
subject  of  the  dying  declarations.'  [(1)  As  to  the  issue,  (a)  the  declaration  is  not 
admissible  in  a  civil  case;  (6)  it  is  admissible  in  no  other  criminal  case  than  a  prosecu- 
tion for  homicide;  even  where  death  is  incidentally  alleged  or  involved,  as  in  the 
case  of  a  prosecution  for  procuring  an  abortion;  (c)  the  death  which  is  the  subject 
of  the  charge  must  be  the  death  of  the  declarant.  (2)  The  subject  of  the  declaration  must 
be  the  circumstances  attending  or  leading  up  to  the  death  for  which  the  prosecution 
is  instituted;  for  example,  the  declaration  of  a  husband,  killed  by  the  wife's  paramour, 
that  he  had  found  them  in  adultery,  has  been  admitted;  while  the  deceased's  decla- 
rations as  to  a  prior  threat  by  the  defendant  have  been  excluded.  (4)  On  the  other 
hand,  the  declaration  is  not  excluded  by  the  circumstance  that  there  are  eyewit- 
nesses to  the  deed,  or  other  testimony;  or  that  the  fact  of  the  killing  is  conceded  by 
the  accused.]  The  reasons  for  thus  restricting  it  may  be  that  the  credit  is  not  in  all 
cases  due  to  the  declarations  of  a  dying  person;  for  his  body  may  have  survived 
the  powers  of  his  mind;  or  his  recollection,  if  his  senses  are  not  impaired,  may  not 
be  perfect;  or,  for  the  sake  of  ease,  and  to  be  rid  of  the  importunity  and  annoyance 
of  those  around  him,  he  may  say,  or  seem  to  say,  whatever  they  may  choose  to 
suggest.  These,  or  the  like  considerations,  have  been  regarded  as  counterbalancing 
the  force  of  the  general  principle  above  stated;  leaving  this  exception  to  stand  only 
upon  the  ground  of  the  public  necessity  of  preserving  the  lives  of  the  community 
by  bringing  manslayers  to  justice.  For  it  often  happens  that  there  is  no  third 
person  present  to  be  an  eyewitness  to  the  fact;  and  the  usual  witness  in  other  cases 
of  felony,  namely,  the  party  injured,  is  himself  destroyed.  But,  in  thus  restricting 
the  evidence  of  dying  declarations  to  cases  of  trial  for  homicide  of  the  declarant,  it 
should  be  observed  that  this  applies  only  to  declarations  offered  on  the  sole  ground 
that  they  were  made  in  extremis;  for  where  they  constitute  part  of  the  res  gestae,  or 
come  within  the  exception  of  declarations  against  interest,  or  the  like,  they  are 
admissible  as  in  other  cases,  irrespective  of  the  fact  that  the  declarant  was  under 
apprehension  of  death." 

Wigmore  (p.  1811,  sec.  1455)  states,  citing  a  large  number  of  cases: 

"  Testimonial  qualifications  (infancy,  insanity,  interest,  recollection,  leading  questions, 
written  declarations,  etc.). — In  general,  for  testimonial  qualifications,  the  rules  to  be 
applied  are  no  more  and  no  less  than  the  ordinary  ones,  already  examined  (sees.  483- 
812),  for  the  qualifications  of  other  witnesses: 

"1857,  Ogden,  J.,  in  Donnelly  v.  State  (26  N.  J.  L.  620):  'Whatever  would  dis- 
qualify a  witness  would  make  such  [dying]  declarations  incompetent  testimony.' 


202  DYING   DECLARATIONS. 

"1864,  Sanderson,  C.  J.,  in  People  v.  Sanchez  (24  Cal.  26):  'They  stand  upon  the 
same  footing  as  the  testimony  of  a  witness  sworn  in  the  case,  and  are  governed  by 
the  same  rules,  except  as  to  *  *  *  leading  questions.' 

"1874,  Campbell,  J.,  in  People  v.  Olmstead  (30  Mich.  434):  'They  [the  declarations] 
are  substitutes  for  sworn  testimony,  and  must  be  such  narrative  statements  as  a 
witness  might  properly  give  on  the  stand  if  living.' 

"1885,  Elliott,  C.  J.,'in  Boyle  v.  State  (97  Ind.,  322;  105  Ind.,  470):  'Dying  declara- 
tions are  admissible  in  a  case  where  the  evidence  would  be  competent  if  the  declarant 
were  on  the  witness  stand.  *  *  *  The  question  here  is  *  *  *  whether  the 
declarant's  statement  was  one  that  a  witness  on  the  stand  would  have  been  allowed 
to  make.' 

"(1)  Insanity,  infancy,  interest — If  the  declarant  would  have  been  disqualified  to 
take  the  stand,  by  reason  of  infancy,  insanity,  or  interest,  his  extrajudicial  declara- 
tions must  also  be  inadmissible. 

"(2)  Knowledge— The  declarant  must  have  had  actual  observation  or  opportunity 
for  observation  of  the  fact  which  he  relates. 

"(3)  Recollection— The  declarant's  capacity  of  recollection,  and  his  actual  recollec- 
tion, must  have  been  sufficiently  unimpaired  to  be  trustworthy.  The  allowance  of 
leading  questions  to  stimulate  recollection  is  sometimes  here  said  to  be  by  way  of  excep- 
tion to  the  general  rule  against  leading  questions  (ante,  sec.  769).  But  in  truth  there 
seems  to  be  no  exception.  The  situation  is  not  that  of  a  presumably  partisan  witness 
offered  in  court,  and  questions  leading  in  form  will  often  have  to  be  asked  in  order  to 
obtain  the  information  from  a  dying  person  unable  to  express  himself  except  by  a 
brief  'yes'  or  'no.'  The  mere  fact,  then,  that  questions  leading  in  form  are  asked 
does  not  infringe  the  principle  which  forbids  the  supplying  of  a  false  memory  (ante, 
sec.  778).  There  is  thus  no  general  rule  here  against  leading  questions.  Nevertheless, 
where,  in  a  particular  case,  the  interrogators  might  seem  to  be  really  supplying  a  false 
memory,  the  answers  should  be  excluded. 

"  (3)  Communication— (a)  Any  adequate  method  of  communication,  whether  by 
words  or  by  signs  or  otherwise,  will  suffice,  provided  the  indication  is  positive  and 
definite,  and  seems  to  proceed  from  an  intelligence  of  its  meaning: 

"1880,  Hines,  J.,  in  Mockabee  v.  Com.  (78  Ky.  382):  'Dying  declarations  are  not 
necessarily  either  written  or  spoken.  Any  method  of  communication  between  mind 
and  mind  may  be  adopted  that  will  develop  the  thought,  as  the  pressure  of  the  hand, 
a  nod  of  the  head,  or  a  glance  of  the  eye.' 

"(6)  When  the  declaration  is  in  writing,  the  question  may  arise  whether  it  is  his 
narration  at  all  (ante,  sec.  799).  If  the  declarant  has  written  it,  or  has  signed  or  other- 
wise approved  it  after  reading  it,  or  hearing  it  read  aloud  to  him,  it  may  be  offered  as 
his  declaration.  Otherwise  it  is  not  the  declaration;  and  it  can  not  in  such  a  case  be 
put  in  as  being  itself  the  dying  person's  declaration;  though  it  may  of  course  be  used 
to  refresh  the  writer's  recollection,  or  may  be  put  in  as  embodying  the  writer's  recollec- 
tion (under  the  principles  of  sees.  744-764,  ante).  Whether  this  writing  must  be  offered, 
instead  of  an  auditor's  testimony  by  recollection,  is  a  different  question  (examined 
post, sec.  1450)." 

It  will  be  observed  from  the  foregoing  authorities  quoted  that  a  dying  declaration 
should  not  be  admitted  except  in  cases  where  the  prosecution  is  for  the  crime  of  some 
form  of  homicide,  and  only  in  such  cases  where  the  death  of  the  deceased  is  the  subject 
of  the  charge.  As  stated  by  Greenleaf,  "it  is  admissible  in  no  other  criminal  case 
than  a  prosecution  for  homicide,  even  where  death  is  incidentally  alleged  or  involved. " 
C.  M.  O.  26,  1911,  3-6.  See  also  C.  M.  O.  49,  1915,  14. 

EFFECTS,  DISPOSITION  OF.    See  DESERTERS,  11, 12;  DISPOSITION  OF  EFFECTS. 
EFFICIENCY  REPORTS  ON  OFFICERS.    See  REPORTS  ON  FITNESS. 

EJUSDEM  GENERIS,  DOCTRINE  OF. 

1.  Definition — The  doctrine  of  ejusdem  generis  is  that  where  an  enumeration  of  specific 
things  is  followed  by  some  more  general  word  or  phrase/such  general  word  or  phrase 
is  to  be  held  to  refer  to  things  of  the  same  kind.  (Spalding  v.  People,  172  El.,  40,  49; 
49  N.  E.,  993,  995.) 

Where  general  words  follow  particular  ones,  the  rule  is  to  construe  the  former  as 
applicable  to  persons  or  things  eiusdem  generis.  This  rule  has  been  stated,  as  applied 
to  the  word  "other"  as  follows:  Where  a  statute,  or  other  document  enumerates 
several  classes  of  persons  or  things,  and  immediately  following  and  classed  with  such 
enumeration  the  clause  embraces  "other"  persons  or  things,  the  word  "other"  will 


EJUSDEM   GEXERIS.  203 

generally  be  read  as  "other  suah  like,"  so  that  persons  or  things  therein  comprised 
may  be  read  as  ejusdem  generis  with  and  not  of  a  quality  superior  to  or  different  from 
those  specifically  enumerated.  C.  M.  O.  21,  1910,  10. 

2.  Same — It  is  a  familiar  principle  of  construction  that  where  words  of  special  and  restricted 

meaning  or  application  are  followed  by  words  of  general  import,  the  latter  words  are 
intended  to  embrace  only  such  things  or  matters  as  are  similar  to  those  specifically 
mentioned.  But  this  rule  is  not  inflexible  and  is  subject  to  some  qualifications.  For 
example,  it  has  been  held  that  this  principle,  i.  e.,  that  of  ejusdem  generis,  does  not 
apply  when  the  particular  or  specific  words  or  terms  exhaust  the  whole  class  covered 
thereby,  and  that  in  such  a  case  the  general  words  or  expression  may  be  held  to  refer 
to  some  larger  or  different  class.  (26  A.  &  E.  Enc.,  610.) 

As  the  rule  is  elsewhere  stated:  The  words  "other"  or  "any  other"  following  an 
enumeration  of  particular  classes  are  therefore  to  be  read  as  "other  such  like"  and  to 
include  only  others  of  like  kind  or  character.  (36  Cyc. ,  1120. )  But  it  is  also  said  that 
the  principle  does  not  apply  "where  the  specific  words  embrace  all  objects  of  their 
class,  so  that  the  general  words  must  bear  a  different  meaning  from  the  specific  words 
or  be  meaningless."  (36  Cyc.,  1122.)  File  27231-34,  J.  A.  G.,  Apr.  25, 1911, 5.  See  also 
File  24482-34,  J.  A.  G.,  May  1, 1911,  14;  STATUTORY  CONSTRUCTION  AND  INTERPRE- 
TATION, 85. 

3.  Limitation — "The  rule  is  subject  to  the  limitation  that  where  the  particular  word  by 

which  the  general  word  is  preceded  was  inserted,  not  to  give  a  coloring  to  the  general 
word  but  for  a  distinct  object,  the  general  word  ought  to  govern."  (State  v.  Brod- 
erick,  7  Mo.  App.,  19,  20.)  File  26254-78,  J.  A.  G .,  July  24,  1908,  p.  2. 

ELOPERS.   See  ENLISTMENTS,  18;  MARINE  CORPS,  29. 

ELOPING. 

1.  Enlisted  men — Of  Marine  Corps  before  final  enlistment.    See  MARINE  CORPS,  ">Q. 

2.  Officer — A  married  officer  charged  with  enticing  a  young  girl  to  elope  with  him,  under 

"Scandalous  conduct  tending  to  the  destruction  of  good  morals."    C.  M.  O.  55, 1894. 

EMBEZZLEMENT. 

1.  Acquittal— Effect  on  financial  responsibility  of  accused.    C.  M.  O.  39,  1913,  11-12.    See 

also  EMBEZZLEMENT,  25  (p.  210). 

2.  Same — Evidence  necessary— Government  to  prove  misappropriation  or  negligence- 

Necessity  of  rule.    C.  M.  O.  39,  1913,  9.    See  also  EMBEZZLEMENT,  25. 

3.  Burden  of  proof — Authorities  hold  that  accused  must  satisfactorily  explain  shortage. 

C.  M.  O.  39,  1913,  5.    See  also  BURDEN  OF  PROOF,  4,  5;  EMBEZZLEMENT,  25. 

4.  Common  law — Embezzlement  is  unknown  to  the  common  law.    See  EMBEZZLE- 

MENT, 7. 

5.  Constitutionality  of  embezzlement  laws — Is  unquestioned  since  there  are  numer- 

ous other  laws  making  certain  acts  crimes  regardless  of  the  intent  of  the  person  com- 
mitting the  act.  For  a  recital  of  such  laws,  see  File  26251-3252,  J.  A.  G.,  Apr.  26, 
1910,  p.  13.  As  concerns  the  constitutionality  of  the  embezzlement  laws,  it  is  the 
duty  of  the  Executive  to  enforce  all  acts  of  Congress  until  such  acts  have  been  held 
unconstitutional  by  the  only  tribunal  which  is  authorized  to  pass  final  judgment 
thereon.  File  26251-3252,  J.  A.  G.,  Apr.  26,  1910. 

6.  Convert— Immaterial  whether  the  money  be  converted  by  the  accused  to  his  own 

use.    See  EMBEZZLEMENT,  7, 25. 

7.  Definitions— Embezzlement  is  a  purely  statutory  offense,  unknown  to  the  common 

law.  It  is  defined  (as  to  public  officers)  in  sections  87-92,  act  March  4,  1909  (35  Stat., 
1088,  1105),  which  superseded  sections  5488-5492,  R.  S.,  on  January  1,  1910.  File 
26251-3252,  J.  A.  G.,  Apr.  20,  1910. 

Congress  has  included  in  the  definition  of  embezzlement  many  acts  and  omissions 
by  disbursing  officers  of  the  Government  which  were  not  included  in  the  popular  un- 
derstanding of  that  crime.  C.  M.  O.  4,  1913,  6. 

Section  87  of  the  Criminal  Code,  forbids  the  withdrawal  of  public  money  "for 
any  purpose  not  prescribed  by  law,"  and  also  forbids  any  disbursing  officer  of  the 
United  States  to  convert  such'  money  in  any  manner  to  his  own  use.  C.  M.  O.  4, 
1913,  8. 

Embezzlement  is  defined  by  Bouvier  to  be  "the  fraudulent  appropriation  to  one's 
own  use  of  the  money  or  goods  intrusted  to  one's  care  by  another."  This  definition, 
generally  accepted  by  the  authorities,  is  applicable  to  ordinary  cases  of  embezzlement 
by  bank  officials,  treasurers  of  corporations,  and  the  like,  and  holds  good  wherever 
the  statutes  do  not  intervene  to  modify  it.  Bouvier  adds,  however:  "  Embezzlement 
being  a  statutory  offense,  reference  must  be  had  to  the  statutes  of  the  jurisdiction  for 


204  EMBEZZLEMENT. 

the  classes  of  persons  and  property  affected  by  tUem."  In  the  American  and  English 
Encyclopedia  of  Law  (vol.  5,  p.  496) ,  it  is  said  that ' '  an  indictment  for  embezzlement 
charging  the  crime  substantially  in  the  terms  of  the  statute  is  sufficient."  C.  M.  O. 
4, 1913,  21. 

Where  a  pay  officer  fails  to  render  his  accounts  as  required  by  law,  and  is  negligent  in 
the  care  of  public  money,  in  consequence  of  which  such  money  is  lost,  it  is  not  necessary 
to  prove  that  the  money  was  converted  by  the  officer  to  his  own  use,  or  that  he  enter- 
tained an  intent  to  defraud  the  United  States;  the  mere  failure  s  ifely  to  keep  and  ac- 
count for  public  money  being  embezzlement  unJer  the  law.  (Criminal  Code,  sees. 
87-92,  35  Stat.,  1088, 1105.)  File  26251-3252,  J.  A.  G.,  Apr.  26,  1910. 

Article  14  of  the  Articles  for  the  Government  of  the  Navy  provides  that — 

"Fine  and  imprisonment,  or  such  other  punishment  as  a  court-martial  may  adjudge, 
shall  be  inflicted  upon  any  person  in  the  naval  service  of  the  United  States  *  *  * 
who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  applies  to  his  own  use 
or  benefit,  or  wrongfully  and  knowingly  sells  or  disposes  of  any  ordnance,  arms,  equip- 
ments, ammunition,  clothing,  subsistence  stores,  money,  or  other  property  of  the 
United  States,  furnished  or  intended  for  the  military  or  naval  service  thereof  *  *  *." 

It  will  be  noted  that  this  article  merely  uses  the  word  "embezzles"  without  giving 
any  definition  thereof,  so  that  for  the  circumstances  which  will  constitute  the  offense 
under  the  article  in  question  information  must  be  sought  in  other  statutes  of  the 
United  States,  embezzlement  being  a  purely  statutory  offense  unknown  at  common 
law.  Recourse  is  accordingly  had  to  section  87-92  of  the  act  of  Congress  approved 
March  4,  1909  (35  Stat.  1088,  1105),  which  define  embezzlement  by  public  officers. 
These  sections,  which  on  January  1,  1910,  superseded  sections  5488-5492  of  the  Re- 
vised Statutes,  read  as  follows: 

"SEC.  87.  Whoever,  being  a  disbursing  officer  of  the  United  States,  or  a  person  act- 
tag  as  such,  shall  in  any  manner  convert  to  his  own  use,  or  loan  with  or  without  inter- 
est, or  deposit  in  any  place  or  in  any  manner,  except  as  authorized  by  law,  any  public 
money  intrusted  to  him;  or  shall,  for  any  purpose  not  prescribed  by  law,  withdraw 
from  the  Treasurer  or  any  assistant  treasurer,  or  any  authorized  depositary,  or  trans- 
fer, or  apply,  any  portion  of  the  public  money  intrusted  to  him;  shall  be  deemed  guilty 
of  an  embezzlement  of  the  money  so  converted,  loaned,  deposited,  withdrawn,  trans- 
ferred, or  applied,  and  shall  be  fined  not  more  than  the  amount  embezzled,  or  impris- 
oned not  more  than  ten  years,  or  both. 

SEC.  88.  If  the  Treasurer  of  the  United  States,  or  any  assistant  treasurer,  or  any 


of  the  moneys  not  s'o  safely  kept,  and  shall  be  fined  in  a  sum  equal  to  the  amount 
of  money  so  embezzled  and  imprisoned  not  more  than  ten  years 

"  SEC.  89.  Every  officer  or  other  person  charged  by  any  Act  of  Congress  with  the  safe- 
keeping of  the  puDlic  moneys,  who  shall  loan,  use,  or  convert  to  his  own  use.  or  shall 
deposit  in  any  Dank  or  exchange  for  other  funds,  except  as  specially  allowed  by  law, 
any  portion  of  the  public  moneys  intrusted  to  him  for  safekeeping,  shall  be  guilty  of 
embezzlement  of  the  money  so  loaned,  used,  converted,  deposited,  or  exchanged,  and 
shall  be  fined  in  a  sum  equal  to  the  amount  of  money  so  embezzled  and  imprisoned 
not  more  than  ten  years. 

"SEC.  90.  Every  officer  or  agent  of  the  United  States  who,  having  received  public 
mouev  which  he  is  not  authorized  to  retain  as  salary,  pay,  or  emolument,  fails  to  ren- 
der his  accounts  for  the  same  as  provided  by  law  shall  be  deemed  guilty  of  embezzle- 
ment, and  shall  be  fined  in  a  sum  equal  to  the  amount  of  the  money  embezzled  and 
imprisoned  not  more  than  ten  years. 

"SEC.  91.  Whoever,  having  money  of  the  United  States  in  his  possession  or  under 
his  control,  shall  fail  to  deposit  it  with  the  Treasurer,  or  some  assistant  treasurer,  or 
some  public  depositary  of  the  United  States,  when  required  so  to  do  by  the  Secretary  of 
the  Treasury,  or  the  head  of  any  other  proper  department,  or  by  the  accounting  officers 
of  the  Treasury,  shall  be  deemed  guilty  of  embezzlement  thereof,  and  shall  be  fined  in 
a  sum  equal  to  the  amount  of  money  embezzled  and  imprisoned  not  more  than  ten 
years. 

"SEC.  92.  The  provisions  of  the  five  preceding  sections  shall  be  construed  to  apply 
to  all  persons  charged  with  the  safekeeping,  transfer,  or  disbursement  of  the  public 
money,  whether  such  persons  be  indicted  as  receivers  or  depositaries  of  the  same." 
C.  M.  O.  4, 1913, 15-17. 


EMBEZZLEMENT.  205 

The  foregoing  sections,  it  will  be  noted,  do  not  prescribe  that  the  acts  specified  must 
have  been  done  "knowingly"  or  "intentionally,"  or  "willfully"  or  "fraudulently"; 
nor  do  they  contain  any  other  words  of  similar  import.  C.  M.  O.  4, 1913, 17. 

8.  Delay  In  depositing— A  mere  delav  in  depositing  is  embezzlement.    File  26251-3252, 

J.  A.  G.,  Apr.  26, 1910.    See  also  EMBEZZLEMENT,  18. 

9.  Disbursing  officers.   See  DISBURSING  OFFICERS;  PAY  OFFICERS. 

10.  Exchange  for  other  funds— It  appears  in  connection  with  the  facts  stated  in  speci- 

fication 1  of  the  first  (sic)  charge  that  the  accused  willfully  withdrew  from  the  assist- 
ant treasurer  of  the  United  States  at  New  York  Government  funds  for  the  purpose 
of  cashing  a  certificate  of  deposit  as  an  accommodation  to  a  personal  friend,"  this  being 
for  a  purpose  not  prescribed  by  law,  and  therefore  covered  by  the  second  clause  of 
section  87  of  the  code.  Such  transaction  also  appears  to  be  in  violation  of  the  provi- 
sion of  section  89  against  the  "exchange  for  other  funds,  except  as  specially  allowed 
by  law,"  of  a  portion  of  the  public  moneys  intrusted  to  such  an  officer  for  safe-keeping. 
C.  M.  6.  4, 1913.  51-52. 

11.  Falling  "safely  to  keep" — A  finding  of  the  facts  alleged  in  the  specification  proved 

will  justify  a  finding  of  the  entire  specification  proved.  Therefore,  if  the  facts  in  the 
specification  are  proved  it  would  be  improper  for  the  court  to  find  the  words  of 
description  added  to  the  specification  not  proved.  A  disbursing  officer,  therefore, 
who  fails  "safely  to  keep"  funds  intrusted  to  his  care  is  guilty  of  embezzlement. 
File  26251-3252,  J.  A.  G..  Apr.  26, 1910. 

12.  Same — The  contention  01  the  accused  was  that  he  had  left  his  safe  unlocked  and  that 

Government  funds  contained  therein  were  stolen  by  some  party  unknown.  Never- 
theless, under  the  broad  provisions  of  section  88  of  the  Criminal  Code  the  pay  officer 
was  convicted  of  embezzlement  for  failing  "safely  to  keep"  said  funds,  although 
evidence  was  not  available  to  show  misappropriation  by  the  accused  himself.  Sub- 
sequentlyj  after  the  trial  had  been  completed,  additional  evidence  was  secured, 
resulting  in  a  confession  by  the  accused  that  the  funds  had  been  used  by  himself 
for  private  purposes  and  the  defense  above  mentioned  concocted  to  evade  criminal 
responsibility.  Had  it  not  been  for  the  statutory  provisions  covering  his  case,  the 
accused  might  have  escaped  all  punishment  or  received  a  light  sentence  for  "Neglect 
of  duty."  C.  M.  O.  4,  1913,  6. 

13.  Same— By  the  express  terms  of  the  law,  any  of  the  officers  named  who  "fails  safely  to 

keep"  public  money  intrusted  to  him  for  safe-keeping,  transfer,  or  disbursement, 
"or  who  fails  to  render  his  accounts  for  the  same  as  provided  by  law,"  is  guilty  of 
embezzlement.  C.  M.  O.  4, 1913, 18. 

14.  Felonious— It  is  error  in  a  finding  that  the  accused  did  not  feloniously  embezzle,  but 

did  embezzle,  since  if  the  facts  proved  establish  a  felony,  then  the  crime  was  com- 
mitted feloniously.  But  the  court  might  take  into  consideration  in  the  sentence 
the  difference  between  technical  embezzlement  and  embezzlement  with  intent  to 
defraud.  C.  M.  O.  30,  1910,  7.  See  also  G.  C.  M.  Rec.  22271;  23082;  23461;  24017; 
24221;  24222.  But  see  ADEQUATE  SENTENCES,  3;  CLEMENCY,  13. 

15.  Intent — The  intent  of  the  officer,  whether  innocent  or  fraudulent,  enters  in  no  manner 

into  the  statutory  offense.  If  his  act  of  withdrawal,  application,  etc.,  of  the  funds 
is  simply  one  not  authorized  by  existing  law,  he  is  guilty  of  the  crime  here  defined 
by  Congress.  His  intent,  if  innocent,  may  perhaps  be  considered  in  mitigation  of 
punishment,  but  can  not  be  relied  upon  as  a  legal  bar  against  conviction.  The 
offense  created  by  this  act  belongs  to  the  class  known  as  mala  prohibita,  but  it  is 
upon  the  repression  of  this  class  of  offenses  that  the  safety  of  the  public  treasury 
largely  depends.  C.  M.  O.  4, 1913, 8. 

All  that  appears  to  be  required  to  constitute  a  violation  of  a  statute  of  this  kind 
is  that  the  defendant  should  have  intended  to  do  the  prohibited  act.  C.  M.  0. 4, 1913. 

16.  Same — Implied  by  negligence — Criminal  intent  to  commit  embezzlement  is  implied 

by  the  negligence  of  the  pay  officer  safely  to  keep  the  funds  intrusted  to  his  care. 
The  offense  may  be  complete  without  any  actual  embezzlement  of  money,  but  in 
the  failure  to  comply  with  the  direction  of  deposit  of  regulations  of  the  head  of  the 
proper  department. 

But  a  pav  officer  would  not  be  considered  as  civilly  liable  where  the  loss  of  public 
money  under  his  care  occurs  in  any  way  while  the  officer  was  in  line  of  duty  and 
free  from  fault,  such  as  loss  by  breaking  a  safe  in  the  daytime,  loss  from  a  train 'whUe 
in  motion,  failure  of  a  bank,  loss  by  fire;  while  relief  has  been  granted  in  several 
cases  for  loss  by  robbery.  Such  officer  can  bring  his  action  for  said  relief  before  the 
Court  of  Claims,  pursuant  to  R.  S.,  1059  and  1062. 

Any  negligence,  however  slight,  on  the  part  of  the  disbursing  officer  makes  him. 
guilty  of  embezzlement.  File  26251-3252,  J\  A.  G.,  Apr.  26, 1910;  C.  M.  O.  4, 1913. 


206  EMBEZZLEMENT. 

17.  Marking  checks  as  exchanged  for  cash— So  also  the  ease  with  which  disbursing 

officers  could  evade  substantial  punishment  for  misappropriation  of  Government 
funds  by  marking  checks  as  exchanged  for  cash,  and  contending  upon  discovery 
that  it  was  intended  to  replace  said  funds  at  some  later  date,  renders  it  absolutely 
imperative  that  all  laxity  and  irregularity  in  dealing  with  public  money  intrusted 
to  their  care  should  be  severely  dealt  with.  C.  M.  O.  4, 1913,  6. 

18.  Negligence — Any  negligence,  however  slight,  on  the  part  of  the  disbursing  officer  makes 

him  guilty  of  embezzlement.  It  is  immaterial  whether  the  money  be  converted  by 
him  to  his  own  use,  or  stolen  by  others  as  the  result  of  his  negligence,  or  whether  it  is 
still  in  his  possession  but  deposited  in  a  bank  or  other  place  not  specified  by  law,  or 
retained  innis  actual  custody  when  it  should  be  deposited  in  some  public  depositary, 
or  in  his  possession  but  not  accounted  for  as  required  by  law.  A  mere  delay  in  de- 
positing money  is  embezzlement.  File  26251-3252,  J.  A.  G..  Apr.  26, 1910,  8-9. 

19.  Officers— Charged  with.    C.  M.  0. 18, 1907;  38, 1907;  39, 1908;  17, 1915. 

20.  Overpayment  made  by  disbursing  officer  to  himself —Does  an  overpayment  made 

to  himself  from  public  funds  by  a  pay  officer  in  the  Navy  constitute  embezzlement 
where  it  appears  that  there  may  have  been  no  criminal  intent  involved,  but  the  pay 
officer  was  at  least  guilty  of  negligence  or  indifference  as  to  the  status  of  his  account. 
This  question  appears  to  be  answered  by  what  was  said  in  the  opinion  of  the  At- 
torney General,  dated  May  9, 1910  (28  Op.  A.  G.,  286),  assuming  that  the  negligence 
or  indifference  attributed  to  the  officer  was  such  as  to  indicate  a  willful  disregard  of 
the  duties  imposed  upon  him  by  law  with  respect  to  the  safe-keeping  of  the  moneys 
in  his  charge.  This  would  appear  to  be  in  violation  of  the  provisions  of  sections  87 
and  89  with  respect  to  public  officers  converting  public  moneys  to  their  own  use 
except  as  authorized  bv law.  C.  M.  O.  4, 1913,  52. 

21 .  Pay  officer — Guilty  of "  Embezzlement, "  even  though  funds  actually  taken  by  another, 

unless  himself  free  from  negligence  or  blame.  C.M.O.39, 1913, 9.  See  also  EMBEZZLE- 
MENT, 25. 

22.  Paymaster's  clerk— Charged  with.    C.  M.  O.  26, 1902;  4, 1907;  26, 1912. 

23.  Personal  use — The  action  of  a  pay  officer  of  the  Navy  in  willfully  drawing  public  funds 

for  his  personal  use  while  absent  from  his  station  and  duty  clearly  amounts  to  a  viola- 
tion of  the  provisions  of  sections  87  and  89  of  the  Criminal  Code  against  converting 
public  funds  to  his  own  use  except  as  authorized  by  law,  although  there  be  no  inten- 
tion on  his  part  to  defraud  the  United  States,  and  the  funds  withdrawn  are  subse- 
quently replaced.  C.  M.  O.  4,  1913,  52. 

24.  Prima  facie — When  shortage  is  proved  the  disbursing  officer  is  prima  facie  guilty  and 

must  show  what  has  become  of  the  missing  funds.    G.  C.  M.  Rec.  27899. 

For  example  of  case  where  "burden  of  proof"  devolves  upon  accused  and  where  he 
must  prove  nis  case  "beyond  any  reasonable  doubt,"  see  opinion  of  Mr.  Justice  Story 
in  U.  S.  v.  Hunt,  26  Fed.  Cas.  No.  15423,  p.  435.  See  also  G.  C.  M.  Rec.  27899;  C.  M.  O. 
39,  1913, 1;  EMBEZZLEMENT,  25. 

25.  Proof  of — The  department  returned  a  record  of  proceedings  to  the  court  with  the  follow- 

ing remarks: 

1.  The  accused  in  the  above-named  case  was  charged  with  I,  "  Embezzlement  in 
violation  of  article  14  of  the  Articles  for  the  Government  of  the  Navy;"  II.  "Rendering 
a  false  and  fraudulent  return;"  III,  "Neglect  of  duty;"  and  IV,  "Violation  of  a 
lawful  regulation  issued  by  the  Secretary  of  the  Navy"  (three  specifications). 

2.  The  court  found  the  specifications  of  the  first  three  charges  not  proved  and 
acquitted  the  accused  of  those  charges,  and  found  proved  two  specifications  of  the 
fourth  charge,  which  alleged  that  the  accused  unlawfully  allowed  certain  enlisted 
men  to  sleep  in  the  pay  office,  and  found  the  accused  guilty  of  said  fourth  charge. 

3.  The  judge  advocate  definitely  proved  an  existing  shortage  in  the  accounts  of  the 
accused,  amounting  to  $1,370.55;  thus  it  was  shown  that  the  accused  should  have  had 
on  hand  June  30, 1913,  $17.348.48,  whereas  in  fact  he  was  able  to  produce  onlv  the  sum 
of  $15,977.93,  and  was  unable  to  account  for  the  difference.    There  is  no  conflict  what- 
ever as  to  this  evidence,  as  the  record  (p.  22)  contains  the  following  entry: 

"COUNSEL  FOB  THE  ACCUSED.  We  admit  that  the  board  found  cash  on  hand 
$15,977.93;  and  we  admit  that  the  cash  as  per  account  current  should  have  been 
$17.348.48." 

The  shortage  thus  shown  to  exist  in  the  accounts  of  the  accused  was  in  no  manner 
explained  by  the  accused  or  the  witnesses  in  his  behalf.  The  question  is  therefore 
directly  presented  whether  in  this  state  of  the  case  the  court  should  have  found  the 
accused  guilty  of  "  Embezzlement "  as  charged. 


EMBEZZLEMENT.  207 

Article  14  of  the  Articles  (or  the  Government  of  the  Navy  (sec.  1624,  R.  S.)  pro- 
vides for  the  punishment  of  any  person  hi  the  naval  service  who  "embezzles  *  *  * 
any  ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence  stores,  money, 
or  other  property  of  the  United  States  furnished  or  intended  for  the  military  or  naval 
service  thereof."  As  held  by  the  Attorney  General  (C.  M.  O.  4, 1913,  28): 

"The  word  'embezzlement'  is  not  here  denned,  and  consequently  it  is  necessary 
to  look  to  the  offense  as  defined  in  the  penal  statutes  relating  to  United  States  officials 
who  are  charged  with  the  duty  of  holding  and  disbursing  funds  belonging  to  the 
Government  in  order  to  determine  of  what  elements  the  offense  consists." 

It  was  further  held  by  the  Attorney  General  (C.  M.  O.  4,  1913,  45)  that— 

"No  resort  can  be  had  to  the  definitions  of  embezzlement  given  in  the  laws  of  the 
several  States,  as  there  is  no  uniformity  in  the  State  statutes  upon  the  subject.  In 
many  States  a  fraudulent  intent  is  an  essential  ingredient  of  the  crime,  while  in  others 
it  is  not." 

4.  The  penal  statutes  relating  to  embezzlement  by  United  States  officials,  so  far  as 
applicable  to  the  present  case,  are  contained  in  sections  88  and  92  of  the  Federal  Crinf- 
inal  Code,  which  sections  read  as  follows: 

"  SEC.  88.  If  the  Treasurer  of  the  United  States  or  any  assistant  treasurer,  or  any 
public  depositary,  fails  safely  to  keep  all  moneys  deposited  by  any  disbursing  officer 
or  disbursing  agent,  as  well  as  all  moneys  deposited  by  any  receiver,  collector,  or  other 
person  having  money  of  the  United  States,  he  shall  be  deemed  guilty  of  embezzle- 
ment of  the  moneys  not  so  safely  kept,  and  shall  be  fined  in  a  sum  equal  to  the  amount 
of  money  so  embezzled  and  imprisoned  not  more  than  10  years. 

"SEC.  92.  The  provisions  of  the  five  preceding  sections  shall  be  construed  to  apply 
to  all  persons  charged  with  the  safe-keeping,  transfer,  or  disbursement  of  the  public 
money,  whether  such  persons  be  indicted  as  receivers  or  depositaries  of  the  same." 

5.  In  the  present  case  there  can  be  no  question  upon  the  evidence  before  the  court 
that  the  accused  failed  safely  to  keep  the  sum  of  $1,370.55  of  the  moneys  of  the  United 
States  which  were  intrusted  to  him  in  his  official  capacity  as  pay  officer  of  the  Buffalo; 
and  such  failure  on  his  part,  as  already  stated,  is  entirely  unexplained  by  the  defense. 
What  further  evidence  is  required  under  these  circumstances  to  support  a  finding 
that  the  accused  was  guilty  of  "  Embezzlement "  as  charged?    For  more  than  half  a 
century  it  has  been  held,  under  statutes  substantially  identical  with  those  now  in 
effect,  that  the  mere  failure  of  a  disbursing  officer  of  the  United  States  to  produce  or 
account  for  the  public  moneys  in  his  hands  when  required  so  to  do  constitutes  em- 
bezzlement, unless  such  officer  is  able  satisfactorily  to  explain  such  failure  or  to  show 
that  the  funds  which  he  could  not  produce  were,  without  fault  on  his  part,  lost  or 
stolen.    Thus,  under  date  of  January  3,  1867,  it  was  held  by  the  Judge  Advocate 
General  of  the  Army  that — 

"Section  5495,  R.  S.,  provides  that  the  refusal  of  any  person  charged  with  the  dis- 
bursement of  public  moneys  promptly  to  transfer  or  disburse  the  funds  in  his  hands, 
'upon  the  legal  requirement  of  an  authorized  officer,  shall  be  deemed,  upon  the  trial 
of  any  indictment  against  such  person  for  embezzlement,  as  prima  facie  evidence  of 
such  embezzlement.'  Applying  this  rule  to  a  military  case,  it  is  clear  that  in  the 
event  of  such  a  refusal  by  a  disbursing  officer  of  the  Army  theburdenof  proof  would  be 
upon  him  to  show  that  his  proceeding  was  justified,  and  that  it  would  not  be  for  the  prosecu- 
tion to  show  what  had  become  of  the  funds.  So,  where  an  acting  commissary  of  sub- 
sistence, on  being  relieved,  failed  to  turn  over  the  public  moneys  in  his  hands  to  his 
successor,  or  to  his  post  commander  when  ordered  to  do  so,  or  to  produce  such  moneys, 
exhibit  vouchers  for  the  same,  or  otherwise  account  for  their  use,  when  so  required  by 
his  department  commander:  Held,  That  he  was  properly  charged  with  and  convicted 
of  embezzlement  (the  embezzlement  now  prohibited  by  this  article).  R.  22,  548, 
January,  1867."  (Dig.  J.  A.  G..  Army,  1912,  p.  138  A  4.) 

In  the  case  cited,  the  Judge  Advocate  General  ol  the  Army  said : 

"The  burden  of  proof  is  by  this  act  thrown  upon  the  defendant  to  show  that  his 
retention  and  nonproduction  of  the  public  money  is  not  an  embezzlement.  If  he 
fails  to  do  this  the  court  is  warranted  in  finding,  and  indeed  must  find,  him  guilty  of 
the  charge. 

"The  accused  in  the  present  case  makes  no  effort  to  show  his  innocence,  but  rests 
simply  on  the  omission  on  the  part  of  the  prosecution  to  show  what  has  become  ot  the 
funds  which  he  contesses  freely  having  received  as  alleged.  He  is  therefore  properly 
and  legally  convicted." 

50756°— 17 14 


208  EMBEZZLEMENT. 

6.  The  foregoing  was  in  accordance  with  an  earlier  opinion  ol  the  Judge  Advocate 
General  of  the  Army,  rendered  November  22, 1S62,  in  which  it  was  held: 

"II  upon  formal  demand  made  this  officer  should  fail  or  reiuse  to  pay  over  or  account 
for  the  public  moneys  in  his  hands,  a  prima  lacie  case  of  embezzlement  would  be 
made  out  against  him;  but  it  would  be  only  a  prima  lacie  case  were  he  to  show  in 
his  defense  that  the  money  had  been  lost  or  fraudulently  or  feloniously  abstracted  from 
him,  the  animus  of  the  embezzlement  would  be  wanting  and  he  would  be  acquitted." 

7.  The  opinion  last  quoted  is  still  in  lorce,  as  shown  by  the  following  paragraph  in 
the  Digest  of  Opinions  of  the  Judge  Advocates  General  of  the  Army,  1912  (p.  541,  A 
12  b): 

"  It  is  a  defense  to  a  charge  under  article  62  of  the  embezzlement  defined  in  section 
5490,  R.  S.,  as  consisting  in  a  failure  to  safely  keep  public  moneys  by  an  officer  charged 
with  the  safe-keeping  of  the  same,  that  the  funds  alleged  to  have  been  embezzled  were, 
without  fault  on  the  part  of  the  accused,  lost  in  transportation  or  fraudulently  or  felo- 
niously abstracted.  R.  1.  435,  Nov.,  1862." 

8.  Decisions  of  the  civil  courts  are  in  accord  with  the  opinions  of  the  Judge  Advo- 
cate General  of  the  Army,  as  shown  by  the  following  cases: 

(a)  In  State  v.  Leonard,  Supreme  Court  of  Tennessee,  decided  1869  (46  Tenn.  (6 
Colds.),  308),  it  was  held: 

"The  objection  is  that  the  failure  and  refusing  to  pay  over  to  his  successor  is  not  a 
conversion  or  evidence  of  a  conversion  by  the  defendant  to  his  own  use  in  the  sense 
of  the  code;  section  470p.,  which  defines  the  offense. 

"The  objection  is  without  merit.  The  code,  section  4706,  enacts  that  if  any  person 
charged  with  the  safe-keeping,  collection,  and  disbursement  of  money  or  property 
belonging  to  the  State  or  any  county  use  any  part  of  said  money  or  property,  by  loan, 
investment,  or  otherwise,  without  authority  of  law,  or  convert  any  part  thereof  to 
his  own  use  in  any  way  whatever,  he  is  guilty  of  embezzlement. 

"  Failing  and  refusing  to  pay  over  the  money  to  his  successor  in  office  is,  unexplained, 
evidence  of  a  conversion  of  the  money  to  his  own  use,  and  if  proved  will  establish 
the  allegation  of  the  indictment  that  he  did  embezzle  and  convert  the  money  to  his  own 
use.  Failing  and  refusing  to  deliver  a  chattel,  upon  demand  of  the  person  entitled 
to  possession,  is  evidence  of  conversion,  in  the  civil  action  of  trover. 

"Of  course,  proof  may  be  made  by  the  defendant,  of  facts,  relieving  the  failure  and  refusal 
to  pay  of  its  felonious  character.  *  *  * 

"  The  duty  of  the  court  is  to  enforce  the  criminal  law,  and  not  to  search  for  unnatural 
circumstances  for  pretexts  or  means  to  screen  offenders  from  the  punishment  due  to 
their  crimes." 

(6)  This  case  was  cited  and  followed  by  the  same  court  in  1871  in  the  case  of  State  v. 
Cameron  (50  Tenn.  (3  Heisk.),  84). 

(c)  In  Commonwealth  v.  Levi,  Superior  Court  of  Pennsylvania,  decided  in  1910  (44 
Pa.  Super.  Ct.,  253),  it  was  held,  quoting  syllabus: 

"  On  the  trial  of  an  indictment  oi  an  executor  for  embezzlement,  the  inventory  and 
appraisement  oj  the  decedent's  estate  filed  by  the  defendant  in  the  office  of  the  register 
of  wills,  is  admissible  in  evidence;  as  is  also  proceedings  in  the  orphans'  court  and 
supreme  court  as  proof  of  what  property  of  the  estate  the  defendant  had  in  his 
hands  and  whir-h  he  should  legally  be  required  to  pay  to  the  distributees. 

"Such  evidence  does  not  prevent  the  defendant  from  showing,  ii  he  can,  that  he 
had  loft  the  money  in  any  manner  which  did  not  involve  malfeasance  on  his  part,  or  that 
he  had  through  an  honest  mistake  paid  the  money  to  parties  who  were  not  legally 
entitled  to  receive  it." 

In  the  course  ol  its  opinion  in  this  case  the  court  said: 

"  Conversion,  by  the  tnistee,  ol  a  trust  fund  to  any  other  use  than  that  of  the  cestui 
que  trust  is  prima  facie  fraudulent,  and  the  failure  of  the  trustee  to  pay  on  settlement 
of  his  account  is  evidence  of  conversion.  Commonwealth  v.  Kaufman,  9  Pa.  Superior 
Ct.,  310;  Commonwealth  v.  Beale,  19  Pa.  Superior  Ct.,  434;  Commonwealth  v.  King, 
35  Pa.  Superior  Ct.,  454." 

9.  In  other  words,  in  the  case  last  cited,  the  court  holds  that  when  evidence  is 
admitted  establishing  the  amount  of  funds  which  an  executor  had  in  his  hands  and 
is  required  to  pay  to  the  beneficiaries  of  a  will,  his  failure  to  pay  such  amount  on  settle- 
ment of  his  account  is  evidence  of  conversion;  and  that  the  lourden  devolves  upon  the 
executor  to  show,  if  he  can,  that  he  had  lost  the  money  in  some  manner  which  did  not 
involve  fault  on  his  part,  or  otherwise  to  explain  his  failure  to  pay  over  the  amount 
due.    (In  this  connection,  see  opinion  of  Mr.  Justice  Story,  in  U.  S. »'.  Hunt,  26  Fed. 
Cas.,  p.  435.] 


EMBEZZLEMENT.  209 

10.  The  Attorney  General's  opinion  of  May  9,  1910,  in  the  case  above  cited  (0.  M. 
O.  4,  1913,  2S)  is  entirely  in  consonance  with  the  earlier  decisions  to  which  reference 
has  been  made.    Thus,  in  his  opinion,  the  Attorney  General  said  (C.  M.  O.  No.  4, 
1913,  31): 

"  Without  here  undertaking  to  pass  upon  the  necessity  of  a  fraudulent  or  criminal 
intent  or  knowledge  upon  the  part  of  the  accused,  it  is  sufficient  to  say  that  if  such 
intent  or  knowledge  were  necessary,  their  absence,  under  the  positive  provisions  of 
this  statute,  would  be  a  mitter  of  defense." 

Here  it  will  be  seen  the  Attorney  General  holds  it  is  for  the  accused  to  prove  as  a 
"matter  of  defense"  that  the  money  was  lost  without  fault  on  his  part.  Continuing, 
the  Attorney  General  in  the  same  opinion  points  out  what  would  constitute  such  a 
"matter  of  defense"  as  to  entitle  the  accused  to  acquittal  after  a  deficit  has  been 
proved  by  the  Government  (C.  M.  O.  4, 1913,  35): 

"It  was  clearly  the  intention  of  Congress,  in  enacting  the  provisions  heretofore 
quoted,  requiring  the  safe-keeping  of  money  by  officials  intrusted  therewith,  that  the 
greatest  diligence  and  care  should  be  exercised  by  them,  and  that  every  precaution 
should  be  taken  to  safely  keep  and  account  for  the  same.  //  money  should  be  lost  by 
robbery,  or  fire,  or  by  any  accidental  means,  after  every  precaution  had  been  exercised 
by  the  official  having  it  in  his  possession,  it  would  indeed  be  a  harsh  rule  that  would  not 
only  hold  him  and  his  securities  liable  for  the  same,  but  would  confine  him  in  the 
penitentiary  for  its  loss." 

11.  Thus  the  Attorney  General's  opinion,  in  substance,  holds  that  if  Government 
funds  are  lost  without  fault  on  the  part  of  the  officer  intrusted  therewith  such  officer 
is  not  guilty  of  embezzlement  under  the  statutes;  but  that  it  is  for  the  accused  to 
show,  as  "a  matter  of  defense,"  that  th«  money  was  so  lost  without  fault  on  his  part, 
as.  for  example,  "by  robbery,  or  fire,  or  by  any  accidental  means."    Some  of  the 
other  decisions  above  cited,  it  will  be  noted,  hold  that  mere  evidence  of  an  existing 
shortage,  unless  satisfactorily  explained  by  the  defendant,  justifies  a  finding  that  he  is 
guilty  of  actual  conversion  of  the  funds  so  unaccounted  for.    In  the  present  case  it  is 
not  necessary  for  the  court  to  find  that  the  accused  actually  converted  the  funds  to 
his  own  use,  as  the  Federal  statute  is  broad  and  makes  mere  failure  safely  to  keep 
public  funds  embezzlement,  regardless  of  what  has  become  of  such  funds.    Thus  it  is 
settled  by  C.  M.  O.  4, 1913,  that,  even  though  the  evidence  should  apparently  estab- 
lish that  the  missing  funds  had  actually  been  stolen  by  another,  the  pav  officer  would 
nevertheless  be  guilty  of  embezzlement  under  the  statute  if  he  had  been  negligent 
in  safeguarding  the  money  in  his  charge;  and  the  same  thing  applies  where  there  is  no 
evidence  whatever  as  to  what  has  become  of  the  missing  funds  even  though  there 
should  be  no  evidence  of  negligence  on  the  part  of  the  accused.    In  other  words,  the 
accused  in  order  to  rebut  the  prosecution's  evidence  that  the  money  is  missing,  which 
is  prima  facie  evidence  of  embezzlement,  must  show  not  only  that  the  funds  were 
stolen  or  misappropriated  by  another,  but,  furthermore,  must  affirmatively  show 
that  such  theft  or  misappropriation  by  another  was  not  due  to  fault  on  the  part  of 
himself,  the  accused. 

12.  In  the  present  case  the  accused  has  failed  absolutely  to  show  what  became  of 
the  $1,370.55  of  Government  funds  for  which  he  was  responsible,  and  accordingly 
there  is  no  evidence  upon  which  the  court  can  base  a  finding,  first,  that  the  money 
was  stolen  by  a  person  other  than  the  accused  or  accidentally  lost;  and,  secondly, 
that  such  theft  or  accidental  loss  of  the  funds  was  without  negligence  on  the  part  of 
the  accused.    And  the  court,  according  to  the  above  authorities,  must  find  both  of 
these  facts  before  it  can  properly  render  a  verdict  of  not  guiltv.    The  accused  has 
had  his  "day  hi  court "  and  has  failed  to  make  any  defense  which  is  legally  sufficient 
to  the  charge  of  embezzlement.  .  It  is  not  enough  for  him  to  say  to  the  Government, 
as  it  were,  "It  is  true  that  I  have  failed  safely  to  keep  $1,370.55  of  Government  funds 
which  were  intrusted  to  me,  but  it  is  not  necessary  for  me  to  explain  what  has  become 
of  this  money;  you  must  prove  that  I  misappropriated  the  money  or  was  guilty  of 
such  negligence  or  indifference  in  its  care  as  to  indicate  a  willful  disregard  of  the  duties 
imposed  upon  me  by  la  w  with  respect  to  the  safe-keeping  of  the  moneys  in  my  charge . " 
Yet  this  is  precisely  the  attitude  of  the  accused  in  the  present  case,  as  shown  by  the 
following  extracts  from  the  argument  of  his  counsel: 

"He  is  charged  between  the  dates  of  April  1  and  June  30.  There  is  no  evidence 
before  this  court  to  show  that  this  safe  was  found  open  between  these  dates,  or  that 
he  didn't  do  everything  in  his  power  to  protect  his  combination  between  those  dates." 
(Rec.,p.98.) 


210  EMBEZZLEMENT. 

' '  There  is  nothing  in  the  testimony  that  shows  during  the  period  from  April  1  to  July 
1  that  there  was  any  failure,  any  neglect,  or  any  other  circumstance  that  would  indi- 
cate that  the  accused  has  not  safely  kept  this  money  as  well  as  he  could  with  the 
means  at  his  disposal."  (Rec.,  p.  124.) 

It  may  be  that  the  Government  has  not  shown  in  the  present  case  what  became  of 
the  missing  funds  or  that  the  accused  left  the  safe  open  during  the  dates  in  question  or 
was  otherwise  guilty  of  negligence  during  such  period.  But,  as  already  shown,  it 
was  not  necessary  for  the  Government  to  introduce  evidence  establishing  such  facts. 
The  judge  advocate  proved  that  the  accused  was  intrusted  with  certain  funds  by  the 
Government;  that  $1,370.55  of  such  funds  were  missing  and  unaccounted  for  by  the 
accused.  This  is  all  that  the  Government  could  reasonably  be  expected  to  prove  in 
the  average  case  of  embezzlement  and  is  all  that  the  law  requires.  It  is  the  duty  of 
the  accused  to  account  for  every  cent  of  the  Government  money  in  his  charge  or  to 
explain  satisfactorily  to  the  court  what  has  become  of  such  funds  and  definitely  estab- 
lish that  their  loss  was  not  due  to  fault  on  his  part.  The  logic  underlying  this  principle 
is  apparent.  Thus,  if  the  law  were  in  accordance  with  the  attitude  of  the  accused 
in  this  case,  it  would  be  possible  for  any  officer  charged  with  the  safe-keeping  of  Gov- 
ernment funds  to  enter  his  office,  lock  the  door,  open  the  safe,  abstract  the  contents, 
lock  the  safe,  and  proceed  to  conceal  the  money  thus  feloniously  taken  without  being 
found  guilty  of  embezzlement,  as  in  the  case  so  supposed  it  would  be  impossible  for 
the  Government  to  prove  what  had  become  of  the  funds  or  that  the  accused  had  been 
guilty  of  negligence  in  their  safe-keeping.  Accordingly,  the  findings  of  the  court,  if 
allowed  to  stand,  would  become  a  most  pernicious  precedent,  placing  a  premium  upon 
the  ingenuity  of  disbursing  officers  who  might  succeed  in  systematically  misappropri- 
ating Government  funds  without  leaving  even  a  modicum  of  telltale  evidence  in  their 
wake.  As  was  stated  by  the  Judge  Advocate  General  with  reference  to  the  laws  defin- 
ing embezzlement  by  Federal  officials  (C.  M.  O.  No.  4, 1913,  6): 

"Upon  consideration  the  nece_ssity  of  such  statutes  will  be  readily  understood  as  a 
safeguard  to  public  funds.  This  is'strongly  demonstrated  by  a  case  in  the  records 
of  this  department,  where  the  contention  of  the  accused  was  that  he  had  left  his  safe 
unlocked  and  that  Government  funds  contained  therein  were  stolen  by  some  party 
unknown.  Nevertheless,  under  the  broad  provisions  of  section  88  of  the  Criminal 
Code  the  pay  officer  was  convicted  of  embezzlement  for  failing  'safely  to  keep'  said 
funds,  although  evidence  was  not  available  to  show  misappropriation'by  the  accused 
himself.  Subsequently,  after  the  trial  had  been  completed,  additional  evidence 
was  secured,  resulting  in  a  confession  by  the  accused  that  the  funds  had  been  used  by 
himself  for  private  purposes  and  the  defense  above  mentioned  concocted  to  evade 
criminal  responsibility.  Had  it  not  been  for  the  statutory  provisions  covering  his 
case,  the  accused  might  have  escaped  all  punishment  or  received  a  light  sentence  for 
neglect  of  duty." 

*  *  *  *  * 

14.  The  department  of  course  does  not  want  to  suggest  that  the  court  in  this  case 
may  have  been  influenced  in  its  finding  by  sympathy  for  the  accused,  based  on  the 
consideration  that  he  would  be  sufficiently  punished  for  his  failure  to  safeguard  Gov- 
ernment funds  by  being  required  to  make  good  the  amount  of  his  shortage;  as  the 
members  of  the  court  are,  by  their  oath,  bound  to  try  the  case  without  "partiality  " 
and  "according  to  the  evidence  which  shall  come  before  the  court."  It  may,  however, 
be  remarked  that  the  accused,  according  to  his  own  testimony,  has  not  made  good 
the  amount  of  his  shortage  (Rec.,  p.  90);  the  reason  for  which,  according  to  the  record, 
is  that  he  had  been  "advised"  not  to  do  so  (Rec.,  p.  11).  Accordingly,  the  present 
case  differs  from  those  of  the  two  cases  published  in  C.  M.  0. 4, 1913,  above  referred  to, 
in  that  the  Government  has  actually  sustained  a  loss,  whereas  in  those  cases  the 
amount  of  the  funds  embezzled  was  in  each  instance  replaced.  Should  the  accused 
in  this  case  be  finally  acouitted  in  this  case  of  "embezzlement "  as  charged,  this  would 
also  necessarily  acquit  him  of  ne<*Iirence  in  connection  with  the  loss  of  the  funds  in 
question,  because,  as  already  explained,  such  negligence  by  a  public  officer  is  made 
embezzlement  by  law.  Therefore,  if  so  acquitted,  the  accused  would  have  a  strong 
basis  for  applying  to  the  Court  of  Claims  to  be  relieved  from  financial  responsibility 
for  this  loss  under  sections  145  and  147  of  the  United  States  Judicial  Code,  approved 
March  3, 1911  (36  Stat.,  11361.  which  sections  provide  as  follows: 

"SEC.  145.  The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine  the 
following  matters:  *  *  *  The  claim  of  any  pay  master,  quartermaster,  commissary 
of  subsistence,  or  other  disbursing  officer  of  the  United  States ,  or  of  his  administrators 
or  executors,  for  relief  from  responsibility  on  account  of  loss  by  capture  or  otherwise, 


EMBEZZLEMENT.  211 

while  in  the  line  of  his  duty,  of  Government  funds,  vouchers,  records,  or  papers  in 
his  charge,  and  for  which  such  officer  was  and  is  held  responsible. 

"  SEC.  147.  Whenever  the  Court  of  Claims  ascertains  the  facts  of  any  loss  by  any 
paymaster,  quartermaster,  commissary  of  subsistence,  or  other  disbursing  officer, 
in  the  cases  hereinbefore  provided,  to  nave  been  without  fault  or  negligence  on  the 
part  of  such  officer,  it  shall  make  a  decree  setting  forth  the  amount  thereof,  and  upon 
such  decree  the  proper  accounting  officers  of  the  Treasury  shall  allow  to  such  officer 
the  amount  so  decreed  as  a  credit  in  the  settlement  of  his  accounts." 

(a)  From  this  it  will  be  seen  that  if  the  law  were  otherwise  than  has  been  herein- 
before stated,  it  would  be  possible  in  the  supposititious  case  referred  to  in  paragraph  12 
(p.  10)  for  a  pay  officer  actually  to  embezzle  Government  funds  in  his  possession  and 
to  be  acquitted  because  the  Government  was  unable  to  prove  either  that  he  had 
taken  the  money  himself,  or  been  guilty  of  negligence  in  safeguarding  it;  and  such 
officer  who  had  so  actually  embezzled  Government  funds  could  go  to  the  Court  of 
Claims  and  apply  for  relief  from  financial  responsibility  for  the  amount  embezzled  on 
the  ground  that  his  acquittal  by  the  court-martial  of  embezzlement  necessarily  involved 
an  acquittal  of  such  negligence  as  the  law  makes  embezzlement.  While  the  question 
of  the  financial  responsibility  of  the  accused  does  not  enter  into  the  case  now  pend- 
ing before  the  court  of  which  you  are  president,  except  in  so  far  as  the  fact  that  he  has 
or  has  not  made  good  the  amount  of  his  shortage  may  affect  the  sentence  to  be  adjudged 
if  he  is  convicted,  at  the  same  time  the  department  is  required  to  consider  the  effect 
of  the  court's  finding  in  this  case  should  it  be  allowed  to  stand,  not  only  with  refer- 
ence to  the  criminal  and  financial  responsibility  of  the  accused  but  also  its  effect  as  a 
precedent,  giving  assurance  to  pay  officers  who  may  be  so  inclined  that  they  are  at 
liberty  to  make  such  use  of  Government  funds  as  they  please,  and  so  long  as  the 
department  is  unable  to  prove  that  they  actually  converted  such  funds  or  were  guilty 
of  gross  negligence  in  connection  therewith,  they  will  be  acquitted  by  court-martial 
of  embezzlement,  and  may  then  carry  the  record  of  the  court-martial  into  the  Court 
of  Claims  in  support  of  an  application  to  be  relieved  from  financial  responsibility  for 
the  amount  embezzled  or  not  safely  kept? 

15.  Counsel  for  the  accused  in  concluding  his  argument  (Rec.;  p.  105)  stated: 

"Is  there  any  doubt  at  all  whether  some  person,  then,  as  inexperienced  as  Mr. 
*  *  *  could  have  worked  that  combination  and  gotten  into  the  safe  and,  in  a  hurry 
grabbed  different  denominations  of  money  and  escaped  without  being  noticed,  espe- 
cially if  the  ship  were  at  sea,  when  most  of  the  officers  are  on  watch  and  not  around 
the  decks  in  the  vicinity  of  the  pay  department." 

In  this  connection  it  will  be  remembered  Ensign  *  *  *  [referred  to  by  counsel 
above]  testified  that  although  he  made  repeated  attempts,  he  did  not  succeed  in  open- 
ing the  safe  in  his  experiments;  and  another  witness  testified  that  "the  combination 
had  to  be  worked  exactly  or  the  safe  would  not  open";  that  he  did  not  know  what  an 
"expert"  could  do,  but  that  "the  average  person  would  have  a  great  deal  of  trouble 
in  getting  into  the  safe  without  knowing  the  combination."  Is  it  not  much  more 
reasonable  to  conclude,  instead  of  accepting  the  hypothesis  suggested  by  counsel  for 
the  accused,  that  the  accused  may  have  left  the  safe  unlocked,  and  that  some  per- 
son had  thus  been  enabled  to  get  into  the  safe  and  in  a  hurry  grab  different  denomina- 
tions of  money,  lock  the  safe,  and  escape  without  being  noticed?  In  such  a  case,  how 
could  it  be  expected  that  the  Government  would  be  able  to  prove  that  the  safe  had  been 
left  unlocked?  Had  the  accused  introduced  evidence  showing  that  there  were  "ex- 
perts" on  board  ship  able  to  open  the  safe  without  knowing  the  combination,  the 
situation  might  be  different.  Or  had  he  shown  that  he  discovered  evidences  that  the 
safe  or  his  money  had  been  tampered  with  and  immediately  reported  the  matter  to  his 
commanding  officer,  a  reasonable  doubt  might  possibly  have  existed  in  the  minds  of 
the  court  concerning  his  guilt.  But  the  court  must  know  that  ordinarily  safe  experts 
are  not  to  be  found  on  board  vessels  of  the  Navy  and  that  it  would  be  going  entirejy 
too  far  without  evidence  of  any  kind  in  support  thereof  to  conclude  that  the  safe  in 
question  had  been  rifled  by  an  expert.  Knowing  that  the  accused  had,  on  at  least 
one  occasion  while  pay  officer  of  the  Buffalo,  left  his  safe  unlocked;  that  his  conduct 
in  general  was  such  as  to  convince  his  commanding  officer  of  the  advisability  of  investi- 
gating his  official  accounts;  that  confessedly  he  did  not  inform  his  commanding  officer 
immediately  upon  discovering  the  shortage,  nor  until  the  afternoon  of  the  next  day; 
and  that  he  does  not  attempt  to  show  that  at  any  time  he  discovered  anything  sus- 
picious in  the  condition  of  his  safes  or  the  funds  kept  therein,  certainly  the  only  rea- 
sonable conclusion  is,  granting  that  the  accused  did  not  himself  misappropriate  the 


212  EMBEZZLEMENT. 

missing  funds,  that  he  was  guilty  of  negligence  which  enabled  some  other  person  to 
take  the  funds  in  question.  But  the  court  is  not  required  to  indulge  in  hypotheses; 
the  main  fact  is  that  the  funds  are  missing  and  that  the  accused  does  not  explain  in 
any  manner  whatever  what  has  become  of  them,  but  seeks  to  obtain  an  acquittal  on 
the  ground  that  the  Government  has  not  introduced  evidence  which  it  was  his  duty 
and  not  the  Government's  to  present  to  the  court.  And  the  authorities  above  quoted 
all  wisely  concur  in  the  conclusion  that  under  such  circumstances  a  public  officer  is 
not  entitled  to  acquittal. 

The  court  in  revision  revoked  its  former  finding  and  found  the  accused  "guilty" 
of  the  first  charge.  C.  M.  O.  39, 1913.  See  also  C.  M.  O.  4, 1913;  25, 1916;  File  26256- 
193:8,  J.  A.  G.,  Mar.  2, 1915. 

A  pay  officer  when  a  shortage  is  proved  is  guilty  of  embezzlement,  even  though  the 
funds  were  taken  by  another,  unless  he  is  free  from  neglect,  and  for  an  acquittal  evi- 
dence showing  absence  of  such  neglect  is  necessary,  and  the  accused  can  not  require 
the  Government  to  prove  misappropriation  or  negligence  nor  can  he  require  the  court 
to  indulge  in  hypothesis  to  supply  evidence  which  it  is  the  duty  of  the  accused  to 
introduce.  C.  M:  O.  25, 1916.  ' 

26.  Replacing  funds— The  fact  that  the  accused  intended  to  replace  the  money  with- 

drawn, and  did  subsequently  replace  it,  can  not  remove  his  guilt  of  a  crime  which 
had  been  completed  some  days  before  the  money  was  replaced.  The  remarks  of 
the  court  in  United  States  v.  Gilbert  (25  Fed.  Cas.  No.  15,  205)  apply  with  equal 
force  to  the  present  case.  That  was  an  indictment  under  a  statute  relating  to  post- 
masters, but  of  similar  import  to  section  87  of  the  Criminal  Code.  The  evidence 
showed  that  the  accused  at  the  time  of  using  money-order  funds  for  private  purposes 
intended  to  replace  them,  and  that  he  did  in  fact  subsequently  deposit  an  amount 
equal  to  that  which  was  charged  as  having  been  embezzled.  Nevertheless  he  was 
found  guilty  of  embezzlement,  the  court  saying: 

"It  is  obvious  that  the  enforcement  of  this  section  hi  all  its  strictness  is  essential  to 
this  class  of  Government  funds,  and  to  the  discouragement  of  postmasters  from  even 
temporarily  using  them  for  private  purposes.  The  intention  of  replacing  them, 
however  honestly  entertained,  can  not  be  accepted  as  an  excuse  or  apology  for  vio- 
lating the  law,  as  one  may  be  disappointed  by  unexpected  circumstances,  and  thus 
not  only  endanger  the  moneys  of  the  Government,  but  involve  himself  in  difficulty 
and  criminal  prosecution.  The  law  intends  that  funds  of  this  character  should  be 
kept  absolutely  separate  and  sacred,  as  the  best  method  not  only  of  keeping  the 
funds  themselves  secure,  but  of  guarding  the  officers  themselves  from  temptation 
and  delinquency.  The  diversion  of  money-order  funds  in  any  way  whatever  pro- 
hibited by  this  secton,  or  for  any  time  however  short,  constitutes  embezzlement 
under  this  act,  and  is  punishable  as  such."  C.  M.  O.  4,  1913,  7-8.  See  also  File 
5208:1,  J.  A.  G.,  July  2, 1906. 

27.  Shortage — When  shortage  is  proved,  pay  officer  is  prima  facie  guilty,  and  must  show, 

as  a  matter  of  defense,  absence  of  negligence  or  culpability  on  his  part.  Not  neces- 
sary for  the  Government  to  prove  what  has  become  of  the  missing  funds.  C.  M.  O. 
39,  1913,  1. 

28.  State  laws— Not  applicable.    C.  M.  O.  4,  1913,  28;  39,  1913,  5.    See  also  EMBEZZLE- 

MENT, 25  (p.  207,  line  11). 

29.  Statutory  offense — Embezzlement  is  hi  all  cases  a  statutory  offense.    C.  M.  O.  4, 

1913,  60.    See  also  EMBEZZLEMENT,  7. 

30.  Technical — Difference  between  technical  embezzlement  and  embezzlement  with  in- 

tent to  defraud  may  be  taken  into  consideration  in  adjudging  sentence.  C.  M.  0. 30, 
1910,  7.  See  also  EMBEZZLEMENT,  14.  But  see  ADEQUATE  SENTENCES,  3;  CLEM- 
ENCY, 13. 

31.  Theft  and  embezzlement— Distinguished.    G.  O.  143,  Oct.  28,  1869. 

EMBEZZLEMENT  OF  PRIVATE  MONEY. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  28,  1887.    See  also  G.  C.  M.  Rec.  32006. 

EMBEZZLEMENT  OF  PUBLIC  MONET. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  28, 1887. 

EMBEZZLEMENT  IN  VIOLATION  OF  ARTICLE  FOURTEEN  OF  THE  ARTI- 
CLES  FOR  THE   GOVERNMENT   OF  THE  NAVY. 

1.  Officers— Charged  with.    C.  M.  O.  27, 1887;  82, 1892;  7, 1894;  88,  1895;  74,  1897;  203, 1902; 

92,1903;  53,1935;  11,1908;  22,1910;  27,1911;  4,1913;  7,1913;  39,1913;  25,1916;  G.C.M. 
Rec.  16956;  13670;  6359. 

2.  Paymaster's  clerks— Charged  with.    C.  M.  O.  102,  1894;  173,  1902;  38,  1913;  G.  C.  M. 

Rec.  23461.    See  also  PAY  CLERKS  AND  CHIEF  PAY  CLERKS,  6. 


ENLISTMENTS.  213 

EMERGENCY. 

1.  Boilers.    See  C.  M.  O.  37,  1915. 

2.  Commanding  officer— Orders  in  case  of.    See  COLLISION,  19. 

3.  Officer  of  the  deck— Action  in  case  of.    C.  M.  O.  44,  1883.    See  also  OFFICER-OF-THE- 

DECK,  7, 10. 

4.  Repairs  to  vessels.    File  1052-97.    See  also  File  5177-96. 

5.  Senior  officer  actually  present  on  spot— Has  duty  of  taking  necessary  action  upon 

his  own  initiative  to  prevent  injury  to  lives  and  property  under  his  charge;  and  where 
the  emergency  is  immediate  and  urgent  he  is  not  justified  in  delaying  the  necessary 
action  because  of  an  order  issued  by  his  superior  officer  before  the  emergency  occurred 
and  under  a  materially  different  state  of  facts.  C.  M.  O.  37, 1915,  1,  3-7. 

EMINENT  DOMAIN.    See  File  6769-21,  J.  A.  G.,  July  19,  1911,  p.  9. 

EMOLUMENT.   See  also  PAY;  SALARIES. 

1.  Definition— "Emolument  is  the  profit  arising  from  office  or  employment;  that  which 
is  received  as  compensation  for  services,  or  which  is  annexed  to  the  possession  of 
office,  as  salary,  fees,  and  perquisites."  (3  W.  &  P.  2367.)  File  4924-435.  J.  A.  G., 
June  20, 1916. 

EMPLOYED. 

1.  Definition  and  use  of  word.    File  26516-38,  J.  A.  G.,  Dec.  3,  1910,  2. 

EMPLOYEES.    See  Crra,  EMPLOYEES. 

EMPLOYMENT. 

Retired  officer— Employment  of.    See  RETIRED  OFFICERS,  1,9, 18, 26, 28, 31, 34-40, 42, 44, 50, 
52,54-58,72. 

ENGINEER  OFFICER. 

1.  General  court-martial— Tried  by.    C.  M.  O.  9,  1915. 

ENLISTED  MEN. 

1.  Marine  corps— Appointment  as  officers  in.    See  APPOINTMENTS,  22. 

2.  Dental  work.    See  DENTAL  SERVICES. 

3.  Treatment  of — Enlisted  men  in  the  Navy,  the  same  as  Members  of  Congress,  mem- 

bers of  the  bar,  and  others  in  civil  life,  are  not  to  be  treated  as  criminals  until  their 
fuilt  has  been  established  by  due  process  of  law.  File  26524-259:  3,  Sec.  Navy,  May 
,  1916. 

4.  Office— Does  an  enlisted  man  hold  office?    See  "  OFFICE,"  10,  12;  DECORATIONS,  2. 

5.  Debt.    See  DEBTS. 

6.  Retired— Not  part  of  Navy.    See  RETIRED  ENLISTED  MEN,  9. 
ENLISTMENTS. 

1.  Aliens.   See  ALIENS,  3;  CITIZENSHIP,  12. 

2.  Antedating  of — Where  a  sergeant  of  marines  made  application  for  reenlistment  on 

September  28,  1905,  the  day  following  his  discharge,  and  was  not  enlisted  until  the 
following  day,  held,  that  in  view  of  the  fact  that  he  made  application  the  day  fol- 
lowing h.is  discharge,  that  his  physical  disqualification  was  properly  waived,  that 
he  was  held  to  service  during  the  time  his  physical  condition  was  under  consider- 
ation, actually  performing  his  customary  duties,  and  submitted  himself  to  naval 
authority  in  all  respects  until  the  completion  of  his  reenlistment  on  October  4,  1905, 
as  though  his  reenlistment  had  been  perfected  on  the  date  of  his  application,  he  may 
be  given  credit  for  service  from  September  28,  1905,  to  October  3,  1905,  both  dates 
being  inclusive.  File  7657-111,  J.  A.  G.,  September,  1911. 

3.  Citizenship — Necessity  of  citizenship  for  enlistment.    See  CITIZENSHIP,  12, 13. 

4.  Convicts,  of.    See  CONVICTS,  2. 

5.  Criminals— To  escape  punishment  by  civil  courts.    File  7657-178: 1,  Sec.  Navy,  Apr. 

19, 1913;  Congressional  Record,  Feb.  24, 1913,  3939-3940.  See  also  File  7657-396,  Sec. 
Navy,  Sept.  15, 1916;  CONVICTS,  2, 3. 

6.  Deserter — Unconvicted — Enlistment  of  unconvicted  deserters  not  advised.    See  DE- 

SERTERS, 13. 

7.  "Escaped  convicts."    See  CONVICTS,  3. 

8.  Expiration  of— The  department  has  authority  to  retain  a  general  court-martial  pris- 

oner to  serve  out  his  sentence  after  his  enlistment  has  expired  and  he  has  been  given 
a  discharge  from  the  service.  File  26504-102,  J.  A.  G.,  Mar.  1,  1910. 


214  ENLISTMENTS. 

A  general  court-martial  prisoner  may  be  tried  by  summary  court-martial  or 
deck  court  prior  to  the  expiration  of  his  period  of  enlistment  and  may  afterwards 
be  held  to  serve  out  the  sentence  imposed  by  such  courts  irrespective  of  whether  or 
not  his  sentence  by  general  court-martial  or  his  enlistment  expires  in  the  meantime. 
File  26504-100,  Sec.  Navy,  Dec.  21,  1910.  See  also  Walker's  Case,  American  Jurist' 
1830;  7  East,  376;  Com.  t>  Fox,  7  Penna.,  337;  BREAKING  ARREST,  3;  JURISDICTION, 
52,97. 

9.  Same — Unauthorized  absence  after.    See  ENLISTMENTS,  8;  16  J.  A.  G.  109.    See  also 
IN  HE  GRIMLEY,  137  U.  8.,  147. 

10.  Same— Jurisdiction  attaches  for  offenses  committed  prior  to  actual  discharge.     See 

JURISDICTION,  97. 

11.  Same— Retention  in  service.    See  File  7657-167,  J.  A.  G.,  Jan.  17,  1913;  26251-6297:  2; 

Sec.  Navy,  July  10, 1913. 

A  sergeant  of  marines  was  "retained  in  service  beyond  term  of  enlistment  to  make 
good  118  days  lost  by  absence  without  leave."  C.  M.  O.  28,  1910,  7. 

An  enlisted  man  shall  be  required  to  "make  good"  any  time  lost  during  current 
enlistment  in  excess  of  one  day  "on  account  of  sickness  or  disease  resulting  from  his 
own  intemperate  use  of  drugs  or  alcoholic  liquors,  or  other  misconduct"  only  where 
such  sickness  or  disease  was  contracted  on  or  subsequent  to  August  29,  1916.  (See 
act  of  Aug.  29,  1916,  39  Stat.  580.)  In  other  words,  where  the  sickness  or  disease 
which  results  in  loss  of  time  was  contracted  prior  to  August  29, 1916,  enlisted  men  will 
not  be  required  to  "make  good  "such  time.  File  7657-394:1,  Sec.  Navy,  Sept.  20, 1916; 
C.  M.  0. 33. 1916,  5-6;  See  also  MARINE  CORPS,  30. 

12.  Extension  of— The  act  of  August  22, 1912  (37  Stat.  331),  authorizes  extension  of  enlist- 

ment only  in  the  cases  of  men  enlisted  for  a  term  of  f9ur  years.  Therefore,  held,  that 
a  man  enlisted  for  minority  can  not  extend  his  enlistment  under  the  provisions  of 
said  act.  File  7657-182,  J.  A.  G.,  Apr.  14,  1913;  C.  M.  O.  29,  1915,  6. 

13.  Same — Credit  for  double  time — A  marine  serving  in  a  regular  four-year  term  of  enlist- 

ment entered  that  enlistment  prior  to  August  24,  1912,  and  is  receiving  credit  for 
double  time  toward  retirement  for  foreign  service;  should  he  extend  his  enlistment 
in  accordance  with  the  act  of  August  22, 1912  (37  Stat.  575).  for  a  period  of  one,  two, 
three,  or  four  years,  and  continue  on  foreign  service,  he  would  continue  to  be  entitled 
to  credit  for  double  time  while  serving  in  the  extension  of  his  present  enlistment. 
File  26507-233,  J.  A.  G.,  Sept.  29,  1915;  Sec.  Navy,  Sept.  30,  1915;  C.  M.  O.  31,  1915,  6. 

14.  Same— Good-conduct  medals.    See  GOOD-CONDUCT  MEDALS. 

15.  Same— 1-4893.    See  NAVAL  INSTRUCTIONS,  1913,  1-4893. 

16.  Minors.    See  APPRENTICES,  2;  MINORS,  9-14. 

17.  Minority— Error  in — Where  a  minor  signed  a  contract  of  enlistment,  reading  "I  oblige 

and  subject  myself  to  serve  during  minority,  until  January  1,  1915,"  the  legal  effect 
of  the  contract  was  to  bind  him  to  serve  until  he  arrived  at  the  age  of  21  years,  which 
the  evidence  in  this  case  shows  would  be  January  1,  1916.  The  date  on  which  he 
would  attain  his  majority,  given  In  the  contract  of  enlistment  and  consent  of  parent 
as  January  1,  1915;  must  be  rejected  as  an  error  in  computation.  Since  the  man 
stated  that  he  was  informed  by  the  recruiting  officer  that  his  enlistment  would  expire 
January  1,  1915,  which  statement  is  confirmed  by  the  date  given  in  the  shipping 
articles,  it  would  be  proper  to  give  the  man  his  discharge  at  once,  but  if  he  desires 
the  benefits  of  a  discharge  by  reason  of  expiration  of  enlistment  he  would  have  to 
serve  until  January  1, 1916.  File  7657-273,  J.  A.  G  Jan.  16, 1915;  C.  M.  O.  6  1915.  11. 

18.  Prosecution  of  applicants  fraudulently  obtaining  transportation — The  Secre- 

tary of  the  Navy  will  not  request  the  Attorney  General  to  instruct  United  States 
attorneys  to  institute  criminal  proceedings  against  applicants  for  enlistment  in  the 
Marine  Corps  alleged  to  have  fraudulently  obtained  Government  transportation. 
•    File  7657-180. 

19.  Termination  of— An  enlisted  man  can  not  terminate  his  enlistment  by  an  act  of  his 

own.  An  enlistment  is  terminated  by  death  or  discharge  only.  Any  offense  com- 
mitted by  the  enlisted  man  before  death  or  actual  discharge  is  within  the  jurisdic- 
tion of  a  naval  court-martial  and  he  may  be  tried  therefor  after  the  date  of  expiration 
of  enlistment.  File  26251-5447,  J.  A.  G.,  Dec.  8, 1911.  Seealso  BREAKING  ARREST.S. 

20.  Trial  by  summary  court-martial— Absence  from  station  and  duty  without  leave 

extending  over  expiration  of  enlistment.    File  26287-548,  J.  A.  G.,  July  2,  1910. 

21.  Violating  agreement— To  reenlist  on  same  ship  after  discharge— Tried  for  "conduct 

to  the  prejudice  of  good  order  smd  discipline."    See  DISCHARGE  OBTAINED  BY  FRAUD. 

22.  War  with  Spain.    See  WAR  WITH  SPAIN,  2. 

ENLISTMENT  PAPERS.    See  SERVICE  RECORDS. 


EPILEPSY.  215 

ENLISTMENT  RECORDS.    See  SERVICE  RECORDS. 

ENTICING  A  PRISONER  TO  ESCAPE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  48, 1889. 

"ENTIRELY  ACQUIT."    See  ACQUITTAL,  13. 

EPILEPSY. 

1.  Confinement — Of  an  epileptic  is  not  injurious  to  his  health — With  reference  to  the 

passible  effect  of  confinement  at  hard  labor  on  an  epileptic,  it  will  be  seen  from  the  fol- 
lowing that  such  would  be  of  benefit  rather  than  detrimental  to  the  health  of  an  accused 
supposedly  suffering  from  epilepsy:  An  expert  witness  for  the  accused  at  a  recent  trial 
testified,  "  I  do  not  know  how  irksome  life  would  be  in  a  jail.  I  believe  jails  vary.  I 
think  the  confinement  and  the  monotony  of  it  would  tend  to  make  him  worse.  The 
regular  habit  of  life  and  the  simple  food  that  he  would  get  there  would  be  of  the 
greatest  assistance  in  curing  his  ep'ilepsy."  This  expert  also  testified  that  if  the  ac- 
cused epileptic  were  his  patient  he  would  place  him  "somewhere  where  his  habits 
could  be  regulated.  I  think  that  is  of  first  importance  in  curing  epileptics.  The 
medical  treatment  of  it  is  secondary  to  that.  There  is  a  variety  of  places  where  such 
a  result  could  be  obtained.  I  suppose  any  hospital  or  sanitarium  could  furnish  the 
proper  environment  and  the  proper  restraint  on  his  food  and  habits."  In  this  con- 
nection the  Surgeon  General  of  the  Navy  reported  that  "there  is  no  reason  to  be- 
lieve that  the  punishment  imposed  on  him  by  general  court-martial  will  be  delete- 
rious to  his  health,  but,  with  the  regular  life,  careful  diet,  good  hygiene,  and  medical 
supervision  which  he  will  have  at  the"  prison,  "his  general  state  of  health  should  be 
improved."  (File  26251-9280:  40,  Sec.  Navy,  Mar.  27,  1915.)  A  report  made  by  the 
warden  of  the  prison  in  which  this  accused  was  confined,  about  four  months  after 
his  confinement  began,  reads  in  part:  "As  to  his  physical  and  mental  condition  will 
say  he  is  getting  along  fine.  *  *  *  Works  every  day,  no  sign  of  epileptic  as  yet." 
From  the  foregoing  it  will  readily  be  seen  that  the  confinement  of  an  epileptic 
does  not  appear  to  be  detrimental  either  to  his  mental  or  physical  well  being.  File 
26250-9280:  41  Sec.  Navy,  Apr.  17, 1915;  C.  M.  O.  51,  1914,  4-5. 

2.  Defense  of — Where  an  accused  knows  the  difference  between  right  and  wrong,  was 

conscious  of  having  done  wrong,  and  was  competent  to  conduct  his  defense  when 
tried  by  general  court-martial,  it  is  not  a  good  defense  for  him  to  prove  that  he  was 
afflicted  with  epilepsy,  which  it  was  claimed  had  so  far  affected  his  moral  sense  and 
weakened  his  will  as  to  render  him  not  fully  responsible  for  the  offenses  committed 
by  him.  G.  C.  M.  Rec.  No.  29422;  File  26251-9280;  C.  M.  O.  51,  1914,  4. 

3.  Same — An  accused  was  charged  with  "Fraudulent  enlistment,"  pleaded  "guilty," 

and  no  evidence  was  introduced  by  the  prosecution.  On  the  part  of  the  defense  a 
naval  medical  officer  was  introduced,  presumably  to  show  extenuating  circumstances, 
and  entirely  upon  his  evidence  the  court  acquitted  the  accused  on  the  ground  that 
at  the  time  he  committed  the  offense  he  was  insane.  The  department  returned 
the  case  for  revision,  with  proper  remarks,  but  the  court  respectfully  adhered  to  its 
findings  and  acquittal,  stating:  "In  view  of  the  testimony  of  the  medical  officer,  as 
noted  on  page  4  of  the  record,  to  the  effect  that  the  accused  was  subject  to  epileptic 
fits,  as  shown  by  his  (the  doctor's)  medical  journal,  and  further,  that  the  testimony 
of  the  doctor  who  examined  him  for  reenlistment,  as  noted  on  page  7  of  the  record, 
shows  that  he  was  unable  to  determine  any  mental  deficiency  at  the  time  of  enlist- 
ment, but  that  it  was  possible  that  an  epileptic  might  pass,  no  matter  how  rigid 
the  examination,  and  appear  mentally  sound  yet  have  an  attack  later,  the  court 
decides  respectfully  to  adhere  to  its  former  finding  and  acquittal." 

The  department  in  its  action  stated  in  part:  The  only  evidence  given  by  the 
doctor  who  testified  as  to  the  irresponsibility  of  the  accused  which  touches  in  any 
way  upon  epileptic  fits  is  to  the  effect  that,  in  looking  over  the  man's  record,  he 
found  that  he  had  been  entered  on  his  medical  journal  with  epilepsy,  having  had 
one  convulsion  on  board. 

That  on  this  single  occasion  just  mentioned,  and  the  two  instances  when  the  accused 
was  markedly  under  the  influence  of  alcohol,  morphine,  or  cocaine,  were  the  only 
times  on  which  the  accused  came  under  the  doctor's  observation. 

The  court  gives  as  a  further  reason  for  adhering  to  its  former  finding,  the  testimony 
of  the  examining  surgeon,  who  testified  that  he  was  unable  to  determine  any  mental 
deficiency  at  the  time  of  enlistment,  but  that  it  was  possible  that  an  epileptic  might 
pass,  no  matter  how  rigid  the  examination. 

In  the  opinion  of  the  department  the  idea  conveyed  in  the  first  part  of  this  reference 
is  to  a  certain  extent  misleading. 


216  EPILEPSY. 

What  the  doctor  did  state,  according  to  the  record,  was  that  there  was  nothing  in 
his,  the  accused's,  appearance  at  the  time  (referring  to  the  time  of  his  examination 
for  enlistment,  on  Sept.  30,  1909)  to  indicate  to  him  that  he  was  other  than  sound 
physically  and  mentally. 

In  answer  to  the  question,  "  Was  your  examination  of  the  accused  on  September 
30,  1909,  sufficiently  minute  to  determine  any  mental  deficiencies  that  might  have 
existed  in  the  accused,"  he  answered,  "Strictly  speaking,  no;"  and  further  states  in 
the  same  answer  that  it  is  possible  that  an  epileptic  may  pass  a  physical  examination, 
no  matter  how  rigid,  and  appear  mentally  sound  yet  have  an  attack  later. 

The  court  failed  to  further  observe  that  the  doctor  later  stated  that  he  thought  an 
epileptic  would  be  responsible  for  statements  made,  except  during  a  paroxysm. 

It  can  be  assumed  that;  at  the  time  of  the  doctor's  examination,  or  when  the  accused 
was  enlisted,  he  was  not  in  an  epileptic  paroxysm,  and  therefore  so  far  as  epilepsy  and 
the  resultant  mental  condition  is  concerned  the  accused  was  responsible  at  tne  time 
of  this  fraudulent  enlistment. 

The  department  in  its  letter  returning  the  case  to  the  court  very  carefully  set  forth 
the  only  condition  upon  which  an  accused  might  be  acquitted  by  the  court  because  of 
insanity,  and  that  it  must  be  conclusively  shown  that  he  was  insane  at  the  time  of  his 
committing  the  offense  charged. 

Notwithstanding  these  instructions  the  court  apparently  gave  no  heed  whatever 
to  the  direct  injunction  of  the  department,  as  is  shown  by  their  finding  on  revision,  in 
which  the  court  goes  on  record  that  it  adhered  to  its  former  finding  in  view  of  the'fact 
that  the  accused  was  subject  to  epileptic  fits,  as  shown  by  the  doctor's  medical  journal. 
The  one  fit  referred  to,  and  not  fits,  occurred  some  time  prior  to  May,  1909,  and  the 
accused  enlisted  in  October  of  the  same  year. 

It  is  thus  shown  from  the  finding  of  the  court  that  the  department's  letter  was 
entirely  ignored,  and  by  the  court  obstinately  adhering  to  their  opinion  rendered  a 
finding  wholly  inconsistent  with  the  evidence,  thereby  occasioning  a  miscarriage  of 
justice.  The  court  thus  signally  failed  in  its  duty,  and  its  conduct  is  subject  for 
censure. 

The  medical  record  shows  that  the  accused  was  admitted  to  the  sick  list  on  the 
Nebraska  on  November  4, 1908,  and  discharged  therefrom  the  next  day,  epilepsy  being 
assigned  as  the  disease. 

The  accused'senlistment  record  shows  that  he  was  515  days  serving  on  the  Nebraska, 
and  was  but  for  one  day  during  that  period  on  the  sick  list,  and  evidently  this  occasion 
is  the  one  of  November  4,  above  referred  to;  he  having  been  discharged  from  the 
Nebraska  on  May  10,  1909.  Considering  these  facts,  together  with  the  doctor's  testi- 
mony, it  shows  that  he  was  over  six  months  on  board  the  Nebraska  after  his  one 
attack,  and  had  no  other  attack  throughout  this  latter  period;  and  the  records  fail  to 
show  any  recommendation  made  by  the  doctor  as  the  result  of  this  one  attack,  even 
though  the  man  continued  on  board  six  months  thereafter. 

The  department  is  aware  that  these  facts  just  referred  to  were  not  brought  out  in 
evidence,  but  they  were  all  available  at  the  time  of  the  trial,  and  could  and  should 
have  been  brought  forward  before  the  court  took  the  action  it  did. 

The  court,  by  adhering  to  its  original  finding,  causes  a  miscarriage  of  justice,  permits 
the  accused  to  escape  merited  punishment,  and  by  neglecting  their  duty  becomes 
responsible  for  the  injurious  effect  thus  caused  to  the  discipline  of  the  naval  service. 

The  proceedings,  finding,  and  sentence  in  this  case  were  disapproved  by  the  depart- 
ment, and  it  was  ordered  that  the  accused  be  released  from  arrest,  and,  as  an  entirely 
separate  and  independent  proceeding,  discharged  from  the  service  as  undesirable. 
C.  M.  O.  42,  1909,  13-15. 

4.  Ensign— Retired  on  furlough  pay.    File  26253-445. 

5.  Memorandum  on.    File  26251-9280:43. 

EPITHETS. 

1.  Officer,  by — The  use  of  a  vile  epithet  by  an  officer  indicates  an  inexcusably  unclean 
habit  of  thought  and  speech.  C.  M.  0. 18,  1910,  2.  See  also  OFFICERS,  122. 

EPSOM  SALTS. 

1.  Bichloride  of  mercury — Administered  by  mistake  instead  of.  C.  M.  O.6, 1915, 12.  See 
also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  75. 

"EQUIPAGE." 

1.  Definition — The  word  "equipage"  refers  to  the  "outfit  of  a  ship"  and  supplies  of  all 
kinds  for  the  shin,  and  not  to  provisions  and  other  consumable  articles  for  those  who 
navigate  or  arc  transported  in  her.  File  24482-31,  J.  A.  G.,  Feb.  17,  1911;  24482-34, 
J.  A.  G.,  May  1,  1911. 


ESTOPPEL.  217 

ERASURES. 

1.  Findings— Must  be  free  from.    C.  M.  O.  55,  1910,  8-9. 

2.  Sentence— Must  be  free  from.    G.  C.  M.  Rec.  23760. 

3.  Same — Although  an  erasure  in  the  body  of  the  record  of  proceedings  of  a  summary 

court-martial  is  not  deemed  an  error  of  sufficient  gravity  to  warrant  the  disapproval 
of  the  sentence,  such  an  error  in  the  sentence  itself  is  a  grave  defect  and  in  some  cases 
the  department  has  disapproved  on  that  account.  8.  C.  M.  Rec.  22726,  Sept.  20, 
1897. 

ERRORS  IN  COURT-MARTIAL  ORDERS.    See  also  COURT-MARTIAL  ORDERS. 

1.  Date  of— Should  be  dated  as  of  final  action.    See  COURT-MARTIAL  ORDERS,  6. 

2.  Same— C.  M.  O.  22, 18%,  is  dated  "  February  19, 1895, "  instead  of "  February  19, 1896. " 

See  COURT-MARTIAL  ORDERS,  7. 

3.  Same— C.  M.  0. 15, 1916,  erroneously  dated  C.  M.  0. 15, 1916. 

ERRORS  OF  COURT  IN  FAVOR  OF  ACCUSED.    C.  M.  0. 12, 1904;  20, 1905. 
ERROR  WHICH  DID  NOT  INVALIDATE.    C.  M.  O.  22, 1915,  6. 

ERROR  WITHOUT  INJURY.    See  C.  M.  O.  120,  1898;  50,  1899;  50,  1900;  155,  1900;  181, 
1901;  19, 1919, 5;  48, 1915.    See  also  ADJOURNMENT  or  COURTS-MARTIAL,  2,3. 

ESCAPE. 

1.  Breaking  arrest— Was  designated  as  escape  at  common  law.    File  26262-1065,  J.  A. 

G.  See  also  BREAKING  ARREST,  6. 

2.  Definition— The  evidence  here,  so  far  as  it  goes,  tends  to  indicate  that  the  accused  did 

not  understand  that  he  was  placed  under  arrest.  He  "seemed  to  give  no  heed"  to 
the  action  and  words  of  the  master-at-arms,  and  while  it  appears  that  he  ran  awaj 
and  could  not  afterwards  be  found,  this  may  very  naturally  have  been  due  to  his 
desire  to  escape  from  a  hostile  crowd  rather  than  an  intention  to  break  arrest.  "  It 
would  seem  that  there  must  be  a  criminal  intent  to  evade  the  due  course  of  justice" 
(16  Cyc.,  541)  in  order  to  render  one  guilty  of  "escape,"  which  is  the  common-law 
designation  of  the  offense  specified  against  the  accused  in  this  case.  "An  intent 
to  escape  is  necessary  to  constitute  the  offense  of  escape."  (2  Arch.  Grim.  Pr.  and 
PI.,  1074.)  The  _fact  that  the  accused  voluntarily  returned  to  his  ship  the  next  day 
further  tends  to  indicate  that  he  was  not  conscious  that  he  was  placed  under  arrest, 
and  intended  merely  to  escape  from  the  vicinity  of  the  crowd.  The  evidence  is  not 
sufficient,  in  the  department's  opinion,  to  show  beyond  a  reasonable  doubt  that  the 
accused  was  conscious  that  he  was  placed  under  arrest  by  the  master-at-arms.  and 
that,  in  leaving  the  place  where  he  had  been  left  by  the  master-at-arms  without  being 
guarded,  he  had  a  criminal  intent  to  evade  the  course  of  justice,  particularly  in  view 
of  the  fact  that  he  voluntarily  returned  to  his  ship  within  a  short  time.  The  depart- 
ment feels  less  reluctance  in  arriving  at  this  conclusion  because  of  the  circumstances, 
which  plainly  show  that,  even  had  the  offense  charged  against  the  accused  in  this 
regard  been  proved,  it  would  constitute  at  most  a  technical  breaking  of  arrest  rather 
than  the  offense  of  forcibly  and  will  full  y  escaping  from  duly  constituted  authority  after 
having  been  regularly  placed  under  arrest  in  the  usual  manner,  which  is  the  offense 
commonly  implied  by  this  charge.  C.  M.  O.  7,  1911,  12.  See  also  BREAKING  AR- 
REST, 14. 

3.  Desertion— Escape  and  unauthorized  absence  as  proof  of  specific  intent  to  desert.    C. 

M.  O.  61, 1894,  2. 

4.  "Enticing  a  prisoner  to  escape"— Enlisted  man  charged  with.    C.  M.  O.  48,  1889. 

5.  "Escaped  convict."    See  CONVICTS,  3. 

6.  Prisoners— Duty  of  guard.    See  MANSLAUGHTER,  9. 

7.  Same— Accidental  killing  of  innocent  third  party  by  member  of  guard  when  shooting 

at  escaping  prisoner.  See  MANSLAUGHTER,  9. 

ESTOPPEL. 

1.  Accused— Failing  to  object  at  proper  time.  C.  M.  O.  6, 1915, 6.  Seealso  EVIDENCE,  79-84; 

JUDGE  ADVOCATE,  105. 

2.  Challenges — Where  the  judge  advocate  challenges  a  member  and  counsel  for  the  ac- 

cused objected,  the  accused  is  estopped  to  complain  of  the  court's  ruling  which  did 
not  sustain  the  challenge.  C.  M.  O.  128,  1905,  4.  See  also  CAHLLENGES,  9. 

3.  Definition.    See  WORDS  AND  PHRASES. 

4.  Fraudulent  enlistment— Accused  estopped  to  deny  fraudulent  enlistment  when  he 

is  being  tried  for  offense,  etc.    File  7657-132,  Jan.  9",  1911. 

5.  General  court-martial — Doctrine  of  estoppel  as  applied  to.    See  G.  C.  M.  Rec.  23368. 


218  ESTOPPEL. 

6.  Irregular  proceedings — A  prisoner  on  trial  under  our  laws  has  no  right  to  stand  by  and 

suffer  irregular  proceedings  to  take  place,  and  then  ask  to  have  the  proceedings  re- 
versed on  error  on  account  of  such  irregularities.  Thelaw,  by  furnishing  him  with  coun- 
sel to  defend  him,  has  placed  him  on  the  same  platform  with  all  other  defendants,  and 
if  he  neglects  in  proper  time  to  insist  on  his  rights,  he  waives  them.  (McKinney  v. 
People.  17  111.,  556;  3  Rice  oh  Evidence,  259.)  C.  M.  O.  31,  1911,  5. 

7.  Timely  objections — Where  the  accused  or  his  counsel  failed  to  make  timely  objection 

to  the  presence  of  a  judge  advocate  during  "closed  court"  the  department  stated: 
"The  accused,  who  was  represented  by  able  counsel  at  his  trial,  not  having  objected 
to  the  alleged  incompleteness  of  the  record  at  the  proper  time,  is  now  estopped  to 
urge  that  therecord  is  incorrect."  C.M.  O.6, 1915,6.  Seealso  JUDGE  ADVOCATE,  105. 

8.  Waiver  of  allowances  by  enlisted  men — An  enlisted  man  is  estopped  by  virtue  of  a 

waiver  signed  to  claim  reimbursement  for  transportation  and  subsistence  denied  him. 
File  13673-1442,  J.  A.  G.,  Nov.  22,  1911,  pp.  10,  14.  Seealso  ALLOWANCES,  14. 

9.  Witnesses  sworn  by  judge  advocate — In  the  case  of  Commodore  Barron  in  1807,  the 

witnesses  were  sworn  by  the  judge  advocate,  although  the  statute  then  in  force  pro- 
vided that  the  oath  should  be  administered  by  the  president  of  the  court.  (Harwood 
on  Naval  Courts-Martial,  1867,  p.  94.)  In  commenting  upon  this  fact  De  Hart,  in 
his  work  on  Military  Law  (1861),  states  at  page  149,  in  a  note,  "Of  course  there  was 
no  judicial  oath  taken,  and  consequently  no  valid  evidence  heard." 

The  Barron  case  was  referred  to  the  Attorney  General  in  1843,  and  an  opinion  was 
asked  upon  the  following  questions: 

"First.  Does  the  fact  that  the  witnesses  were  sworn  by  the  judge  advocate,  and 
not  by  the  president,  there  being  no  objection  at  the  time,  vitiate  the  proceedings? 

"  Second.  If  yes,  what  relief  can  now  be  given?  " 

The  Attorney  General,  in  holding  that  there  was  "no  remedy  which  the  executive 
department  can  afford  in  the  premises,"  said  significantly  (4  Op.  A.  G.,  171): 

"It  is  a  vain  conceit  that  because  the  proceedings  are  irregular,  and  fatally  irregular 
(if  the  exception  be  taken  in  proper  time),  therefore  the  judgment  once  suffered  to  be 
entered  up  is  void.  Thus  there  are  many  things  *  *  *  in  the  conduct  of  a  trial 
that  make  the  verdict  void;  yet,  if  advantage  be  not  taken  of  them  by  motion  in 
arrest  of  judgment,  no  writ  of  error  lies,  even  where  there  is  a  competent  court  of 
errors  (Rob.  Abr..  783j4,Cro.  Eliz.,616),anditis  very  proper  it  should  be  so;  *  *  * 
and  the  repose  of  society, and  the  putting  an  end  to  controversy  and  litigation,  are 
more  desirable  than  mere  accuracy  of  procedure,  or  even  the  justice  of  a  particular 
case — not  to  mention  that  acquiescence  implies  consent,  ind  consent  cures  error."  See 
EVIDENCE,  84. 

EVADING  DUTY. 

l.  How  charged.    See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  12. 

EVIDENCE. 

1.  Accused,  of.    See  WITNESSES,  l-ll. 

2.  Same— Absence  of  during  taking  of  testimonv.    See  ACCUSED,  1-9. 

3.  Acquittal— Because  of  lack  of  evidence.    C.  M.  O.  25,  1909,  1;  26,  1909,  1. 

4.  Additional— Warranting  exercise  of,  clemency.    See  CLEMENCY,  2. 

5.  Admissions.    See  ADMISSIONS. 

6.  Arresting  accused,  person — Whenever  practicable,  the  evidence  of  a  person  making 

an  arrest  should  be  corroborated  by  other  evidence,  particularly  when  there  are  nu- 
merous witnesses  thereto.  C.  M.  0. 7, 1911, 10.  Seealso  AKKEST,  17;  EVIDENCE,  33-34. 

7.  "Best  evidence."    See  C.  M.  O.  28,  1909,  3;  37,  1909,  4;  47,  1910,  4,  6;  49,  1910,  10;  52, 

1910,  3. 

8.  "Best  evidence"  rule.    See  CARBON  COPIES;  WORDS  AND  PHRASES. 

9.  "Better  evidence"— Court  should  call  for  it  if  it  is  available.    C.  M.  O.  28,  1909,  3;  37, 

1909.  5,  9. 

10.  Board  of  Investigation — As  evidence.    See  BOARDS  OF  INVESTIGATION,  5-8. 

11.  Burden  of  Proof.    See  BURDEN  OF  PROOF. 

12.  Character — The  department  has  repeatedly  held  that  witnesses  will  not  besubpoanaed 

from  other  stations  at  Government  expense  where  it  does  not  appear  that  any  such 
witness  "has  personal  knowledge  of  the  facts  at  issue  before  the  court,"  but  merely 
that  their  testimony  is  desired  either  as  experts  or  as  to  character.  These  principles 
were  stated  in  the  department's  letter  of  July  5, 1913,  to  the  jud.?e  advocate  of  a  general 
court-martial  at  the  navy  yard,  Norfolk,  Va.,  convened  for  the  trial  of  certain  special 
cases  (file  2(3251  -7777:3).  In  said  letter  it  is  stated  in  part: 

"Under  no  circumstances  will  the  department  subpoena  from  other  stations,  at 
Government  expense,  officers  to  give  expert  testimony,  either  for  the  prosecution 


EVIDENCE.  219 

or  the  defense,  when  there  are  other  officers  on  duty  at  the  place  of  the  trial  whose 
service  should  render  them  fully  competent  to  give  such  testimony.  Furthermore. 
in  accordance  with  the  Navy  Regulations  [1913,  R-702(2)J,  when  a  staff  officer  is  tried 
by  general  court-martial,  at  least  one-third  of  the  court  is  composed  of  officers  of  the 
same  corps  as  the  accused,  and  this  practice  has  been  followed  in  the  present  case. 
Such  members  of  the  court  may  themselves  qualify  as  experts  concerning  matters, 
pertaining  to  the  duties  of  their  corps,  and  testify  accordingly  as  witnesses  either 
for  the  prosecution  or  the  defense. 

"  If  the  testimony  of  particular  officers  is  desired  as  to  the  character  of  the  accused 
you  are  informed  that  the  best  evidence  on  this  point  is  the  official  record  of  the 
accused,  which  has  been  forwarded  to  you  in  connection  with  this  case."  C.  M.  O. 
1,  1914,  5,  7. 

The  recital  of  a  conversation  in  which  the  character  of  the  accused  is  assailed 
is,  besides  being  hearsay,  directly  in  conflict  with  the  well-known  rule  of  evidence 
that  the  prosecution  has  no  right  to  attack  the  character  of  the  accused  or  to  introduce 
evidence  showing  bad  character  unless  the  accused  himself  has  put  his  character  in 
issue.  C.  M.  O.  57, 1897,  2. 

In  one  case  the  department  stated:  It  appears  that  in  testifying  for  the  prose- 
cution an  officer  referred  incidentally  to  the  fact  that  the  accused  had  been  tried  by 
summary  court-martial.  Strictly  speaking,  this  testimony  was  not  proper,  but  it  was 
evidently  given  inadvertently,  and  is  not  of  such  a  character  as  to  affect  the  proceed- 
ings. C.  M.  0.33,1899, 1. 

13.  Same — The  accused  pleaded  not  guilty  to  the  charge  of "  Desertion  "  preferred  against 

him  and  the  specification  thereunder.  The  evidence  adduced  to  establish  said  charge 
consisted  solely  of  the  testimony  of  the  judge  advocate  of  the  court,  who  was  also  com- 
manding officer  of  the  accused.  This  officer,  in  answer  to  a  question,  made  the  fol- 
lowing statement  in  the  course  of  his  testimony: 

A  representative  of  the  sheriff  in  Olympia,  "in  turning  over  the  accused  to  me, 
reported  that  the  accused  had  been  arrested  in  Olympia,  Washington,  soon  after 
March  19, 1902,  for  stealing  a  watch ;  that  he  had  been  convicted,  had  served  a  sentence 
of  25  days,  and  had  been  released,  and  then  rearrested,  soon  after  his  release,  upon  the 
receipt  of  my  offer  of  reward." 

So  much  of  the  above  testimony  as  relates  to  the  offense  for  which  the  accused  had 
been  arrested  and  punished  by  the  civil  authorities  was  clearly  inadmissible,  as  it 
was  irrelevant  to  the  case  being  tried  and  was,  moreover,  prejudicial  to  the  rights  of 
the  accused,  who  had  not  in  any  way  placed  his  general  character  in  issue. 

Finally,  the  court  concluded  its  examination  of  the  judge  advocate  by  asking  the 
following  question: 

' '  What  has  been  the  general  character  of  the  accused  while  serving  at  this  station? ' ' 
the  answer  to  which  question  was  in  part  as  follows: 

"He  has  quite  frequently  been  in  trouble  for  infringements  of  regulations." 

Here  again  a  manifest  injustice  was  done  the  accused  by  the  court,  which  not  only 
admitted,  but  expressly  called  for  evidence  affecting  his  former  reputation  and  char- 
acter before  the  same  had  been  made  a  part  of  the  issue  by  the  accused  himself. 

The  department  held  that  the  proceedings  above  set  forth  were  so  plainly  violative 
of  the  fundamental  principles  of  law  and  justice  that  the  accused  can  not  be  said  to 
have  had  a  fair  trial  on  this  occasion,  and  that,  irrespective  of  the  question  whether 
his  guilt  of  the  offense  charged  was  established  by  such  portions  of  the  evidence  as 
were  competent,  he  ought  not  to  stand  convicted  of  and  be  punished  for  any  offense 
as  the  result  of  a  trial  conducted  as  was  the  one  under  consideration.  Accordingly 
the  proceedings,  finding,  and  sentence  were  set  aside.  C.  M.  O.  91, 1902. 

14.  Same — In  one  case  the  department  stated:  It  appears  that  the  judge  advocate  intro- 

duced, and  the  court  accepted,  as  evidence  the  conduct  record  of  the  accused,  which 
action  was  improper,  inasmuch  as  the  accused  had  not  during  the  trial  put  his  charac- 
ter in  issue.  In  view  of  this  error  on  the  part  of  thecourt,  the  effect  of  which  must  have 
been  detrimental  to  the  interests  of  the  accused,  the  proceedings,  findings,  and  sen- 
tence in  the  case  have  been  disapproved.  C.  M.  O.  96,  1898.  But  see  SUMMARY 
COUETS-MARTIAL,  13. 

15.  Same-;- Accused  pleaded  guilty,  and  after  the  finding  of  the  court  the  judge  advocate 

was  instructed  to  introduce  evidence  of  previous  convictions,  if  any  existed,  to  the 
admission  of  which  the  judge  advocate  raised  the  objection  that  as  the  accused  had 
not  placed  his  character  in  issue,  the  evidence  called  for  was  not  admissible.  This 
objection  was  overruled  by  the  court.  The  Navy  Regulations  [Navy  Regulations, 
1913,  R-617  (3);  R-804  (2)]  provide  for  the  admission  of  evidence  of  previous  convic- 
tions and  these  regulations  do  not  exempt  from  this  provision  cases  wherein  the  char- 


220  EVIDENCE. 

acter  of  an  accused  has  not  been  placed  in  issue,  but  it  applies  alike  in  all  cases,  and 
the  ordinary  rules  of  evidence  as  to  character  are  to  that  extent  modified  thereby. 
Accordingly  the  department  held  that  the  ruling  of  the  court  was  regular.  C.  M.  O. 
98, 1898. 

16.  Same— It  appears  that  certain  improper  evidence  was  introduced  by  the  prosecution 

and  admitted  by  the  court,  that  is,  evidence  relating  to  the  previous  character  of  the 
accused  (which  he  had  not  put  in  issue),  as  illustrated  by  his  conduct  while  in  the 
naval  hospital.  This  evidence  appeared  in  the  testimony  of  two  witnesses.  The 
accused  objected  to  the  testimony  of  only  one  of  these  witnesses,  and  the  court  improp- 
erly overrruled  the  objection.  The  department  held  that  "the  offense  alleged  against 
the  accused  has,  however,  been  so  clearly  established  by  the  evidence  that  this  may 
.  be  regarded  as  constituting  an  error  without  injury,  except  in  so  far  as  it  may  have 
influenced  the  court  in  the  severity  of  the  punishment  inflicted."  Accordingly  the 
department  merely  mitigated  the  sentence.  C.M.  9. 50, 1899.  See  also  333 .  A.G.,  376. 

17.  Same — Court-martial  order  introduced  by  prosecution  to  rebut  evidence  of  good  char- 

acter introduced  by  defense.  C.  M.  O.  11,  1897,  2.  See  also  COUKT-MARTIAL 
ORDERS,  11. 

18.  Same— While  in  civil  courts  particular  good  or  bad  acts  can  not  be  shown  in  proof  or 

rebuttal  of  good  character,  in  military  cases  this  is  not  strictly  followed.  At  military 
law  evidence  of  character,  which  is  always  admissible,  need  not  be  limited  to  general 
character,  but  may  include  particular  acts  of  good  conduct,  bravery,  etc.  Rebutting 
evidence  of  bad  character  in  military  cases  may  be  of  similar  form  and  nature  to  the 
evidence  of  good  character.  C.  M.  0. 11,  1897,  2-3. 

19.  Same — The  accused  introduced  testimony  as  to  character  and  efficiency  and  made  a 

written  statement  in  extenuation  of  his  conduct,  and  the  court  added  to  the  record 
a  unanimous  recommendation  to  clemency  in  the  following  terms:  In  consideration 
of  the  excellent  record  of  the  accused  as  testified  to  by  witnesses  for  the  defense,  his 
medal  of  honor  and  commendatory  letter,  and  the  favorable  impression  made  before 
the  court,  we  recommend  the  said  Boatswain  *  *  *,  United  States  Navy,  to 
the  clemency  of  the  revising  authority.  C.  M.  0. 118, 1905,  1. 

20.  Same— Testimony  as  to  character  of  a  witness.    G.  C.  M.  Rec.  28652, 23;  WITNESSES,  52. 

In  cases  where  it  is  necessary  the  judge  advocate  should  cross-examine  witnesses 
as  to  the  character  of  the  accused.  C.  M.  O.  39, 1915. 

If  the  judge  advocate  is  called  as  a  witness  as  to  character  .the  record  of  proceedings 
should  contain  a  notation  to  that  effect  as  called  for  by  the  Forms  of  Procedure,  1910, 
p.  36.  G.  C.  M.  Rec.  304C5,  p.  2. 

21.  Same— A  wardroom  cook  was  tried  by  general  court-martial  for  "Desertion,"  and 

pleaded  guilty  to  both  the  charge  and  specification  thereof;  though  precluded  by  his 
plea  from  the  benefits  of  a  regular  defense,  he  was,  nevertheless,  entitled  to  intro- 
duce evidence  in  extenuation  of  his  conduct  or  to  show  his  previous  good  character. 
The  record  of  proceedings  of  his  trial  failed  to  show  that  opportunity  to  present  such 
evidence  was  afforded  him. 

When  an  accused  has  pleaded  guilty,  the  court,  before  proceeding  to  deliberate  and 
determine  upon  the  sentence,  shall  allow  him  to  urge  anything  he  may  desire  to  offer 
in  extenuation  of  his  conduct,  to  call  witnesses  as  to  character;  and  to  ofler  any  other 
evidence  of  a  strictly  palliative  nature.  (Art.  1749  (2),  U.  S.  N.  R.  [Navy  Regula- 
tions, 1913,  R-778(2)];  Forms  of  Procedure,  1910,  p.  22.) 

A  general  court-martial  being  a  court  of  limited  jurisdiction,  each  step  taken  during 
the  trial  should  be  set  forth  in  the  record  of  its  proceedings;  and  consequently,  where 
certain  privileges  are  by  law  or  regulations  accorded  an  accused  and  he  does  not  avail 
himself  of  them,  the  record  should  affirmatively  show,  by  an  appropriate  entry,  that 
he  waived  such  rights;  in  this  case,  that  he  did  not  desire  to  offer  any  evidence.  C.M. 
0. 14, 1910,  8.  Seealso  C.  M.  0. 118, 1905, 1;  42,  1909, 12;  8, 1911,  4-6. 

22.  Same— Evidence  as  to  character  erroneously  admitted  by  court.    C.  M.  0. 104, 1896, 6. 

23.  Circumstantial.    See  DESERTION,  68  (p.  173);  INTENT,  49  (p.  294). 

24.  Citizenship— Evidence  of.    See  CITIZENSHIP,  13. 

25.  Collateral  facts — Illegal  custom— Evidence  that  similar  offenses  had  been  committed 

by  others  during  many  years,  and  that  inadequate  penalties  or  no  penalties  at  all 
had  been  inflicted,  is  immaterial  as  affecting  the  guilt  or  innocence  of  the  accused. 
There  can  be  no  such  thing  as  a  lawful  custom  to  commit  a  crime,  and  the  fact  that 
others  had  escaped  punishment  could  in  no  wise  justify  the  accused  in  violating  the 
law.  C.  M.  0. 128, 1905.  See  also  COLLISION,  8. 

26.  Same— Evidence  to  excuse  in  case  of  a  collision.    See  COLLISION,  8;  EVIDENCE,  25. 

27.  Common  law  rules  of  evidence,  C.  M.  0. 21, 1910, 14.    Seealso  COMMON  LAW,  8. 

28.  Competent  evidence.    See  DECK  COURTS,  58;  EVIDENCE,  79;  WITNESSES,  29, 52. 


EVIDENCE.  221 

29.  Confession.    See  CONFESSIONS. 

30.  Conflict  In  evidence.   See  CRITICISM  OF  COURTS-MARTIAL,  14. 

31.  Contradictory  testimony — It  is  the  province  of  the  court,  after  hearing  the  testimony 

of  witnesses  as  to  statements  made  by  the  accused,  to  weigh  the  same  and  determine 
for  itself  whether  or  not  such  statements  are  contradictory  and  false.  C.  M.  O.  91, 
1902.  See  also  CONFESSIONS,  19,  20. 

32.  Coroner's  inquest.   C.  M.  0. 5, 1913, 9-11.    Seealso  CONFESSIONS,  10. 

33.  Corroboratlon — Whenever  practicable,  the  testimony  of  a  person  making  an  arrest 

should  be  corroborated  by  other  testimony,  particularly  when  there  are  numerous 
witnesses  thereto.  C.  M.  O.  7,  1911,  10-12.  Seealso  ARREST,  17;  EVIDENCE,  6. 

34.  Same — While  observations  of  the  civil  courts  concerning  the  testimony  of  police  officers 

may  not  be  altogether  applicable  to  the  testimony  of  a  master-at-arms;  suggested,  that 
whenever  practicable  the  testimony  of  a  master-at-arms  who  makes  an  arrest  and 
accuses  the  offender  should  be  corroborated,  particularly  where  it  appears  that  there 
were  numerous  witnesses  to  the  facts  charged.  File  26262-1005. 

35.  Same — Accused.    See  WITNESSES,  4,  7. 9. 

36.  Court — "Originating"  evidence.    C.  M.  O.  19,  1915,  3.    Seealso  WITNESSES,  40. 

37.  Same — Of  its  own  motion  may  exclude.    See  EVIDENCE,  82. 

38.  Criminating  questions.    See  SELF-INCRIMINATION. 

39.  Death  gratuity — Must  be  satisfactory  to  Paymaster  General  for  payment  of.    See 

DEATH  GRATUITY,  21-23. 

40.  Deck  court— Appeal.    Sec  DECK  COURTS,  1,  2. 

41.  Definition — "That  which  tends  to  prove  or  disprove  any  matter  in  question,  or  to 

influence  the  belief  respecting  it.  Belief  is  produced  by  the  consideration  of  some- 
thing presented  to  the  mind.  The  matter  thus  presented,  in  whatever  shape  it  may 
come,  and  through  whatever  material  organ  it  is  derived,  is  evidence  (1  Bouv.  701). 

42.  Degree  of  criminality  involved — Where  the  accused  has  committed  a  grave  offense 

and  pleaded  guilty  the  judge  advocate  should  advise  the  court  of  the  nature  of  the 
offense  in  order  that  evidence  can  be  taken  for  the  prosecution  as  provided  by  Navy 
Regulations,  1913,  R-778(3),  for  the  purpose  of  presenting  the  entire  circumstances 
of  the  offense  to  the  court.  C.  M.  0. 1, 1914, 5-6.  See  also  C.  M.  0. 50, 1900;  DEGREE 
OF  CRIMINALITY  INVOLVED;  JUDGE  ADVOCATE,  50,  70. 

43.  Demurrer.    See  DEMURRER. 

44.  Discrediting  testimony  of  a  witness.    See  SELF  INCRIMTNATION,  11, 12;  WITNESSES, 

51,  52. 

45.  Documentary.    See  EVIDENCE,  DOCUMENTARY. 

46.  Drunkenness — Evidence  of.    See  DRUNKENNESS,  34. 

47.  Dying  declarations.    See  DYING  DECLARATIONS. 

48.  Exclusion  of.    See  EVIDENCE,  82. 

49.  Expert  testimony.    See  EVIDENCE,  12;  EXPERT  WITNESSES. 

50.  Extenuation— Should  the  accused  persist  in  a  plea  of  guilty,  the  court  before  proceeding 

to  deliberate  and  determine  the  sentence,  shall  allow  him  to  urge  anything  he  may 
desire  to  offer  in  extenuation  of  his  conduct,  to  call  witnesses  as  to  character,  and  to 
offer  any  other  evidence  of  a  strictly  palliative  nature;  and  the  judge  advocate  shall 
have  the  right  to  cross-examine  such  witnesses  and  to  introduce  evidence  in  rebuttal. 
C.  M.  O.  42,  1909, 12;  14, 1910,  8;  8.  1911,  4-6. 

51.  Same — If  the  evidence  of  the  accused  in  extenuation  after  he  has  pleaded  guilty  is  incon- 

sistent with  such  plea  the  court  should  have  the  accused  change  his  plea  to  "not 
guilty."  By  a  plea  of  guilty  an  accused  deprives  himself  of  the  benefits  of  a  regular 
defense  and  can  call  witnesses  and  introduce  evidence  only  as  to  previous  good  char- 
acter or  in  extenuation  of  his  conduct.  C.  M.  O.  2,  1905;  30,  1910,  4;  8,  1912,  5.  See 
also  CLEMENCY,  20. 

52.  Same;-" It  thus  appears  that  practically  the  entire  testimony  (in  extenuation)  as  to 

the  intoxication  of  the  accused  introduced  by  the  defense  would  have  been  inad- 
missible upon  objection  thereto."  The  evidence  referred  to  is  testimony  to  show  that 
the  accused  was  so  drunk  that  he  was  unaware  of  what  he  was  doing  when  he  com- 
mitted the  acts  alleged.  C.  M.  O.  8, 1912.  5.  See  also  EVIDENCE,  60. 

53.  Same.    C.  M.  0. 17, 1915,  2;  23, 1915,  2. 

54.  Facts— Evidence  should  be  confined  to  testimony  of  facts;  the  inferences  to  be  drawn 

from  established  facts  must  be  drawn  by  the  court  alone.    C.  M.  O.  49, 1915,  15. 

55.  False  swearing— Under  charge  of"  Perjury."  C.  M.  O.47, 1910,  5.  Seealso  PERJURY,  16. 

56.  Same— Before  a  court  of  inquiry.    (G.  C.  M.  Rec.  29422.)    C.  M.  O.  51,  1914,  9.    See 

also  COURTS  OF  INQUIRY,  23,  40;  PERJURY,  3. 

57.  False  testimony— Under  charge  of  "Perjury."    C.  M.  O.  47,  1910,  5.    See  also  PER- 

JURY, 16. 


222  EVIDENCE. 

58.  Finding— Additional  evidence  can  not  be  taken  after  the  court  has  reached  its  findings. 

Evidence  of  previous  convictions  iray  be  admitted  however.  See  PREVIOUS  CON- 
VICTIONS, 19;  REVISION,  14-16. 

59.  "Guilty,"  plea  of — After  warning,  should  the  accused  persist  in  a  plea  of  guilty,  the 

court,  before  proceeding  to  deliberate  and  determine  upon  the  sentence,  shall  allow 
him  to  urge  anything  he  may  desire  to  offer  in  extenuation  of  his  conduct,  to  call 
witnesses  to  character,  and  offer  any  other  evidence  of  a  strictly  palliative  nature; 
and  the  i  udge  advocate  shall  have  the  right  to  cross-examine  such  witnesses  and  intro- 
duce evidence  in  rebuttal.  (Navy  Regulations,  1913.  R-778  (2)).  See  C.  M.  O.  50, 
1900;  2, 1905,  3;  42,  1909,  12;  14,  1910,  8;  8, 1911,  4-6.  See  also  EVIDENCE.  21, 50, 51,60. 
•60.  Same — Accused  may  not  testify  after  plea  of  "guilty."  Accused  pleaded  "guilty" 
of '  Desertion  "  and  was  then  sworn  as  a  witness  and  testified  that  he  had  no  intention 
of  deserting.  Court  found  the  specification  "proved  by  plea"  and  that  the  accused 
was  of  the  charge  "guilty:"  Held:  That  the  accused,  by  his  plea,  deprived  himself 
of  the  benefit  of  a  regular  defense  and  could  call  witnesses  and  introduce  evidence 
only  as  to  previous  good  character  or  in  extenuation  of  his  conduct.  That  the  court 
erred  in  admitting  this  testimony  after  the  plea,  and  also  erred  when,  after  hearing 
the  inconsistent  testimony,  it  did  not  change  the  pleas  to  not  guilty  and  proceed  with 
the  trial.  No  evidence  having  been  introduced  to  support  the  rinding,  and  it  not 
being  permitted  to  introduce  new  evidence  in  revision,  the  proceedings,  findings, 
and  sentence  were  disapproved.  C.  M.  O.  2, 1905,  3.  See  also  EVIDENCE,  52, 58. 

61.  Hearsay.    See  HEAKSAY  EVIDENCE. 

62.  Higher  evidence.    See  C.  M.  O.  47,  1910,  7;  49, 1910,  10. 

63.  Hypothetical  questions.    See  HYPOTHETICAL  QUESTIONS. 

64.  Impeaching  testimony  of  witnesses.    See  IMPEACHMENT. 

65.  Incompetent — Failure  to  make  objection  to  evidence  until  after  conclusion  of  trial 

amounts  to  acquiescence.  Testimony  of  an  incompetent  witness  does  not  vitiate  the 
proceedings  necessarily.  C.  M.  O.  21,  1910,  13-15;  14,  1911,  4-9;  31,  1911,  7. 

66.  Incrlmlnatlon.    See  SELF-INCRIMINATION. 

67.  Informal  evidence.    See  C.  M.  O.  37, 1909,  9. 

68.  Initiative  to  object  to  evidence— Is  on  opponent.    C.  M.  O.  31,  1911,  7.    See  also 

EVIDENCE,  82. 

69.  Insufficient  to  convict.    C.  M.  O.  37,  1909,  4.    See  also  C.  M.  O.  29,  1902. 

70.  Intent,  evidence  of — That  participants  in  a  fight  knew  they  were  doing  something 

wrong  is  sufficiently  shown  by  their  interrupting  the  fight  when  an  officer  was 
believed  to  be  approaching.  C.  M.  0. 128,  1905. 

71.  Irrelevancy.    See  EVIDENCE,  102, 103. 

72.  Judge  advocate — If  authorized  by  convening  authority  may  admit  that  a  certain 

person,  if  present,  would  give  certain  testimony.    See  ADMISSIONS,  3. 

73.  Judicial  notice.    See  JUDICIAL  NOTICE. 

74.  Leading  questions.    See  LEADING  QUESTIONS. 

75.  Miscarriage  of  Justice— Caused  by  court  receiving  incompetent  evidence.    See  COURT, 

78. 

76.  Misinterpretation  of— By  court.    C.  M.  O.  37, 1915, 10. 

77.  "Negative  testimony."    See  DRUNKENNESS,  100. 

78.  Objection  to  competency — When  to  be  taken.    See  EVIDENCE,  79-84. 

79.  Objection  to  Introduction  of — Failure  to  make  objection  to  evidence  until  after 

conclusion  of  trial  amounts  to  acquiescence.  Testimony  of  an  incompetent  witness 
does  not  vitiate  the  proceedings  necessarily.  If,  therefore,  no  objection  is  made 
during  the  trial  to  matters  of  evidence,  any  question  as  to  its  admissibility  must  be 
deemed  to  have  been  waived  by  the  accused.  C.  M.  0. 14, 1911,  4-9;  31, 1911,  7.  See 
also  C.  M.  O.  47, 1910,  4;  15, 1910,  8;  DECK  COURTS,  58  (p.  159). 

80.  Same — Objections  to  rulings  on  the  admission  of  evidence  in  a  criminal  case,  taken 

after  the  evidence  has  been  closed  on  both  sides,  are  too  late.  McDuffie  et  al.  v.  U.  8., 
227  Fed.  Rep.,  961. 

81.  Same— By  court.    See  EVIDENCE,  82  (p.  223). 

82.  Same— li  the  evidence  had,  in  fact,  been  objectionable  on  the  ground  of  inadmissibility, 

by  whom  should  this  objection  have  been  made?  Should  the  court  interpose  sua 
sponte  and  reject  evidence  which  is  offered,  and,  if  it  does  not,  should  the  reviewing 
authority  reject  it  when  the  case  comes  before  him? 

"The  initiative  in  excluding  improper  evidence  is  left  entirely  to  the  opponent — 
so  far  at  least  as  concerns  his  right  to  appeal  on  that  ground  to  another  tribunal.  The 
judge  may  of  his  own  motion  deal  with  offered  evidence;  but  for  all  subsequent  pur- 
poses it  must  appear  that  the  opponent  invoked  some  rule  of  evidence."  (Wigmore, 
Sec.  18.) 


EVIDENCE.  223 

Cases  where  the  court  might,  of  its  own  motion,  refuse  to  permit  the  introduction 
of  evidence  are  conceived  to  be  those  in  which  some  rule  ofpublic  policy  would  be 
contravened,  as  in  the  case  of  privileged  communications,  between  husband  and  wife, 
State  secrets,  etc.  But  aside  from  these  a  trial  court  would  not  ordinarily  intervene, 
and  would  leave  the  matter  of  objection  to  the  party  against  whom  it  was  offered. 

An  accused  either  has  counsel,  or  waives  such  assistance,  as  did  the  accused  in  this 
case;  but  even  then,  the  recorder  is  required  to  safeguard  the  interests  of  the  accused. 
As  was  said  in  McKinney  v.  People  (17  111.,  556),  quoted  in  3  Rice  on  Evidence,  259: 

"A  prisoner  on  trial  under  our  laws  has  no  right  to  stand  by  and  suffer  irregular 
proceedings  to  take  place,  and  then  ask  to  have  the  proceedings  reversed  on  error  on 
account  of  such  irregularities.  The  law,  by  furnishing  him  with  counsel  to  defend 
him,  has  placed  him  on  the  same  platform  with  all  other  defendants,  and  if  he  neglects 
in  proper  time  to  insist  on  his.rights,  he  waives  them." 

If,  therefore,  no  objection  is  made  during  the  trial  to  matters  of  evidence,  any 
question  as  to  its  admissibility  must  be  deemed  to  have  been  waived  by  the  accused. 
C.  M.  O.  31,  1911,  6-7.  See  also  16  J.  A.  G.,  78;  REVIEWING  AUTHORITY,  9. 

83.  Same— If  no  objection  is  made  to  the  introduction  of  evidence  given  during  the  trial 

by  naval  court-martial,  then,  in  accordance  with  ordinary  procedure,  there  is  nothing 
in  question  for  the  reviewing  authority  to  decide  as  to  the  admissibility  of  evidence. 
A  possible  exception  to  this,  however,  in  view  of  the  greater  latitude  allowed  in  all 
courts-martial  procedure,  would  be  a  case  where  the-trial  had  ignored  the  objec- 
tionable character  of  certain  evidence  on  the  ground  of  public  policy.  If  objection- 
able evidence  is  given  without  objection,  its  inadmissibihty  must  be  deemed  to  have 
been  waived.  File  26262-1194,  J.  A.  G.,  June  16, 1911,  p.  3.  See  also  16  J.  A.  G.,  78; 
REVIEWING  AUTHORITY,  9. 

84.  Same— "It  is  a  vain  conceit,  that  because  the  proceedings  are  irregular,  and  fatally 

irregular  (if  the  exception  be  taken  in  proper  time),  therefore  the  judgment  once  suffered 
to  be  entered  up  is  void.  Thus  there  are  many  things  *  *  *  in  the  conduct  of  a 
trial,  that  make  the  verdict  void;  yet,  if  advantage  be  not  taken  of  them  by  motion 
in  arrest  of  judgment,  no  writ  of  error  lies,  even  where  there  is  a  competent  court  of 
errors  (Rob.  Abr..  783;  4  Cro.Eliz.,  616),  and  it  is  very  proper  it  should  be  so;  *  *  * 
and  the  repose  01  society,  and  the  putting  an  end  to  controversy  and  litigation,  are 
more  desirable  than  mere  accuracy  of  procedure,  or  even  the  justice  of  a  particular 
case — not  to  mention  that  acquiescence  Implies  consent,  and  consent  cures  error."  (4 
Op.  Atty.  Gen.,  171.)  C.  MT  0. 13, 1916,  6.  See  also  ESTOPPEL,  9. 

If  the  defect  is  discovered  before  the  jury  retires,  it  must  be  taken  advantage  of  at 
once,  as  inaction  in  such  a  case  amounts  to  an  acquiescence  in  the  reception  of  the 
unsworn  witness's  statements.  (30  A.  and  E.  Enc.,  910.) 

"Where  irrelevant  evidence  has  been  admitted  or  an  incompetent  witness  has 
been  examined  it  is  not  held  sufficient  to  vitiate  the  proceedings;  and  the  reviewing  officer, 
on  a  consideration  of  all  the  circumstances,  may  either  confirm  the  sentence  or  extend 
his  pardon  to  the  prisoner.  If  the  finding  of  the  court,  in  such  case,  be  agreeable  to 
equity  and  justice,  there  are  not  sufficient  grounds  for  a  pardon."  (De  Hart,  p.  205.) 

In  criminal  as  well  as  in  civil  actions,  when  the  witness  leaves  the  stand,  there  is 
an  end  of  all  questions  as  to  his  competency;  it  is  then  too  late  to  object  on  this  ground, 
especially  if  nis  incompetency  appeared  when  he  was  first  on  the  witness  stand. 
(30  A.  &  E.  Encycl.  Law,  p.  971.)  C.  M.  O.  14, 1911,  5-7. 

85.  "Official  knowledge" — An  accused  was  tried  before  a  summary  court-martial  for 

absence  without  leave  and  was  acquitted  because  the  court  accepted  the  recorder's 
statement  as  conclusive  that  no  witnesses  to  prove  the  offense  were  available.  The 
department  stated: 

It  is  suggested  that  the  commanding  officer  who  preferred  the  charge  would  have 
been  a  competent  witness  to  testify  before  the  court  as  to  such  facts  pertaining  to  the 
specification  as  were  within  his  official  knowledge,  and  which  therefore  induced  him 
to  cause  the  accused  to  be  brought  to  trial  by  summary  court-martial.  C.  M.  O.  42, 
1909, 16. 

86.  Opinions.   See  EXPERT  WITNESSES,  12,  13;  OPINION. 

87.  Oral  testimony — For  defense  is  not  admissible  to  prove  the  contents  of  certain  letters 

when  those  letters  were  in  possession  of  counsel  for  the  accused  and  could  have  been 
produced  in  court.  C.  M.  O.  119, 1905. 

88.  Same — All  testimony  before  a  summary  court-martial  shall  be  given  orally,  upon  oath 

or  affirmation,  administered  by  the  senior  member  of  the  court.    (A.  G.  N.  29.) 

89.  Order  of  Introducing— May  be  introduced  out  of  usual  order  for  satisfactory  cause 

at  discretion  of  court— After  the  prosecution  and  defense  had  rested,  the  judge  advo- 
cate in  rebuttal  called  a  witness  who  had  previously  testified  for  the  prosecution 

50756°— 17 15 


224  EVIDENCE. 

and  again  questioned  said  witness  concerning  the  condition  of  the  accused  on  the 
four  dates  mentioned  in  the  specifications.  Counsel  for  the  accused  objected  on  the 
ground  that  the  proper  place  to  introduce  such  evidence  was  in  the  former  direct 
examination  of  this  witness.  The  objection  of  counsel  for  the  accused  was  properly 
overruled  by  the  court.  (Forms  of  Procedure.  1910.  pp.  39  and  144;  Navy  Regulations, 
1913,  R-780.)  C.  M.  O.  31, 1914,  2.  See  also  G.  C.  M.  Rec.  27285,  p.  181;  29422;  30485. 

90.  Same — After  the  court  had  admitted  certain  evidence  out  of  usual  order  the  judge 

advocate  stated  that  he  desired  it  spread  on  the  record  that  such  procedure  in  ad- 
mitting the  evidence  out  of  its  usual  order  was  not  in  accordance  with  the  prescribed 
forms  and  practices.  The  judge  advocate  was  in  error  in  thus  advising  the  court 
since  the  Navy  Regulations,  1913,  R-7SO,  authorize  the  court,  in  the  interest  of  justice, 
to  allow  evidence  to  be  introduced  out  of  usual  order.  Index-Digest,  1914,  page  19, 
states  that  evidence  may  be  introduced  out  of  usual  order  for  satisfactory  cause  at  the 
discretion  of  court.  (See  also  Forms  of  Procedure,  1910,  pp.  39,  144;  C.  M.  O.  31, 1914, 
p.  2.)  C.  M.  O.  41,  1915,  10. 

91.  Originating  evidence— By  court.    See  COURT,  75;  WITNESSES,  40. 

92.  Parol— In  proving  desertion.    C.  M.  O.  31, 1915, 16.    See  also  SERVICE  RECORDS,  16. 

93.  Perjury— Evidence  necessary  to  prove  guilt.    See  File  26262-1569,  Sec.  Navy,  Dec. 

18, 1912.   See  also  PERJURY,  6. 

94.  Previous  convictions.   See  PREVIOUS  CONVICTIONS. 

95.  Prima  facie  evidence,    C.  M.  O.  9, 1916, 9.    See  also  DESERTION,  102-105;  DISCRIMINA- 

TION AGAINST  UNIFORM,  1;  EMBEZZLEMENT,  24. 

96.  Primary  evidence— Waived  if  accused  has  counsel  and  does  not  object  to  introduction 

of  secondary  evidence.    C.  M.  O.  47, 1910,  4;  15, 1910,  8.    See  also  C.  M.  O.  49, 1910, 15. 
'97.  Privilege.    See  COUNSEL,  4,  43;   EVIDENCE,  82,83;    PRIVILEGE;  SELF-INCRIMINATION; 
WIFE. 

98.  Quantity  of.    See  EVIDENCE,  126:  REASONABLE  DOUBT. 

99.  Rambling— Objected  to.    G.  C.  M.  Rec.  30485,  pp.  332,  357. 

100.  Reasonable  doubt.    See  REASONABLE  DOUBT. 

101.  Rebutting.    C.  M.  O.  31, 1915, 15. 

102.  Relevancy— Judge  advocate  shall  point  out  to  court  the  irrelevancy  of  any  evidence. 

C.  M.  0. 49, 1915, 11.    See  also  JUDGE  ADVOCATE,  59,  68. 

103.  Same — Evidence  must  be  relevant  to  issue.    C.  M.  O.  48, 1915, 14. 

104.  Revision— Illegal  to  introduce  evidence  in  revision.    See  REVISION,  14-16. 

105.  Same— Under  certain  conditions,  evidence  of  previous  convictions  may  be  admitted  in 

revision.    C.  M.  O.  29, 1914,  5.    See  also  PREVIOUS  CONVICTIONS,  19. 

106.  Rules  of  evidence— Naval  courts-martial  in  their  proceedings  should  be  governed  by 

the  rules  of  evidence  as  laid  down  in  the  United  States  courts.  C.  M.  O.  21,  1910, 
13-14;  51, 1914,  4,  7-8;  G.  C.  M.  Rec.  24813;  File  4578-04,  May  25,  1904. 

107.  Same — Naval  courts-martial  are  bound  by  the  decisions  of  the  Supreme  Court  of  the 

United  States  with  regard  to  the  introduction  of  evidence  and  its  admissibility. 
C.  M.  O.  31,  1911,  5;  16  J.  A.  G.  78. 

108.  Same — As  no  statute  prescribes  the  rules  of  evidence  to  govern  naval  courts-martial, 

courts  and  boards,  they  are  made  by  the  department  and  published  In  Forms  of 
Procedure  and  Court-Martial  Orders.  If  a  desired  rule  is  not  found  in  the  above 
publications,  the  rule  applied  by  Federal  courts  should  be  followed.  If  such  rule 
can  not  be  secured  from  the  above  sources,  the  tribunal  must  rule  as  it  thinks  just 
and  reasonable.  File  5252-74. 

109.  Same— The  rules  of  evidence  of  the  common  law  as  recognized  and  followed  by  the 

criminal  courts  of  the  country  are  to  be  observed  in  general  by  courts-martial.  File 
6465-03,  J.  A.  G.,  July  22,  1903,  p.  10. 

110.  Secondary  evidence.    C.  M.  0. 119, 1905;  47, 1910,  6,  7;  49, 1910, 10, 15. 

111.  Self-incrlmlnatlon.    See  SELF-INCRIMINATION. 

112.  Self-serving  statements— Not  competent.    C.  M.  O.  29,  1914,  8.    See  also  SELF- 

SERVING  STATEMENTS;  WORDS  AND  PHRASES. 

113.  Silence  of  accused— As  an  admission  of  guilt.   See  CONFESSIONS,  22. 

114.  Single  witness— The  evidence  of  a  single  witness  against  the  accused,  as  to  the  details 

of  a  "riot  or  furious  affray,"  should  be  regarded  with  much  caution,  since  no  single 
witness  can  tell  with  absolute  precision  what  took  place  and  describe  accurately  all 
the  details.  C.  M.  O.  7,  1911,  8.  See  also  EVIDENCE,  128. 

115.  Statements  made  In  presence  of  accused.    See  STATEMENTS  MADE  IN  PRESENCE 

OF  ACCUSED. 

116.  Statements  of  accused.    See  STATEMENT  OF  ACCUSED. 

117.  Sufficiency  of  evidence.    See  CRITICISM  OF  COURTS-MARTIAL,  14.  / 

118.  Summary  courts-martial.    See  EVIDENCE,  88. 


EVIDENCE.  225 

119.  "Testimony"— "Testimony  and  other  evidence"— Distinction  between  "testimony" 

and  "evidence."    C.  M.  O.  41, 1888,  6. 

120.  Unobjected  to— Convening  authority  should  not  notice.    See  CONVENING  AUTHORITY, 

23;  EVIDENCE,  82, 83, 125;  REVIEWING  AUTHORITY,  9. 

121.  Verification  of — By  witnesses  is  mandatory,  and  can  not  be  waived.    C.  M.  O.  47, 

1910,  6;  3,  1917,  5.    See  also  G.  C.  M.  Rec.  21196;  21198. 

122.  Same — Material  corrections  of  testimony  on  verification  should  not  be  made  in  absence 

of  accused.    See  ACCUSED,  4. 

123.  Same— Witnesses  should  verify  testimony  before  finding  and  sentence.    C.  M.  O.  14, 

1910, 9. 

124.  Voirdire.    C.  M.  0. 128, 1905,  2;  G.  C.  M.  Rec.  27960.    See  also  VOIR  DIRE. 

125.  Waiving  of  objectionable  evidence — If  no  objection  is  made  during  the  trial  to  mat- 

ters of  evidence,  any  question  as  to  its  admissibility  must  be  deemed  to  have  been 
waived  by  the  accused,  and  in  accordance  with  ordinary  procedure  there  is  nothing 
in  question  for  the  reviewing  authority  to  decide  as  to  the  admissibility  of  evidence. 
C.  M.  O.  21,  1910,  13-15;  14,  1911,  4-9;  31,  1911,  7.  See  also  EVIDENCE,  78-83;  EVI- 
DENCE, DOCUMENTARY,  59,  60. 

126.  Weight  of  evidence.    See  DRUNKENNESS,  100;  EVIDENCE,  31;  REASONABLE  DOUBT; 

WITNESSES,  4,  52, 112-114. 

127.  Wife  of  accused.    See  EVIDENCE,  82;  WIFE. 

128.  Witnesses,  excited— Excited  witnesses  of  a  riot  or  furious  affray  are  not  likely  to 

comprehend  and  remember  accurately  the  movements  of  the  various  persons  actually 
engaged.  The  truth  is  that  no  two  witnesses  on  such  occasions  quite  agree  as  to  the 
details  of  an  occurrence  and  no  single  witness  can  tell  with  absolute  precision  what 
took  place  and  describe  accurately  all  the  details.  The  confusion  ana  excitement  of 
a  crowd  must  have  prevented  witnesses  from  hearing  distinctly  and  comprehending 
the  movements  of  persons  most  actively  engaged.  File  26262-1 065;  EVIDENCE,  114. 

129.  Witnesses,  manner  and  bearing— That  the  manner  of  the  witness  on  the  stand- 

bis  appearance,  demeanor,  style  of  expressing  himself,  etc.— is  proper  to  be  consid- 
ered in  connection  with  his  testimony  as  adding  to  or  detracting  from  his  credibility 
and  relative  weight,  is  a  point  frequently  noted  by  the  authorities.  C.  M.  O.  63, 
1899,2.  See  also  COURT,  198;  WITNESSES,  52,  76. 

EVIDENCE,  DOCUMENTARY. 

1.  Affidavit.    See  AFFIDAVITS. 

2.  Authentication  of  documents — During  the  course  of  a  general  court-martial  trial 

of  an  officer  it  was  desirable  to  introduce  in  evidence  his  medical  record.  Accordingly 
a  copy  authenticated  by  the  Chief  of  the  Bureau  of  Medicine  and  Surgery  was  intro- 
duced. It  was  not  under  seal.  Later  during  the  trial  a  member  moved  to  strike 
it  out  on  the  ground  that  it  was  not  properly  authenticated.  The  court  did  not 
strike  it  out  but  permitted  the  introduction  of  a  properly  authenticated  copy  under 
seal  of  the  department  in  accordance  with  the  provisions  of  Navy  Regulations,  1913, 
R-751(3),  Revised  Statutes,  882,  and  Forms  of  Procedure,  1910,  pp.  32,  141.  G.  C.  M. 
Rec.  30485,  pp.  684-685. 

3.  Same — The  law,  when  copies  are  made  evidence  by  statute,  demands  that  the  mode 

of  authentication,  prescribed  by  statute,  shall  be  strictly  pursued.  (Smith  v .  U.  S., 
5  Peters,  290-300;  Block  v.  U.  S.,  7  Ct.  Cls.,  414.) 

4.  Boards  of  Investigation.    See  BOARDS  OF  INVESTIGATION,  5-8. 

5.  Carbon  copies.    See  CARBON  COPIES,  1 

6.  Certificate  of  civil  officer— Is  secondary  evidence.    See  CERTIFICATES,  3-5. 

7.  Same— Written  statement  of  civilian  sergeant  of  police  is  only  hearsay.    See  CER- 

TIFICATES, 5. 

8.  Checks,  photographic  copies.    See  CHECKS,  6;  EVIDENCE,  DOCUMENTARY,  37. 

9.  Confessions.    See  CONFESSIONS. 

10.  Copy — A  copy  of  a  document  of  any  kind  is  nevar  competent  evidence  [except  when 

made  so  by  statute)  when  it  is  practicable  to  produce  the  original  in  the  case.  The 
fact  that  a  copy  submitted  is  certified  to  by  the  judge  advocate  shows  conclusively 
that  if  it  was  available  for  the  purpose  of  making  a  copy,  it  was  also  available  for 
introduction  as  evidence,  and  therefore  such  copy  as  introduced  is  wholly  incompe- 
tent as  evidence.  C.  M.  O.  40, 1909,  2.  See  also  West  Virginia  v.  U.  S.,  37  Ct.  Cls.,  201, 
205. 

11.  Court-martial  orders.    See  COURT-MARTIAL  ORDERS,  11,  26-28. 

12.  Court  of  Claims — Calls  for  evidence.    See  COURT  OF  CLAIMS,  1, 3. 
;      13.  Court  of  inquiry  record.    See  COURTS  OF  INQUIRY,  17-21. 

14.  Court  of  Inquiry  findings— As  evidence.    See  COURTS  OF  INQUIRY,  18,  24. 

15.  Depositions.   See  DEPOSITIONS. 


226  EVIDENCE,    DOCUMENTARY. 

16.  Efficiency  reports  of  officers.    See  REPORTS  ON  FITNESS. 

17.  Enlistment  records.    See  SEKVICE  RECORDS. 

18.  Examining  board  records.    See  NAVAL  EXAMINING  BOARDS,  12. 

19.  Facts  recorded  as  official  duty— It  is  an  elementary  rule  in  the  law  of  evidence  that 

where  facts  are  recorded  as  a  matter  of  official  duty  at  or  about  the  time  of  the  trans- 
action recorded,  the  contents  of  such  records  or  documents  are  proven  by  the  pro- 
duction of  the  records  or  documents  themselves,  and  by  proof  that  they  come  from 
the  proper  custody.  Matters  so  proved  are  treated  as  prima  facie  evidence  of  the 
facts  stated  therein.  (See  Jones  on  Evidence,  sec.  521.)  These  remarks  apply  to 
the  entries  on  the  enlistment  record  referring  to  a  charge  of  "Desertion"  entered 
thereon  by  the  commanding  officer  of  the  naval  vessel  on  which  the  accused  was 
serving  when  he  deserted.  C.  M.  0. 10, 1912, 8.  See  also  C.  M.  O.  31, 1915;  SERVICE 
RECORDS,  16. 

20.  General  orders  of  Army.    See  ARMY,  15. 

21.  Identification  of— A  judge  advocate  offered  a  paper  (receipt  for  transportation)  in 

evidence,  stating  that  it  was  signed  by  the  accused,  but  it  had  not  been  identified 


22. 

23.  Letters.    See  LETTERS. 

24.  Letter  press  copies.    See  CARBON  COPIES,  1. 

25.  Marine  examining  boards.    See  NAVAL  EXAMINING  BOARDS,  12. 

26.  Naval  examining  boards.    See  NAVAL  EXAMINING  BOARDS,  12. 

27.  Objection  to— Documentary  evidence  against  accused  should  be  submitted  to  him 

for  the  purpose  of  affording  him  an  opportunity  to  make  reasonable  objection  to  ils 
introduction.  C.  M.  O.  37,  1909,  9;  47,  1910,  4;  49,  1910,  16.  See  also  G.-  C.  M.  Rec. 
30485,  p.  318. 

28.  Same — Primary  documentary  evidence  is  waived  if  unobjected  to.    C.  M.  0. 47, 1910, 4; 

52, 1910,  3. 

29.  Same.    See  EVIDENCE,  78-84. 

30.  Officers'  records.    See  RECORDS  OF  OFFICERS;  REPORTS  ON  FITNESS. 

31.  "Official  reports" — Made  contemporaneously  with  facts  stated.    See  EVIDENCE, 

DOCUMENTARY.  19;  SERVICE  RECORDS,  16. 

32.  Official  duty — Facts  recorded  as.    See  EVIDENCE,  DOCUMENTARY,  19. 

33.  Press  copies.    See  CARBON  COPIES,  1. 

34.  Previous  convictions.    See  PREVIOUS  CONVICTIONS. 

35.  Privilege.    See  PRIVILEGE;  SELF-INCRIMINATION;  WIFE. 

36.  Procedure  in  Introducing— Documentary  evidence  before  courts-martial  will  be 

introduced  by  the  proper  custodian  taking  the  stand  as  a  witness  to  identify  such 
document,  presenting  it  to  the  party  against  whom  it  is  to  be  offered  for  inspection 
and  opportunity  to  object  to  its  admission,  and  also  to  the  court;  then  if  no  reasonable 
objection  Is  made,  reading  therefrom  such  entry  as  may  be  pertinent  to  the  issue. 
Upon  objection  being  entered  by  the  party  against  whom  it  is  offered,  the  court  will 
rule  upon  the  objection  and  its  decision  thereon  is  final.  (Forms  of  Procedure,  1910, 
p.  31;  C.  M.  O.  37,  1909,  p.  9;  40,  1909,  p.  2;  47,  1910,  p.  4;  28, 1910,  p.  7;  1,  1911,  p.  5.) 
C.  M.  0. 41, 1914,  4;  15, 1916,  3.  See  a/so  SERVICE  RECORDS,  23. 

37.  Same — It  was  noted  that  the  counsel  for  the  accused  irregularly  introduced  documen- 

tary evidence  in  the  form  of  a  letter  addressed  to  the  agent  of  the  accused  and  also 
photographic  copies  of  certain  checks.  The  record  does  not  show  that  either  the 
court  or  the  judge  advocate  was  afforded  an  opportunity  to  object  to  the  introduction 
of  these  documents,  or  even  that  the  same  were  received  in  evidence  by  the  court. 
Also  the  judge  advocate  irregularly  introduced  documentary  evidence  in  the  form  of 
a  letter  written  by  the  Army  and  Navy  Club  to  the  Navy  Department. 

The  proper  procedure  in  introducing  documentary  evidence  is  to  have  the  proper 
custodian  take  the  stand  as  a  witness  to  identify  such  document,  presenting  it  to 
the  party  against  whom  it  is  to  be  offered  for  inspection  and  opportunity  to  object 
to  its  admission,  and  also  to  the  court;  then  if  no  reasonable  objection  is  made,  to  ask 
witness  to  read  therefrom  such  extracts  as  may  be  pertinent  to  the  issue;  and  finally 
either  the  original  or  certified  copy  of  the  extract  read  should  be  appended  to  the 
record.  (Forms  of  Procedure  1910,  p.  31;  Index-Digest,  1914,  p.  19.) 

In  the  present  case  the  record  does  not  positively  show,  as  should  be  the  case,  that 
the  above-mentioned  documents  were  properly  identified  before  being  introduced; 
that  they  were  submitted  to  both  the  court  and  the  accused,  or  to  the  court  and  the 
judge  advocate,  depending  upon  the  use  to  be  made  of  this  evidence;  and  whether 
or  not  objection  was  made  to  its  receipt  in  evidence  and  the  court's  action  thereon. 


EVIDENCE,    DOCUMENTARY.  227 

Also,  in  consequence  of  the  irregular  manner  of  their  introduction,  the  court  did  not 
pass  upon  the  question  of  the  competency  or  relevancy  of  these  documents  as  evidence 
to  be  used  in  the  trial  of  this  case,  and  the  court  thereby  and  to  that  extent  failed  to 
fully  perform  its  functions  as  a  court.  C.  M.  0. 15,  1916,  3. 

38.  Quarterly  clothing  return.   See  QUARTERLY  CLOTHING  RETURNS. 

39.  Reading  from— It  is  improper,  and  in  violation  of  the  rules  of  evidence,  to  read  from 

a  document  until  it  has  been  properly  introduced  in  evidence.  The  document  hi 
this  case  was  the  appointment  of  the  accused  as  petty  officer.  C.  M.  O.  49,  1910,  16. 
See  also  C.  M.O.I,  1911,  4. 

40.  Same— Should  be  offered  in  evidence  before  being  read.    C.  M.  0. 37, 1909, 9;  40, 1909, 2; 

47,  1910,  4;  49,  1910,  16. 

41.  Beading  "aloud."    See  ALOUD,  1. 

42.  Records  ol  officers.    See  RECORDS  OF  OFFICERS;  REPORTS  ON  FITNESS. 

43.  Record  of  Army  trial — The  record  of  trial  by  general  court-martial  while  serving  in 

the  Army  is  inadmissible  as  evidence  to  show  mental  irresponsibility  in  a  trial  before 
a  naval  court-martial  subsequently,  and  a  request  by  the  defense  for  postponement 
until  copy  of  such  record  of  trial  is  secured  was  properly  overruled.  C.  M.  O.  17, 
1910,  9.  See  also  ARMY,  13. 

44.  Record  of  proceedings— Not  competent  as  evidence  in  another  trial.   C.  M.  0 . 47, 1910, 

6;  49, 1910, 10.    See  also  FALSE  SWEARING,  5. 

45.  Record  of  proceedings  should  show— The  record  of  proceedings  should  show  affirma- 

tively that  the  documentary  evidence  was  properly  identified;  that  it  was  submitted 
to  the  party  against  whom  offered  and  the  court;  whether  objection  was  made  to  its 
receipt  hi  evidence;  and  if  objected  to,  the  court's  action  thereon;  that  it  was  received 
in  evidence  if  unobjected  to  or  the  court  permitted  it  to  be  received  over  an  objection; 
and  finally  notation  made  as  to  whether  the  original  or  a  certified  copy  of  the  extract 
read  is  appended  to  the  record.  (Navy  Regulations,  1913,  R-780  (2);  Forms  of  Pro- 
cedure, 1910,  pp.  31-32;  C.  M.O.  28, 1909,  p.  2;  37, 1909,  p.  9;  40, 1909,  p.  2;  42, 1909,  p.  11; 
47, 1910,  p.  4;  17, 1910,  p.  4;  28, 1910,  p.  7.)  When  documentary  evidence  is  ruled  out, 
neither  the  original  nor  a  certified  copy  need  be  appended  to  the  record,  but  its  con- 
tents should  be  referred  to.  so  that  the  reviewing  authorities  may  know  what  the 
documents  was.  (Forms  of  Procedure,  1910,  p.  33.)  C.  M.  O.  41,  1914,  4-5. 

When  documentary  evidence  is  offered,  it  must  be  in  public  session  of  the  court, 
and,  if  admitted,  the  document  in  full,  or  an  authenticated  copy  thereof,  must  be 
appended  to  the  record.  (R-780  (2).)  See  C.  M.  0. 108,  1899. 

46.  Records  of  officers— As  evidence.    See  RECORDS  OF  OFFICERS;  REPORTS  ON  FITNESS. 

47.  Reports  of  deserters  received  on  board.   See  REPORTS  OF  DESERTERS  RECEIVED 

ON  BOARD;  SERVICE  RECORDS. 

48.  Reports  on  fitness.    See  RECORDS  OF  OFFICERS;  REPORTS  ON  FITNESS. 

49.  Report  of  surgeon.   See  DRUNKENNESS,  34, 100;  EPILEPSY,  3. 

50.  Ruled  out  by  court.    See  EVIDENCE,  DOCUMENTARY,  45. 

51.  Rules  of  evidence— Should  be  closely  observed.    C.  M.  O.  49, 1910, 16. 

52.  Same— To  be  followed  by  naval  courts-martial.    See  EVIDENCE,  106-109. 

53.  Service  records.    See  SERVICE  RECORDS. 

54.  Ship's  log— To  show  who  was  officer  of  the  deck.    See  SHIP'S  Loo  AS  EVIDENCE. 

55.  Statement  of  accused,  written.    See  STATEMENT  OF  ACCUSED. 

56.  Telegram— To  prove  desertion.    C.  M.  O.  110,  1896,  3.    See  also  TELEGRAMS,  1. 

57.  Textbook— As  evidence.     See  G.  C.  M.  Rec.  23037,  p.  89;  30669.  p.  37;  TEXT  BOOKS. 

58.  True  copy— A  true  copy  should  be  an  exact  copy.    C.  M.  0. 17, 1910, 3;  23, 1910, 3.    See 

also  CERTIFIED  COPIES,  1,  2. 

59.  Unobjected  to— Convening  authority  should  not  notice.    See  CONVENING  AUTHOR- 

ITY, 23;  EVIDENCE,  82, 83, 125;  REVIEWING  AUTHORITY,  9. 

60.  Waived — Documentary  evidence  against  accused  should  be  submitted  to  him  for  the 

purpose  of  affording  him  an  opportunity  to  make  reasonable  objection  to  its  intro- 
duction in  evidence.  But  where  such  was  not  done,  the  accused  being  represented 
by  civilian  counsel,  there  were  no  objections  entered,  and  no  injury  done  accused,  as 
he  was  acquitted,  the  department  held  that  such  irregularity  was  not  considered 
sufficient  to  invalidate  the  proceedings.  C.  M.  O.  47, 1910,  4.  See  also  EVIDENCE,  125. 

61.  Same — Original  evidence  is  waived  if  secondary  evidence  unobjected  to.    C.  M.  O. 

52, 1910,  3. 

EXCEPTIONS. 

1.  Findings.    See  FINDINGS,  27-37. 

2.  Record  of  proceedings— Neither  the  accused  (or  counsel),  judge  advocate,  nor  any 

member  of  the  court  has  any  right  to  enter  an  objection  or  protest  on  the  record. 


228  EXCEPTIONS. 

(Navy  Regulations,  1913,  R-7.-J2  (2).)  C.  M.  O.  17,  1910,  11;  21,  1910,  13-14;  23, 1910,  3; 
19,  1912,  6;  49,  1915,  11;  File  26287-3475,  Sec.  Navy,  July  5, 1910.  See  also  BILLS  OF 
EXCEPTIONS,  1. 

3.  Same — Counsel  for  accused,  in  a  summary  court-martial  case,  repeatedly  "noted  an 

objection"  to  rulings  of  the  court — this  in  violation  of  Navy  Regulations,  1913, 
R-611  (9),  R-752  (2);  C.  M.  O.  49,  1915,  11.  File  20287-3475,  Sec.  Navy,  July  5,  1916. 

See  Q.  C.  M.  Rec.  16098,  p.  4,  where  counsel  for  accused  asked  for  an  "exception," 
which  the  court  granted. 

In  commenting  upon  a  certain  case  the  department  stated  in  part:  "It  may  further 
be  remarked  that  counsel  for  the  accused  repeatedly  'noted  an  objection'  to  the  rul- 
ings of  the  court,  this  in  violation  of  articles  R-611  (9)  and  R-752  (2),  Navy  Regula- 
tions, 1913  (C.  M.  O.  49, 1915,  p.  11)."  File  26287-3475,  Sec.  Navy,  July  5, 1916. 

4.  "Statement  of  exceptions" — As  to  findings  and  opinion  by  Court  of  Inquiry  by  the 

applicant.    Ct.  Inq.  Rec.  4952,  pp.  1831,  1843. 

EXCESSIVE  SENTENCES. 

1.  General  court-martial — Accused  was  tried  for  "Absence  from  station  and  duty 

without  leave."  "Theft,"  and  "Scandalous  conduct  tending  to  the  destruction  of 
good  morals.  Limitations  to  punishments  were,  respectively:  Six  months,  two 
years,  and  two  years.  Sentence  was  four  years  six  months.  Court  exceeded  its 
powers,  sentence  reduced  to  three  years,  and  it  is  believed  that  such  reduction  will 
be  in  interests  of  justice,  irrespective  of  whether  the  court  was  within  its  powers, 
because  of  small  value  of  articles  stolen.  Second  and  third  charges  were  same  offense. 
File  20251-3756;  2,  JAG,  Nov.  15,  1912.  See  also  EXCESSIVE:  SENTENCES,  3. 

2.  Same — The  accused   (paymaster's  clerk)   was   tried  on   three  charges,   "Assault 

with  intent  to  commit  rape,"  "Indecent  assault,"  and  "Scandalous  conduct  tend- 
ing to  the  destruction  of  good  morals."  All  of  the  charges  and  the  specifications 
thereunder  were  one  and  the  same  transaction.  The  court  sentenced  the  accused  to 
dismissal  and  imprisonment  at  hard  labor  for  thirty  years. 

This  case  was  approved  by  the  Department  on  December  1, 1913,  with  the  following 
remarks: 

All  of  the  charges  and  the  specifications  thereunder  allege  one  and  the  same  transac- 
tion. The  court,  therefore,  should  have  imposed  but  one  penalty,  and  should  not 
have  sentenced  the  accused  to  a  greater  punishment  than  that  authorized  for  the 
highest  degree  of  the  crime  of  which  the  accused  was  found  guilty. 

"Where  two  counts  in  an  indictment  charge  dili'erent  crimes,  which  are  of  the 
same  character  and  which  grow  out  of  the  same  transaction  yet  diiler  in  degree,  the 
sentence  based  on  a  general  verdict  of  guilt  y  must  impose  only  one  penalty,  and  a 
separate  sentence  for  each  crime,  imposing  a  separate  punishment  for  it,  is  erroneous 
and  void."  (12  Cyc.  774.) 

"Where,  as  is  a  common  practice,  one  crime  is  charged  in  several  good  counts  in 
one  indictment,  in  different  degrees,  and  a  general  verdict  of  guilty  is  rendered  thereon 
on  sufficient  evidence,  the  accused  may  be  sentenced  upon  that  count  of  the  indict- 
ment which  charges  the  highest  degree  of  crime. "  (12  Cyc.  775.) 

"  When  an  indictment  has  several  counts  which  either  charge  the  same  offense  in 
different  counts,  to  guard  against  insufficiency  of  allegation,  or  which,  in  fact,  as  well 
as  form,  refer  to  and  charge  separate  and  distinct  offenses,  the  sentence  to  be  imposed 
upon  a  conviction  grounded  on  such  indictment  will  depend  upon  whether  the  use 
of  the  multiplicity  of  counts  was  for  one  or  the  other  of  these  purposes."  (25  Am.  & 
Eng.  Enc.  of  Law,  308.) 

A  recent  case  in  support  of  the  doctrine  quoted,  supra,  is  that  of  the  Standard  Oil  Co. 
of  Indiana  v.  United  States  (164  Fed.  Rep.  376.)  In  this  case  a  U.  S.  District  Court 
found  the  plaintiff  in  error  guilty  upon  1,462  counts  of  an  indictment  and  assessed  the 
plaintiff  the  maximum  fine  for  each  count.  In  this  case  each  count  was  based  upon  an 
illegal  concession  of  each  and  every  shipment  made  by  the  plaintiff  in  error,  irrespec- 
tive of  whether  each  shipment  was  of  the  same  or  of  a  different  transaction.  In  speak- 
ing of  this  feature.  Judge  Orosscup,  of  the  Court  of  Appeals,  said: 

"The  offense  of  accepting  a  concession  is  the  'transaction'  that  the  given  rebate 
consummates — not  the  units  of  more  measurement  of  the  physical  thing  transported, 
but  the  'transaction'  whereby  the  shipper,  for  the  thing  snipped,  no  matter  how 
great  or  how  little  its  quantity,  received  a  rate  different  from  the  established  rate— 
the  wide  range  between  the  maximum  and  minimum  punishment  being  donbtless 
thought  to  be  a  sufficient  range  within  which  to  differentiate  the  punishment  adapted 
to  one  transaction  from  the  punishment  adapted  to  another.  The  number  of  offenses 
in  the  present  case  should  have  been  ascertained  in  accordance  with  these  princi- 
ples. The  measure  adopted  by  the  trial  court  was  wholly  arbitrary — had  no  basis 


EXCESSIVE    SENTENCES.  229 

in  any  intention  or  fixed  rule  discoverable  in  the  statute.  And  no  other  way  of  measuring 
the  number  of  offenses  seems  to  have  been  given  a  thought  either  by  the  Government 
or  the  trial  court." 

The  judgment  of  the  district  court  was  reversed  and  the  case  remanded  with 
instructions  to  grant  a  new  trial,  and  proceed  in  further  accordance  with  this  opinion. 

In  view  of  the  foregoing,  the  department  considered  that  the  court  has  adjudged 
an  excessive  punishment  in  the  present  case,  and  that  in  accordance  with  the  well- 
established  rule  of  law,  the  sentence  should  not  have  been  greater  than  the  punish- 
ment authorized  for  the  highest  offense  of  which  the  accused  was  found  guilty,  which, 
in  this  case,  is  scandalous  conduct  tending  to  the  destruction  of  good  morals,  the 
maximum  punishment  for  which  offense,  in  the  case  of  an  officer,  is  dismissal  and 
imprisonment  at  hard  labor  for  fifteen  years. 

Although  it  is  considered  that  the  sentence  is  in  excess  of  the  punishment  authorized 
by  law,  only  the  unauthorized  portion  of  the  sentence  is  void.  This  appears  to  be  a 
settled  rule  of  law.  A  leading  case  bearing  upon  this  feature  is  that  of  U .  S.  v.  Pridgeon, 
153  U.  8.,  48,  in  which  it  is  stated: 

"  Where  a  court  has  jurisdiction  of  the  person  and  the  offense,  the  imposition  of  a 
sentence  in  excess  of  what  the  law  permits  does  not  render  the  legal  or  authorized 
portion  of  the  sentence  void,  but  only  leaves  such  part  of  it  as  may  be  in  excess  open 
to  question  and  attack."  [See  also  HOWARD  v  MOYER,  (206  Fed.  Rep.  555)]. 

In  view  of  the  foregoing,_  the  proceedings  and  findings  in  this  case  were  approved, 
but  as  the  maximum  punishment  which  can  be  imposed  for  any  one  of  the  charges 
of  which  the  accused  was  found  guilty  is  dismissal,  and  imprisonment  at  hard  labor 
for  fifteen  years,  the  department,  on  December  1,  1913,  set  aside  so  much  of  the  sen- 
tence as  relates  to  imprisonment  which  is  in  excess  of  fifteen  years.  The  department 
in  its  action  also  approved  the  action  of  the  convening  authority  that  the  Government 
prison  at  the  United  States  Naval  Station,  Tutuila,  be  designated  as  the  place  for  the 
execution  of  tnat  part  of  the  sentence  which  relates  to  imprisonment  at  hard 
labor.  C.  M.  O.  35. 1913.  See  also  C.  M.  O.  211, 1902;  108, 1905;  42, 1909,  9;  15, 1910, 12. 
3.  Same — Prior  to  April  12, 1911,  the  department  had  held  that  a  sentence  which  exceeded 
the  period  of  limitation  to  punishment  prescribed  by  the  President,  and  which  was 
not  cured  by  the  court  in  revision,  was  (1)  illegal;  (2)  irregular;  and  (3)  "in  excess  of 
that  allowed  by  law."  But  on  that  date  the  department  held  that  so  much  of  the 
confinement  as  exceeded  the  period  of  limitation  prescribed  was  not  capable  of 
execution;  that  the  sentence  in  that  respect  was  voia ab  initio  and  that  the  approval 
of  the  excessive  part  of  the  sentence  could  be  and  properly  should  be  set  aside  as 
void.  But  so  much  of  the  confinement  as  was  within  the  period  of  limitation  was 
held  to  be  valid  and  capable  of  erectition,  and  the  approval  of  the  sentence  was  held 
to  be  valid  as  to  that  part  which  did  not  exceed  the  limitation  prescribed. 

The  rule  is  that  the  sentence  is  legal  when  it  is  in  the  form  required  and  proper  in 
its  natitre,  provided  the  excess  is  separable  and  may  be  dealt  with  without  dis- 
turbing the  valid  portion  of  the  sentence.  But  a  sentence  providing  for  "flogging" 
in  addition  to  confinement  at  hard  labor  would  be  different  in  nature  and  could  not 
be  separated,  and  would  be  illegal.  G.  C.  M.  Rec.  23271. 

4.  Same— For  sentences  which  exceeded  the  limitations,  see  C.  M.  O.  42,  1909,  11;  49,  1910, 

17;  14,  1910,  7;  15, 1910,  7;  17,  1910,  6;  26,  1910,  5;  28,  1910,  5;  30,  1910,  8;  19,  1911,  4; 
2,  1912,  4;  6,  1913,  4;  G.  C.  M.  Rec.  23271. 

5.  Summary  court-martial — Where  an  enlisted  man  has  been  sentenced  to  lose  pay  in 

excess  of  three  months,  the  department  held  that  when  the  court  has  jurisdiction 
over  the  person  and  offense  the  sentence  is  legal  so  far  as  it  is  within  the  provisions  of 
law,  and  that  it  is  void  only  as  to  the  excess  when  such  excess  is  separable  and  may 
be  dealt  with  without  disturbing  the  valid  portion  of  the  sentence.  The  department 
accordingly  set  aside  as  void  so  much  of  the  loss  of  pay  as  was  in  excess  of  that  which 
a  summary  court-martial  is  authorized  to  adjudge.  File  26287-11543,  Sec.  of  Navy, 
April  2,  1913.  See  also  G.  C.  M.  Rec.  23271. 

EXCLUSION  OF  WITNESSES  FROM  COURT  ROOM.    See  EXPERT  WITNESSES,  10. 

EXCUSE. 

1.  Drunk  "night  before"— No  excuse  for  being  drunk  next  morning.    See  DRUNK- 

ENNESS. 61. 

2.  Drunkenness,  voluntary — No  excuse  for  unauthorized  absence.    See  ABSENCE  FROM 

STATION  AFTER  LEAVE  HAD  EXPIRED,  9,  10;  DRUNKENNESS,  1. 

3.  Ignorance  of  law — No  excuse.    See  COURT,  87;  DESERTION,  110;  FRAUDULENT  EN- 

LISTMENT, 23;  IGNORANCE  OF  LAW. 

4.  Insanity.    See  INSANITY,  13. 

5.  Positive  belief— That  an  act  is  lawful  is  no  excuse,  etc.    C.  M.  O.  10, 1913,  4. 


230  EXEMPTIONS    IN   SENTENCES. 

EXECUTING  A  FRAUD  AGAINST  THE  UNITED  STATES  IN  VIOLATION  OF 
ARTICLE  FOURTEEN  OF  THE  ARTICLES  FOR  THE  GOVERNMENT 
OF  THE  NAVY. 

1.  Officers— Charged  with.    C.  M.  O.  27, 1911;  7, 1913. 

2.  Paymaster's  clerk— Charged  with.    C.  M.  O.  29, 1911;  26, 1915. 

EXECUTION  OF  DISCHARGE  AS  A  REMISSION  OF  PAY.  See  BAD-CONDUCT 
DISCHARGE,  3. 

EXECUTIVE  OFFICER. 

1.  "Aid  or  Executive"— At  one  time  Executive  officer  was  so  called.    G.  0. 194,  August  2, 

1875. 

2.  Oaths— Administration  of.    See  OATHS,  16-18,  49. 

EXECUTIVE  ORDER. 

1.  Marines— Detached  for  service  with  Army.  C.  M.  O.  31, 1915,  6-10.  See  also  MARINES 
SERVING  WITH  ARMY. 

EXEMPTIONS  IN  SENTENCES. 

1.  Convening  authority  can  not  commute— The  department  stated  in  part:  It 
"appears  that  the  commander  in  chief,  in  mitigating  the  sentence,  has  violated 
article  54  of  the  Articles  for  the  Government  of  the  Navy,  in  which  he  is  given  the 
power  to  remit  or  mitigate,  but  not  to  commute,  a  sentence,  as  he  has  done  in  this 
instance  by  adding  to  the  punishment  given  by  the  court,  for  the  mitigation  as  re- 
corded, deprives  the  accused  of  the  $3  per  month  for  necessary  prison  expenses  and 
the  $25  allowed  him  by  the  court  at  the  time  of  his  discharge.  Inasmuch  as  this  ac- 
tion is  illegal,  the  department  directs  that  the  accused  be  given  the  $3  per  month, 
and  the  $25  at  the  expiration  of  his  confinement,  as  provided  in  the  original  sen- 
tence." C.  M.  O.  150,  1897,  3.  See  alto  C.  M.  O.  17,  1910,  8  ;  12  Comp.  Dec.  815;  9 
Comp.  Dec.  618;  91  S.  and  A.  Memo.  841. 

In  recommendingthe  new  form  of  general  court-martial  sentence  set  forth  in  Navy 
Regulations,  1913,  R-816  (4)  containing  the  words  "and  to  suffer  all  the  other  acces- 
sories of  said  sentence,"  the  Judge  Advocate  General  stated:  The  above  change  is 
recommended  for  the  reason  that  "in  the  large  number  of  cases  in  which  sentences 
of  dishonorable  discharge  imposed  upon  enlisted  men  are  remitted  in  accordance  with 
the  present  system  of  administration  of  justice  in  the  Navy,  will  obviate  the  necessity 
of  paying  such  men  when  restored  to  duty  the  sum  which  the  court  excepted  from 
forfeiture  for  the  specific  purpose  of  being  paid  them  when  dishonorably  discharged, 
but  which,  under  decisions  of  the  Comptroller  of  the  Treasury,  they  now  receive  not- 
withstanding the  dishonorable  discharge  is  remitted.  (91  8.  and  A.  Memo.  841.)  In 


during  the  last  year.    File  3980-1049,  J.  A.  G.,  Feb.  2, 1915. 

2.  Necessary  prison  expenses— The  convening  authority,  in  acting  upon  the  case  of  a  man 

sentenced  to  confinement  and  discharge,  with  the  customary  exemption  from  forfei- 
ture of  pay  of  twenty  dollars  ($20)  to  be  paid  him  on  discharge,  remitted  the  discharge 
and  then  stated  in  his  action  that  that  part  of  the  sentence  referring  to  the  twenty 
dollars  to  be  paid  the  accused  when  discharged  would  be  withheld.  The  department 
held  that  as  such  exemption  accrued  to  the  benefit  of  the  accused  he  was  entitled  to 
it  at  the  end  of  his  confinement  and  it  must  be  credited  to  him  then,  and  that  the  action 
of  the  convening  authority  in  withholding  such  from  him  was  in  error.  C.  M.  O.  17, 
1910,  8.  See  also  G.  C.  M.  Rec.  28521. 

3.  Same — By  a  display  of  gross  carelessness  by  the  entire  personnel  of  the  court  a  sentence 

was  adjudged  in  which  the  accused  was  allowed  twenty  dollars  a  month  for  necessary 
prison  expenses. 

The  customary  exemption  is  three  dollars  a  month  for  necessary  prison  expenses. 
C.  M.  O.  14,  1913,  5. 

4.  Same — The  customary  exception  for  prison  expenses  is  three  dollars  per  month  and  it  is 

desirable  that  all  general  court-martial  prisoners  be  placed  upon  an  equal  basis,  as 
far  as  forfeitures,  exemptions,  and  allowances  for  prison  expenses  are  concerned,  in 
the  absence  of  good  reason  to  the  contrary. 

Therefore  a  court  should  not  include  in  a  sentence  an  exemption  of  two  instead  of 
three  dollars  for  necessary  prison  expenses. 

The  record  was  returned  to  the  court  for  a  reconsideration  of  the  sentence  and 
revised  the  same  to  exempt  three  dollars.  C.  M.  O.  28, 1912,  3;  20, 1913, 3. 


EXEMPTIONS    IN"    SENTENCES.  231 

5.  Same— The  sentence  of  a  general  court-martial  must  set  forth  the  manner  in  which  the 

excepted  three  dollars  a  month  is  to  be  applied.  The  regulations  permitting  such 
exception,  and  the  customs  of  the  service,  provide  that  the  exception  referred  to  is 
for  necessary  expenses.  C.  M.  O.  42, 1909,  5. 

6.  Paid  on  discharge— Exemption  of  $20 is  not  subject  to  action  of  convening  or  reviewing 

authority,    See  EXEMPTIONS  IN  SENTENCES,  1 ,  2. 

7.  Same — Exemption  of  $20  may  not  be  withheld  if  dishonorable  discharge  is  remitted. 

But  see  EXEMPTIONS  m  SENTENCES,  l;  SENTENCES,  3. 

8.  Same — Sentences  of  general  courts-martial  involving  forfeiture  of  pay  and  discharge 

shall  provide  that  the  accused  shall  be  paid  $20  when  discharged.  (R-S16  (5).)  See 
G.  O. 196,  Dec.  15,  1875. 

9.  Same — In  a  case  where  a  general  court-martial  sentence  provided  for  an  exemption  of 

$30  to  be  paid  on  dishonorable  discharge  the  department  in  part  stated :  "This  sum  is 
in  excess  of  that  usually  provided  for  as  exemption  from  forfeiture  of  pay,  the  cus- 
tomary exemption  being  but  ?20.  It  is  considered  desirable  that  naval  general  court- 
martial  prisoners  be  placed  upon  the  same  basis  as  nearly  as  practicable,  particularly 
so  far  as  concerns  the  gratuity  to  be  paid  when  discharged  from  the  service  pursuant 
to  the  sentence."  C.  M.  0. 1, 1913,  5.  See  also  EXEMPTIONS  IN  SENTENCES,  8. 

EXHIBITS. 

1.  Officers'  records— As  exhibits.    C.  M.  O.  29, 1915,  8. 

2.  Record— Properly  secured  to  record.    C.  M.  0. 16, 1915,  4. 

EXIGENCIES  OF  THE  SERVICE. 

1.  Promotion  of  Marine  officers— Delayed  by.    C.  M.  O.  29,  1915,  9. 

2.  Reconvening  of  court— Prevented  by.    See  COURT,  143,  146. 

EXPATRIATION.    See  also  WORDS  AND  PHRASES. 

1.  Evidence  as  to.    See  CITIZENSHIP,  17, 18;  KETIRED  OFFICERS,  31. 

2.  Naturalized  by  foreign  state— Act,  March  2,  1907,  sec.  2  (34  Stat.  1228)  provided 

that  "any  American  citizen  shall  be  deemed  to  have  expatriated  himself  when  he  has 
been  naturalized  in  any  foreign  state  in  conformity  with  its  laws,  or  when  he  has 
taken  an  oath  of  allegiance  to  any  foreign  state."  File  26252-104,  J.  A.  G.,  April  25, 
1916. 

EXPERT  WITNESSES.    See  also  EVIDENCE,  12;  HYPOTHETICAL  QUESTIONS,  2-4. 

1.  Court  of  Inquiry — Fees.    See  EXPERT  WITNESSES,  3,  4, 

2.  Drunkenness — A  naval  surgeon,  an  expert,  stated  in  effect,  that  no  other  drug  than 

alcohol  would  account  for  the  condition  of  the  accused.  C.  M.  O.  36,  1898,  2.  See 
also  C.  M.  O.  92,  1905,  3. 

3.  Employment  of— Authority  of  department  required— The  compensation  of  expert 

testimony  is  a  matter  for  determination  between  the  witness  and  the  party  calling 
him  for  such  testimony.  If  a  naval  court-martial  or  court  of  inquiry  desires  to  employ 
and  subpoena  a  witness  at  an  expense  to  the  Government,  to  testify  as  an  expert,  the 
authority  of  the  department  in  each  specific  instance  must  first  be  obtained.  (File 
26276-105  (medical  expert);  file  26251-10626:1,  Sec.  Navy,  May  15,  1915  (handwriting 
expert).  See  also  C.  M.  0. 12, 1915,  p.  13.)  C.  M.  O.  20,  1915,  6. 

4.  Fees  for — A  civilian  doctor  who  had  been  subpoenaed,  as  an  ordinary  witness,  to  testify 

as  to  the  facts  of  the  question  under  investigation  before  a  court  of  inquiry,  submitted 
a  claim  for  $100  for  expert  witness  fees  for  two  days  attendance.  Held,  The  claimant 
having  been  summoned  as  an  ordinary  witness  and  not  as  an  expert,  and  the  authority 
of  the  department  not  having  been  obtained  to  employ  the  above  witness  as  an  expert, 
he  is  not  extitled  to  fee  as  an  expert  but  only  at  the  rate  of  $1.50  per  day,  the  same  as 
allowed  in  the  civil  courts  of  the  State  in  which  the  court  of  inquiry  sat.  (Navy 
Regulations,  1913,  R-4542;  Forms  of  Procedure,  1910,  pp.  67-72.)  File  26276-105, 
Sec.  Navy,  March46,  1915;  C.  M.  O.  12, 1915,  13. 

5.  Handwriting.    See  G.  C.  M.  Rec.  30684,  pp.  264-  292;  EXPERT  WITNESSES,  3. 

6.  Medical.    See  EXPERT  WITNESSES,  3. 

7.  Same — Medical  experts  are  in  practice  employed  and  paid  by  the  accused,  and  are  not 

summoned  by  the  Government  as  witnesses  for  the  accused.  G.  C.  M.  Rec.  28613; 
29422;  Ct.  Inq.  Rec.  5777. 

8.  Officer— In  private  litigation.    See  File  1981-00;  6053,  Oct.  30,  1906.    See  also  EXPERT 

WITNESSES,  11;  MERCHANT  VESSELS,  3. 


232  EXPERT   WITNESSES. 

9.  Ordinary  witness— Not  to  be  examined  as  an  expert— A  medical  officer  of  the  Navy  was 

called  by  the  prosecution  as  an  ordinary  witness  to  the  facts  of  the  case.  Upon  cross- 
examination  counsel  for  theaccused  examined  the  witness  at  length  as  an  "expert," 
stating  in  one  part  of  the  cross-examination,  "  I  ask  you  this  as  a  medical  expert." 
(Rec.  p.  154.)  The  mere  fact  that  a  person  who  witnessed  a  certain  act,  which  is  a 
violation  of  the  law,  happens  to  be  a  professional  man,  does  not  constitute  him  an 
expert  when  he  testifies  as  to  his  observation  of  that  act.  "All  persons  in  the  course  of 
ordinary  life  are  liable  to  witness  the  transactions,  or  casualties,  or  crimes  of  their 
fellowmen  ...  A  surgeon  walking  down  the  street  and  witnessing  an  accident 
or  murder  may  describe  the  injuries  of  the  victim  more  clearly  than  an  ordinary 
beholder.  But  he  is  not  an  expert;  he  is  merely  the  fortuitous  witness  of  an  occurrence 
concerning  which  he  may  be  made  to  testify."  (Smith  v.  U.  S.,  24  Ct.  Cls.  210.) 
In  this  case  the  irregular  examination  of  the  witness  having  been  made  by  the  defense, 
and  not  being  prejudicial  to  the  interests  of  the  accused,  did  not  invalidate  the  pro- 
ceedings. C.  M.  O. 19,  1915,  5. 

In  one  case  a  general  court-martial  properly  sustained  an  objection  to  one  who  was 
called  as  an  ordinary  witness,  testifying  as  an  expert  when  he  had  not  qualified  as 
such.  G.  C.  M.  Rec.  31925,  p.  9. 

10.  Presence  during  trial— In  a  recent  general  court>martial  case  a  question  was  raised 

by  the  request  of  counsel  for  the  accused  that  two  expert  witnesses  be  allowed  to  be 
present  throughout  the  trial  and  hear  all  of  the  testimony  adduced. 

In  civil  courts  "the  exclusion  of  witnesses  from  the  court  room  is  a  matter  lor  the 
discretion  of  the  court,  and  not  a  matter  of  right. "  So  also ' '  even  after  the  rule  or  order 
has  been  granted  sequestering  the  witnesses,  it  is  within  the  discretion  of  the  trial 
judge  to  permit  some  of  them  to  remain  and  testify  if  the  circumstances  require  it; 
and  so  if  asked  to  exclude  all  of  the  witnesses  it  is  within  his  discretion  to  send  out  only 
a  portion  of  them.  This  rule  has  been  applied  to  the  following  witnesses:  Attorneys, 
court  officers,  experts,  and  relatives  of  the  accused."  (12  Cyc.  546-547.) 

In  naval  court-martial  procedure,  however,  it  is  expressly  required  that  "before 
the  charges  and  specifications  are  read  to  the  accused,  the  president  of  the  court  shall 
caution  all  witnesses  in  the  case  to  withdraw  and  not  to  return  until  they  are  officially 
called.  In  the  outset  of  each  day's  proceedings  the  warning  to  withdraw  shall  be 
repeated  to  all  who  are  cited  as  witnesses  and  may  chance  to  be  present,"  (Navy  Regu- 
lations, 1913,  R-776;  Forms  of  Procedure,  1910,  pp.  21,  22).  and  "when  the  court  has 
finished  with  a  witness,  he  shall  be  directed  to  retire,  and  a  minute  shall  be  entered 
on  the  record  to  the  effect  that  the  witness  withdraws  to  show  that  two  witnesses  are 
not  in  court  at  the  same  time."  (Navy  Regulations,  1913,  R-789;  Forms  of  Procedure, 
1910,  pp.  26,  36.) 

It  will  thus  be  seen  that  naval  procedure  differs  from  that  In  the  civil  courts,  no 
discretion  being  vested  in  a  naval  court-martial  to  allow  any  witnesses  to  be  present; 
the  only  cases  where  certain  witnesses  are  allowed  to  remain,  such  as  the  accused,  the 
judge  advocate,  or  members  of  the  court,  being  specifically  authorized.  Since  the 
Navy  Regulations  are  explicit  on  the  subject,  and  under  their  provisions  expert 
witnesses,  the  same  as  all  other  witnesses,  must  be  excluded  unless  the  regulations 
should  be  modified  or  waived  by  competent  authority,  the  court  errs  if  it  permits  them 
to  remain.  In  the  case  in  question  the  court  permitted  the  experts  to  remain  in  the 
court  room,  but  such  action  having  been  taken  on  motion  of  counsel  for  the  accused 
and  not  being  prejudicial  to  the  accused,  did  not  invalidate  the  proceedings.  G.  C.  M. 
Rec.  No.  29422;  File  26251-9280;  C.  M.  O.  51,  1914,  8-9. 

11.  Private  litigation— An  officer  giving  expert  testimony  in  a  suit  between  private  parties 

may  receive  compensation  therefor  at  the  usual  rates  in  accordance  with  his  agree- 
ment with  the  party  for  whom  he  appeared.  File  1981-1900,  J.  A.  G.  See  also  File 
6053,  Oct.  30, 1906;  26276-125,  Nov.  1915;  MERCHANT  VESSELS,  3,  4. 

'  12.  Scope  of  rules  governing  expert  testimony— A  court  errs  when  it  allows  opinion 
evidence  to  be  given  by  medical  witnesses  in  answer  to  hypothetical  questions,  when 
such  witnesses  have  not  qualified  as  experts  and  are  admittedly  not  competent  to 
give  such  testimony  as  to  mental  diseases.  Their  testimony  can  not,  therefore,  be 
accepted  by  the  court  as  of  any  special  value  In  arriving  at  a  conclusion  in  a  case.  A 
court  also  errs  in  allowing  medical  witnesses  to  state  directly  their  opinion  as  to 
whether  or  not,  from  the  facts  in  evidence,  the  accused  in  the  case  is  responsible  for 
his  acts.  The  law_  allows  medical  experts  to  state  their  opinion  upon  an  assumed 
state  of  facts,  but  it  does  not  permit  them  to  express  their  opinion  upon  the  specific 
question  whether  or  not  upon  the  evidence,  the  accused  is  responsible— that  is.  guilty 
of  the  acts  charged.  This  is  the  very  question  which  the  court  is  convened  and  sworn 


EXPERT   WITNESSES.  233 

to  determine  upon  its  own  opinion,  and  to  allow  a  witness  to  express  his  opinion  on 
this  point  is  an  attempted  delegation  of  the  court's  powers  and  duties.  The  witness 
in  forming  his  opinion  may  accept  certain  facts  as  true  which  the  court  upon  the 
evidence  would  not  regard  as  proved.  Accordingly,  the  question  to  an  expert  is — 
assuming  that  certain  facts  exist,  state  what  is  your  opinion.  The  court  must,  there- 
fore, decide  for  itself  upon  the  question  of  the  accused's  guilt,  and  can  not  under  its 
oath  allow  certain  witnesses  to  decide  the  case.  C.  M.  O.  24, 1914,  22.  SeealsoC.  M.  O. 
51, 1914,  6-8;  12, 1917;  ACCUSED,  2. 

13.  Same — "It  does  not  follow,  because  a  witness  is  duly  qualified  and  the  general  sub- 
ject is  a  proper  one,  that  his  judgment  can  be  asked  on  any  branch  of  the  inquiry. 
The  precise  point  of  each  individual  inquiry  must  be  beyond  the  intelligence  of  an 
average  jury,  and  'so  far  ^partake  of  the  nature  of  a  science  as  to  require  a  course  of 
previous  habit  or  study  in  order  to  an  attainment  of  a  knowledge  of  them.'  "  (17 
Cyc.,  45).  Thus,  the  accused  being  present  in  court,  where  his  demeanor  and  atti- 
tude may  be  observed  by  the  members,  an  expert  witness  is  not  permitted  to  testify 
that  he  has  observed  the  attitude  of  the  accused  during  the  trial  and  state  in  his  opinion 
it  indicated  indifference,  lack  of  comprehension,  and  that  the  accused  was  not  con- 
siderably affected  or  worried  by  the  situation,  as  a  normal  person  would  be.  This  is 
a  matter  concerning  which  expert  testimony  is  neither  necessary  nor  proper.  "  Thus 
it  has  been  held  to  be  unnecessary  to  rely  upon  the  inferences  of  witnesses  as  to  a  fact 
when  all  doubt  has  been  or  may  be  set  at  rest  by  the  use  of  the  senses,  either  directly 
or  through  the  use  of  plans  or  photographs."  (17  Cyc.,  41).  "Where  the  fact  is  one 
cognizable  by  any  ordinary  observer  and  the  inferences  from  it  may  be  drawn  by  the 
jury  themselves,  before  whom  it  is  produced  for  inspection,  no  statement  by  a  wit- 
ness as  to  his  inferences  are  necessary  and  therefore  such  evidence  is  rejected."  (17 
Cyc.,  41.) 

"  The  judgment  of  an  expert  must  be  more  than  a  guess.  A  tribunal  which  is  called 
upon  to  decide  a  definite  issue  of  _fact  by  the  use  of  the  reasoning  faculty  can  not  be 
aided  where  no  mental  certainty  is  shown  by  a  witness.  That  a  judgment  is  based 
upon  conjecture  shows  that  little  or  no  aid  can  be  given  the  jury  on  this  point  by 
witnesses,  however  skilled,  and  therefore  evidence  of  it  is  rejected."  (17  Cyc.,  226.) 
Thus,  whether  or  not  it  is  possible  that  certain  manifestations  of  a  disease  may  be 
feigned  may  be  a  proper  subject  of  expert  testimony.  But  whether  or  not,  in  a  par- 
ticular case,  such  symptoms  were  or  were  not  feigned  by  the  accused  obviously  can  not 
be  testified  to  by  a  witness  who  did  not  see  the  accused  at  the  time,  and  whose  opinion 
is  necessarily  based  on  conjecture.  The  medical  feature  being  established,  that  cer- 
tain symptoms  may  be  feigned  under  certain  circumstances,  it  is  the  duty  of  the 
court  to  draw  its  own  inference  therefrom  as  to  the  particular  case;  little  or  no  aid  can 
be  given  the  court  by  witnesses,  however  skilled,  and  testimony  of  an  expert  that  "  I 
do  not  think  it  was  feigned"  is  incompetent. 

"  The  witness  can  not  be  asked  to  apply  the  standard  of  law  involved  in  the  case; 
for  example  whether  the  person  in  question  had  sufficient  mental  capacity  to  make 
a  will,  or  to  be  responsible  for  his  criminal  acts  by  knowing  the  difference  between 
right  and  wrong,  or  for  his  conduct  in  civil  matters,  as  such  a  question  unnecessarily 
invades  the  province  of  the  court  or  jurv."  (17  Cyc.,  238.)  "Thus  on  an  issue  of 
insanity  on  an  indictment  for  homicide  it  is  not  permissible  for  defendant  to  ask  a 
medical  expert '  when  the  defendant  has  been  undeniably  subject  to  fits  of  epilepsy, 
should  he  not  have  the  benefit  of  every  reasonable  doubt  that  might  arise  as  to  his 
sanity.'"  (17  Cyc. ,238.) 

The  question  whether  or  not  the  accused  is  responsible  for  a  criminal  act  com- 
mitted by  him,  is  the  very  question  which  the  court  must  determine,  and  therefore 
the  testimony  of  an  expert  that  "I  feel  that  he  is  not  fully  responsible;  that  he  should 
not  be  held  up  to  the  standard  to  which  a  well  man  should  be  neld ' '  is  not  competent. 
"A  desire  to  economize  time  has  occasionally  induced  the  court  to  permit  a  witness 
examined  as  an  expert  to  ascertain  the  facts  directly  from  the  evidence.  In  some 
jurisdictions,  but  not  in  all,  where  the  facts  are  undisputed,  an  expert  who  has  heard 
all  the  testimony  may  be  asked  for  his  judgment  'upon  the  evidence.'  provided  that 
he  has  heard  the  whole  of  it,  or  is  familiar  with  it,  or  even  upon  such  part  of  it  as  is 
material  to  the  inquiry."  (17  Cyc.,  253-254.)  This  rule,  however,  is  not  applied 
by  the  Federal  courts,  (Manufacturers  Ace.  Indemnity  Co.  v.  Dorgan,  58  Fed.  Rep. 
945,  22  L.  R.  A.,  620),  which  should  be  followed  by  courts-martial,  (Forms  of  Pro- 
cedure, 1910,  p.  135;  C.  M.  O.  21, 1910,  p.  13;  G.  C.  M.  Rec.  No.  24813)  and  is  similarly 
rejected  in  many  well  considered  decisions  of  the  State  courts. 


234  EXPERT   WITNESSES. 

"In  some  jurisdictions  the  practice  of  allowing  an  expert  witness  to  ascertain  the 
facts  directly  from  the  evidence,  instead  of  their  being  embodied  in  a  hypothetical 
question,  has  been  condemned  and  generally  disallowed.  And  even  where  the  prac- 
tice is  allowed  it  is  subject  to  limitations.  There  are  serious  objections  to  any  other 
than  the  hypothetical  question.  (1)  The  course  under  consideration  can  not  be 
adopted  where  the  facts  are  disputed.  The  witness  can  not  properly  be  asked  for  his 
judgment  as  to  disputed  matters  of  fact,  to  comment  on  the  evidence,  or  to  include  his 
'understanding'  of  the  evidence  of  another  witness,  or  as  to  the  credibility  of  a  wit- 
ness. (2)  The  practice  unnecessarily  invades  the  province  of  the  jury.  (3)  It  may  also 
happen  that  the  witness  may  not  be  able  to  recollect  all  the  testimony,  and  to  allow 
him  to  proceed  upon  what  he  chances  to  remember  deprives  all  parties  of  knowledge 
as  to  the  basis  of  his  inference.  (4)  The  same  ignorance  of  the  real  oasis  of  the  inference 
results  where  the  witness  has  not  heard  all  the  material  testimony  and  is  asked  to 
testify  from  what  he  has  heard,  from  what  he  has  seen  and  heard,  or  from  what  he  has 
heard  and  from  newspaper  reports  of  the  remainder  of  the  evidence;  and  evidence 
elicited  by  these  forms  of  question  has  accordingly  been  rejected,  even  where  the 
evidence  of  a  witness  is  incorporated  with  facts  hypothetically  stated."  (17  Cyc., 
255-258.)  C.  M.  O.  51, 1914. 
14.  Weight  of.  See  7  Op.  Atty.  Gen..  165. 

EXPIRATION  OF  LEAVE  OF  ABSENCE. 

1.  Burden— On  individual  to  ascertain  time  of.    C.  M.  O.  23, 1915. 

EXPLOSION  OF  BOILERS.    C.  M.  O.  12,  1915,  9;  36,  1915;  37,  1915;  38,  1915.    See  also 
EMERGENCY,  1,  5;  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  6;  OKDEES,  6,  26. 

EXTENSION  OF  ENLISTMENTS. 

1.  Credit  for  double  time.    See  ENLISTMENTS,  13. 

2.  Good  conduct  medals.    See  GOOD  CONDUCT  MEDALS. 

3.  1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

4.  Marine  Corps.    File  26507-214:8,  J.  A.  G.,  Apr.  5, 1915. 

5.  Minority— The  act  of  August  22, 1912  (37  Stat.,  331),  authorizes  extension  of  enlistment 

only  in  the  cases  of  men  enlisted  for  a  term  of  four  years.  Therefore,  held,  that  a  man 
enlisted  for  minority  can  not  extend  his  enlistment  under  the  provisions  of  said  act. 
File  7657-182,  3.  A.  G.,  Apr.  14,  1913;  C.  M.  O.  29,  1915,  6.  See  also  ENLISTMENTS,  12. 

EXTENUATION. 

1.  Definition— It  may  be  that  matters  of  legal  excuse  and  those  in  extenuation  have  been 

confused.    As  to  this  Winthrop  says  (572): 

"  While  all  matter  of  legal  excuse  will  justly  affect  the  findings,  it  is  quite  otherwise 
with  matter  of  extenuation.  Such  a  matter  can  legitimately  be  considered  only  in 
connection  with  the  sentence  (where  the  punishment  is  discretionary)  or  as  a  basis 
for  a  recommendation  to  clemency;  or  more  properly  by  the  reviewing  authority  in 
taking  action  upon  the  proceedings." 

The  defense  of  the  accused  was  that  he  was  detained  by  civil  authorities,  which  is 
shown  above  to  be  a  legal  excuse  and  not  a  matter  of  extenuatiom.  The  latter  would 
be  some  such  circumstance  as  that  the  accused  did  not  return  at  the  expiration  of  his 
liberty  because  of  illness  in  his  family,  etc.  This,  if  proved,  would  be  taken  into  con- 
sideration in  adjudging  sentence,  or  in  determining  upon  clemency.  C.  M.  O.  5, 
1912, 12. 

2.  Evidence.    C.  M.  0. 17,  1915,  2;  23,  1915,  2. 

3.  Same— Accused  may  introduce  after  plea  of  "Guilty."    See  ACCUSED,  38;  EVIDENCE, 

50-53. 

4.  Witnesses — Record  of  proceedings  should  show  witness  was  called  in  extenuation  if 

such  is  the  case.    See  WITNESSES,  63. 

EXTRA  DUTY. 

1.  Deck  court— May  adjudge  "extra  police  duty,"  not  "extra  duty."    C.  M.  0. 35, 1915, 7. 

EXTRA  NUMBERS. 

1.  Promotion  of.    See  ADDITIONAL  NUMBERS. 


FALSEHOOD.  235 

EXTRA  POLICE  DUTY. 

1.  Deck  court— May  adjudge  "extra  police  duty,"  not  "extra  duty."    C.  M.  0. 35, 1915. 7. 

2.  Sentences.    C.  M.  O.  7, 1914, 11;  33, 1914,  4. 

3.  Same — Except  where  the  offender  is  serving  on  a  receiving  ship  or  at  a  shore  station, 

sentences  involving  extra  police  duties  are  undesirable;  but  this  will  not  be  con- 
strued as  prohibiting  the  imposition  of  this  sentence  on  board  ships  on  which  circum- 
stances render  it  desirable.  See  C.  M.  O.  15,  1910,  12. 

EXTRADITION.    See  Crra  AUTHORITIES,  8,  16,  42;  GENERAL  ORDER  No.  121,  Sept.  17, 
1914, 10;  WORDS  AND  PHRASES. 

FACTS  IN  DISPUTE. 

1,  Court — Findings  of  court  in  general  not  disturbed.    See  CRITICISM  OF  COURTS-MARTIAL, 

FAILING  TO  OBEY  A  LAWFUL  ORDER  OF  ARREST. 

1.  Officer— Charged  with.    C.  M.  0. 82, 1905. 

FAILING  TO  OBEY  THE  LAWFUL  ORDER  OF  HIS  SUPERIOR  OFFICER. 

1.  Warrant  officer— Charged  with.    C.  M.  0. 18, 1912. 

FALLING  AND  INJURING  KNEE. 

1.  Enlisted  man.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  49. 

FALLING  FROM  MAINMAST. 

1.  Enlisted  man— Killed.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  48. 

FALLING  INTO  DRY  DOCK. 

1.  Enlisted  man — Killed.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  60. 

FALSE  CERTIFICATES.    See  CERTIFICATES,  10. 

FALSE  IMPRISONMENT.    See  also  ARREST.  10. 

1.  Actions— For  false  imprisonment.     See  COUNSEL,  29,  36;   MEMBERS  OF  COURTS- 
MARTIAL,  7. 

FALSE  STATEMENTS. 

1.  Evidence  to  prove— A  certain  specification  alleged  that  an  accused  made  certain  false 

statements  before  a  board  of  investigation.  The  accused  pleaded  not  guilty  and  the 
court  found  him  guilty.  No  evidence  was  introduced  to  show  that  the  accused  ever 
made  any  statements  whatever  before  a  board  of  investigation,  or,  in  fact,  ever 
appeared  before  such  board.  It  appeared  to  have  been  assumed  that  the  alleged 
statements  were  made  before  a  board  of  investigation  and  evidence  introduced  only 
to  prove  that  such  presumed  statements  were  false. 

In  view  of  this  insufficient  evidence  the  department  disapproved  the  proceedings, 
findings,  and  sentence.    C.  M.  O.  8,  1911,  8. 

2.  Summary  court-martial— An  enlisted  man  was  tried  by  summary  court-marcial 

for  false  statements  before  a  board  of  investigation.  C.  M.  O.  17,  1916,  8-9;  File 
26287-3475.  See  also  KNOWINGLY,  2. 

FALSE  SWEARING. 

1.  Enlisted  men— Charged  with.     C.  M.  O.  52,  1905,  1;  47,  1910,  5;  File  26251-12618, 

Dec.,  1916. 

2.  Same— Accused  tried  for  false  swearing  before  a  summary  court-martial.    C.  M.  O.  52, 

1905,1. 

3.  Officer— Charged  with.    G.  C.  M.  Rec.  13670. 

4.  Perjury— Since  act  March  4, 1909  (35  Stat.  1111),  false  swearing  and  perjury  are  synony- 

mous.   See  PERJURY,  7. 

5.  Proof  of — The  record  of  proceedings  of  the  trial  of  one  man  is  incompetent  as  evidence 

against  another  on  trial  for  false  swearing,  as  it  is  the  constitutional  right  of  the  accused 
to  be  confronted  with  the  witnesses  against  him.  C.  M.  O.  47,  1910,  5-6.  See  also 
C.  M.  O.  49, 1910, 10;  EVIDENCE.  DOCUMENTARY,  44. 

FALSEHOOD. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 19, 1911, 3.    Seealso  G.  C.  M.  Rec.,  22866. 

2.  Midshipman— Charged  with.    C.  M.  O.  36,  1909;  41, 1909. 

3.  Motive— The  false  statement  made  could  have  had  no  other  motive  than  to  accomplish 

the  result  which  it  actually  did  accomplish,  i.  e.,  to  deceive.    C.  M.  O.  163,  1902,  2. 


236  FALSEHOOD. 

4.  Nature  of— Falsehood  "is  not  a  crime  in  civil  life:"  File  26251-12159,  Sec.  Navy, 

Dec.  9, 1916,  p.  18. 

5.  Officers— Charged  with.    C.  M.  O.  41,  1889;  35,  1892;  11,  1894;  76,  1896;  117,  1902;  163, 

1902;  48, 1904;  92, 1903;  71, 1906;  74, 1907;  26. 1906;  48, 1907;  10, 1908;  23, 1909;  53, 1910; 
24, 1910;  4, 1911;  15. 1911;  32, 1911;  13. 1912;  7, 1913;  37, 1913;  27, 1914;  1. 1910;  G.  C.  M. 
Rec.  8317;  8720;  11173;  13670;  16960;  25063;  C.  M.  O.  10,  1917. 

6.  Same— An  officer  convicted  of  deliberate  falsehood  should  not  be  retained  in  the 

Naval  Service.    See  ADEQUATE  SENTENCES,  11;  File  26251-12310. 

7.  Paymaster's  clerk— Charged  with.    C.  M.  O.  32, 1908. 

8.  Warrant  officers— Charged  with.    C.  M.  O.  48,  1899;  3,  1905;  102,  1905;  26,  1906;  93, 

1906;  48,  1907;  19,  1909;  27, 1909;  34,  1909;  29,  1913. 

9.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  0. 20, 1912;  32, 1912;  21, 1914; 

G.C.M.  Rec.  25648. 

FALSIFYING  ACCOUNTS. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  28,  1887. 

FAMILIES. 

1.  Medical  attention — While  it  may  be  true  that  the  family  of  an  officer  is  not  directly 
recognized  by  law  in  all  respects,  yet  the  law  does  give  such  recognition  in  various 
ways.  Thus  recognition  is  given,  either  expressly  or  impliedlv,  in  the  following: 
Act,  Feb.  9, 1889  (25  Stat.,  667);  act,  June  10, 1896  (29  Stat.,  361);  act,  May  13, 1908  (35 
Stat.,  128).  File  28019-17,  J.  A.  G.,  Jan.  26, 1912.  See  also  MEDICAL  ATTENDANCE,  1. 

FEES. 

1.  Counsel  In  court-martial  cases — Naval  officers  prohibited  by  law  from  accepting 

compensation.    See  COUNSEL,  17.   ' 

2.  Expert  witness.    See  EXPERT  WITNESSES,  3,4. 

3.  Lloyd's  board  of  survey— Naval  officer  as  a  member  of.    See  MERCHANT  VESSELS,  4. 

4.  Officers — Prohibited  to  receive  compensation  for  acting  as  counsel  in  court-martial 

proceedings.    See  COUNSEL,  17. 

5.  Retired  officer— As  counsel  for  accused— Compensation  prohibited.    See  COUNSEL,  17. 

6.  Witnesses.    See  ADDRESS,  3;  EXPERT  WITNESSES,  3;  NAVAL  MILITIA,  45,  46. 

FEINT  TO  STRIKE. 

1.  Assault.    See  ASSAULT,  12. 

FELONIOUS. 

1.  Assault.    See  ASSAULT,  13, 14. 

2.  Intent— Charges  and  specifications  must  allege  an  offense.    C.  M.  0. 15, 1895. 

FELONIOUSLY.    See  also  EMBEZZLEMENT,  14. 

1.  Assault     See  ASSAULT,  14. 

2.  Definition— The  word  "feloniously"  has  no  special  inherent  meaning;  it  is  a  mere 

technical  word  used  to  designate  offenses  which  were  declared  a  felony  at  common 
law  or  offenses  of  considerable  gravity  which  are  declared  felonies  by  statute.  It  is 
descriptive  of  the  offense  and  if  the  facts  proved  establish  a  felony,  then  the  crime 
was  committed  feloniously.  File  26251-3252,  J.  A.  G.,  April  28,  1910,  p.  2.  See  also 
G.  C.  M.  Rec.  28796  (argument  of  counsel):  C.  M.  O.  42,  1909,  9-10;  30,  1910,  7;  23, 
1911,  2-12;  MANSLAUGHTER,  13  (p.  353). 

FIANCfiE.    See  FLAGS,  2. 

FIFER,  U.  S.  M.  C. 

1.  General  court-martial— Tried  by.  C.  M.  O.  4,  1885;  14,  1885;  36,  1885;  42,  1885;  10, 
1895;  156,  1896. 

FIGHTING  WHILE  ON  DUTY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  65, 1892. 


FILIPINOS.  237 

FILIPINOS. 

1.  Clemency— Recommended  because  accused  was  a  Filipino.   See  CLEMENCY,  21. 

2.  Naturalization — Of  an  enlisted  man  who  is  a  Filipino  under  act  of  June  30,  1914  (38 

Stat.,39o)— Twenty  months'  service  in  the  Navy  by  a  native  Filipino  is  not  asufflcient 
declaration  of  intention  to  become  a  citizen  of  the  United  States.  In  order  for  a 
Filipino  to  become  a  citizen  of  the  United  States  on  account  of  service  in  the  Navy 
and  without  previous  declaration  of  intention  it  is  necessary  that  he  shall  have  served 
at  least  one  enlistment  of  not  less  than  four  years  in  the  Navy  or  Marine  Corps  and 
have  received  an  honorable  discharge  therefrom,  or  an  ordinary  discharge  with  recom- 
mendation for  reenlistment.  (See  C.  M.  O.  6, 1915,  p.  7;  see  also,  In  re  Monico  Lopez, 
Supreme  Court,  District  of  Columbia,  Naturalization  No.-1340,  File  26252-103;  27  Op. 
Atty.  Gen.  12.)  File  26282-240,  J.  A.  G.,  Nov.  8, 1915;  C.  M.  0. 42, 1915, 10.  See  also  File 
26252-69,  J.  A.  G..  Dec.  4, 1912;  1547-31,  J.  A.  G.,  Mar. 25, 1908.  (In  re  Alverto,  128  Fed. 
Rep.,  688,  overruled  as  far  as  the  naval  service  is  concerned.) 

3.  Same — The  following  unreported  opinion  was  rendered  on  December  13,  1915,  in  the 

case  of  In  re  Monico  Lopez  (Naturalization  No.  1340),  holding  that  a  native  Filipino 
is  eligible  to  naturalization.  (See  File  26252-10 

This  is  a  petition  for  naturalization  filed  by  Lopez  and  resisted  by  the  United  States. 
The  undisputed  facts  are  that  Lopez  was  born  May  4,  1878,  on  the  Island  of  Luzon, 
one  of  the  Philippine  Islands.  His  father  and  mother  were  mestizos,  born  in  the 
Philippines.  Lopez  came  to  this  country  in  1904  with  former  President  Taft.  He 
is  now  a  messenger  in  the  War  Department,  having  been  such  since  March,  1913. 
He  filed  his  declaration  of  intention  September  4,  1909,  and  this  petition  was  filed 
more  than  two  years  thereafter.  His  admission  to  citizenship,  as  above  stated,  was 
resisted  by  the  United  States,  and  a  brief  has  been  filed  in  support  of  such  resistance 
by  its  attorney.  The  petitioner  was  not  represented  by  counsel  at  the  hearing,  but 
a  member  of  the  local  bar  has  filed  a  brief  in  behalf  of  petitioner  as  amicus  curix.  No 
question  has  been  raised  as  to  the  petitioner's  qualifications  for  citizenship  other  than 
as  hereinafter  stated. 

The  application  is  based  upon  section  30  of  the  Naturalization  Act  of  June  29, 1906 
[34  Stat..  596,  606-607],  which  reads  as  follows: 

"All  the  applicable  provisions  of  the  naturalization  laws  of  the  United  States  shall 
apply  to  and  be  held  to  authorize  the  admission  to  citizenship  of  all  persons  not  citizens 
who  owe  permanent  allegiance  to  the  United  States,  and  who  may  become  residents 
of  any  State  or  organized  Territory  of  the  United  States,  with  the  following  modifica- 
tions: The  applicant  shall  not  be  required  to  renounce  allegiance  to  any  foreign  sov- 
ereignty; he  shall  make  his  declaration  of  intention  to  become  a  citizen  of  the  United 
States  at  least  two  years  prior  to  his  admission;  Mid  residence  within  the  jurisdiction 
of  the  United  States,  owing  such  permanent  allegiance,  shall  be  regarded  as  residence 
within  the  United  States  within  the  meaning  of  the  five  years'  residence  clause  of  the 
existing  law." 

The  contention  of  the  United  States  is  that  petitioner  is  debarred  by  section  2169 
Revised  Statutes,  United  States,  which  provides: 

"The "provisions  of  this  Title  shall  apply  to  aliens  being  free  white  persons,  and  to 
aliens  of  African  nativity  and  to  persons  of  African  descent." 

It  is  argued  that  section  30  of  the  act  of  June  29, 1906,  and  section  2169  Revised  Stat- 
utes, United  States,  must  be  read  together,  and  that  the  former  section  applies  only 
to  persons  who  are  designated  in  the  latter,  viz,  "aliens  being  free  white  persons  and 
to  aliens  of  African  nativity,"  etc. 

The  court  is  unable  to  agree  with  the  contention  of  the  Government.  The  language 
of  section  30,  above  quoted,  is  that  "all  the  applicable  provisions  of  the  naturalization 
laws  *  *  *  shall  apply  to  and  be  held  to  authorize  the  admission  to  citizenship  of 
all  persons  not  citizens  who  owe  permanent  allegiance  to  the  United  States  and  who 
may  become  residents  of  any  State  or  organized  Territory  of  the  United  States." 
But  section  2169  is  not  applicable  to  petitioner.  He  is  not  an  alien  nor  is  he  of  African 
nativity  or  descent. 

By  the  treaty  with  Spain  the  Philippines  were  ceded  to  the  United  States  on  April 
11, 1899.  By  the  act  of  July  1, 1902  (32  Stat.,  691),  inhabitants  of  the  Philippines  who 
were  Spanish  subjects  on  April  11, 1899.  other  than  those  who  had  elected  to  preserve 
their  allegiance  to  Spain,  were  declared  "to  be  citizens  of  the  Philippine  Islands  and 
as  such  entitled  to  the  protection  of  the  United  States."  Four  years  later  Congress, 
with  the  act  of  1902  before  it,  making  Filipinos  local  citizens  and  with  the  knowledge 
that  the  islands  were  being  governed  by  the  United  States,  and  that  thereby  its 


238  FILIPINOS. 

citizens  owed  allegiance  to  the  United  States,  enacted  section  30,  with  the  evident 
intention  of  providing  means  whereby  such  citizens  could  become  citizens  of  the 
United  States. 

In  the  case  of  Fourteen  Diamond  Rings  v .  U.  S.  (183  U.  S.;  176)  the  Supreme  Court, 
speaking  of  the  Philippines,  used  this  language:  "  The  Philippines  thereby  ceased,  in 
the  language  of  the  treaty,  'to  be  Spanish.'  Ceasing  to  be  Spanish,  they  ceased  to  be 
foreign  country.  They  came  under  the  complete  and  absolute  sovereignty  and  domin- 
ion of  the  United  States,  and  so  became  territory  of  the  United  States  over  which  civil 
government  could  be  established. 

"  The  result  was  the  same,  although  there  was  no  stipulation  that  the  native  inhabit- 
ants should  be  incorporated  into  the  body  politic,  and  none  securing  to  them  the 
right  to  choose  their  nationality.  Their  allegiance  became  due  to  the  United  States  and 
they  became  entitled  to  its  protection." 

This  decision  was  handed  down  December  2, 1901.  Five  years  later  Congress  pro- 
vided a  means  whereby  those  persons  described  by  the  quoted  language  of  the  Su- 
preme Court,  owing  allegiance  to  the  United  States,  might  become  citizens  thereof. 
To  contend  that  this  provision  must  be  read  in  pari  materia  with  a  section  relating 
to  aliens  and  persons  of  African  descent  is  to  ignore  the  evident  intent  of  Congress  in 
extending  citizenship  to  a  definite  and  ascertained  class  of  persons  who  were  neither 
aliens  nor  of  African  descent. 

I  am  aware  that  in  other  jurisdictions  an  opposite  conclusion  has  been  reached,  but 
to  my  mind  the  above  considerations  are  compelling,  and  I  will  admit  the  petitioner 
to  citizenship.  C.  M.  O.  49, 1915,  23-25.  See  also  Filipinos,  2. 

FINANCIAL,  IRREGULARITIES. 

1.  Chief  boatswain,  retired— Tried  by  general  court-martial  for.    C.  M.  0. 15,  1915. 

2.  Debt.    See  DEBTS. 

FINDINGS. 

1.  Absence  from  station  and  duty  without  leave— Finding  of,  on  charge  of  "Deser- 

tion" is  acquittal  of  latter.  See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 
LEAVE.  18;  DESERTION,  6. 

2.  Same — Where  accused  charged  with  "Desertion"  is  found  guilty  in  a  less  degree  than 

charged  the  proper  finding  in  such  a  case  is:  And  that  the  accused,  *  *  *  ,  is  of 
the  charge,  "Guilty  in  a  less  degree  than  charged,  guilty  of  absence  from  station  and 
duty  without  leave  [or  absence  from  station  and  duty  after  leave  had  expired]." 
(Forms  of  Procedure,  1910.  p.  40.)  C.  M.  O.  53,  1914,  5-6. 

3.  Accused— In  trials  ordered  by  the  department,  the  findings,  sentence,  and  action  of 

convening  authority  will  be  furnished  by  the  department  upon  application  of  the 
accused.  See  ACCUSED,  36;  RECORD  OF  PROCEEDINGS,  32. 

4.  Same — Findings  not  to  be  furnished  accused  until  the  sentence  is  published.    See 

ACCUSBD,  36;  RECORD  OF  PROCEEDINGS,  32. 

Name  of  accused  should  be  the  same  in  the  findings,  action  of  convening  authority 
and  senior  officer  present,  and  charges  and  specifications  and  arraignment.  File 
26262-2520,  Sec.  Navy,  Mar.  1,  1916. 

5.  Acquittals.    See  ACQUITTAL. 

6.  Adhered  to— In  revision.    C.  M.  O.  7,  1911, 14-16;  36,  1915,  1;  36, 1916. 

7.  Alterations — Findings  shall  be  free  from  all  alterations — The  judge  advocate  in  recording 

.  the  findings  made  an  error  in  writing  a  word  and  attempted  to  correct  the  mistake 
by  writing  the  word  "by"  over  what  he  had  first  written.  While  this  is  neither  an 
"erasure"  nor  an  "interlineation"  it  is  as  objectionable  an  alteration  as  either.  If 
the  judge  advocate  makes  a  mistake  in  recording  the  finding  he  should  rewrite  the 
whole  page.  (See  Forms  of  Procedure,  1910,  p.  40;  C.  M.  O.  55, 1910,  p.  8.)  C.  M.  O.  6, 
1916,  3. 

8.  Beyond  reason  and  understanding.    C.  M.  O.  49,  1910,  13. 

9.  Brackets— In  some  cases  the  specifications  have  been  printed  in  full  in  the  court-martial 

order  and  certain  words  found  not  proved  placed  in  brackets.  The  findings  were  then 
recorded:  The  first  specification;  "Proved  in  part;  proved  except  the  words  [in 
brackets],  which  words  are  not  proved."  C.  M.  O.  10,  1889,  7;  28,  1891,  2;  56,  1898, 
65-66;  70,  1898,  104-105. 

10.  Charges— The  findings  must  specify  the  numbers  of  charges.    C.  M.  O.  55, 1910.  9. 

11.  Same — No  finding  on  charge — Department  disapproved   because  of  this  and  other 

irregularities.  C.  M.  0. 135,  1897,  2.  See  also  C.  M.  O.  33,  1905,  1;  File  426-98;  FIND- 
INGS, 38,  64. 


FINDINGS.  239 

12.  Same — When  the  accused  has  pleaded  guilty,  the  proper  finding  is,  for  the  specification, 

"proved  by  plea,"  and  for  the  charge  "guilty."  (Navy  Regulations,  1913,  R-802  (5); 
Forms  of  Procedure,  1910,  p.  40;  C.  M.  0. 12, 1895,  2;  109, 1897,  2;  55, 1910,  p.  9;  14,  1910, 
p.  6;  15,  1910,  p.  6;  28,  1910,  p.  4;  26,  1912,  p.  4;  1,  1913,  p.  5;  36,  1914,  7.)  C.  M.  O.  11, 
1916,  3.  But  see  C.  M.  O.  29,  1916,  1,  in  which  the  phraseology  used  is  misleading 
and  erroneous. 

13.  Clemency — Findings  and  recommendation  should  not  be  inconsistent.    See  CLEM- 

ENCY, 22;  FINDINGS,  53. 

14.  Collision— Evidence  to  prove.    See  COLLISION,  8,  9. 

15.  Court— After  arriving  at  a  finding  should  call  the  judge  advocate  before  it  to  record 

the  findings  before  court  closes  to  deliberate  on  sentence,  because  the  judge  advocate 
will  thereby  be  enabled  to  advise  the  court  upon  any  possible  irregularity  in  findings 
before  court  proceeds  to  sentence  accused.  C.  M.  O.  25, 1914,  6;  6, 1916, 3.  See  also 
C.  M.  O.  17,  1910,  10;  23,  1910,  7;  26,  1910,  8;  6,  1916,  3. 

16.  Court  of  Inquiry  findings — As  evidence.    See  COURTS  OF  INQUIRY,  18. 

17.  "Culpable  Inefficiency  In  the  performance  of  duty  "—Where  an  accused  is  charged 

with  ' '  Culpable  inefficiency  in  the  performance  of  duty  "  and  court  finds  him  guilty 
in  a  less  degree -than  charged,  guilty  of  "  Inefficiency  in  the  performance  of  duty," 
such  finding  is  legal.  C.  M.  O.  4,  1914.  See  also  C.  M.  O.  21,  1885;  40,  1891;  56,  1898; 
70,  1898;  129, 1898,  6;  89,  1901;  19,  1905,  1;  5,  1906,  1;  19,  1916,  2. 

18.  Dates — Substitutions  of  dates  in  specifications— It  is  not  necessary  that  the  precise 

date  given  in  a  specification  be  proved,  but  the  court  may  find  that  the  offense  was 
committed  on  or  about  said  date,  or  may  substitute  an  entirely  different  date,  pro- 
vided it  be  within  the  statutory  period  of  limitations.  (12  Cyc.615.)  "Save  in  those 
cases  in  which  time  is  of  the  essence  of  the  offense,  the  prosecution  is  not  confined  in  its 
evidence  to  the  precise  date  laid  in  the  indictment,  but  may  prove  the  offense  to  have 
been  committed  upon  any  date  prior  to  the  finding  of  the  indictment  and  within 
the  period  of  limitations."  (22  Cyc.  451.) 

The  department's  precedents  disclose.numerous  instances  where  findings  have  been 
approved  in  which  courts  have  substituted  definite  dates,  or  "on  or  about"  certain 
dates,  for  the  dates  alleged  in  the  specifications.  C.  M.  O.  19,  1915,  5-6.  See  also 


19.  Desertion— Where  an  accused  charged  with  "Desertion"  is  found  guilty  in  a  less 

degree  than  charged  the  proper  finding  is:  And  that  the  accused,  *  *  *  ,  is  of 
the  charge,  "Guilty  in  a  less  degree  than  charged,  guilty  of  absence  from  station  and 
duty  without  leave  [or  absence  from  station  and  duty  after  leave  had  expired]." 
C.  M.  O.  53,  1914,  5. 

20.  Same — Guilty  of  desertion — Removal  of  mark  of  desertion  from  record.    See  MARK 

OF  DESERTION. 

21.  Disapproval.    See  ACQUITTAL,  7-10;  FINDINGS,  38. 

22.  Dissolution — A  finding  arrived  at  prior  to  dissolution  of  court  remains  unaffected,  and 

established  culpability.    C.  M.  O.  4, 1914,  5. 

23.  Erasures— Should  not  be  made  in  the  findings.    C.  M.  O.  55,  1910,  8;  28,  1915. 

24.  Errors  In— Quotation  marks  should  be  used  correctly.    C.  M.  O.  36,  1914,  6. 

25.  Evidence — Not  in  accord  with — Record  returned  for  revision.    C.  M.  O.  36, 1915,  1. 

26.  Examining  boards.    See  NAVAL  EXAMINING  BOARDS,  13. 

27.  Exceptions  and  substitutions — Where  a  court-martial  determines  that  the  accused 

is  guilty  of  a  specification  but  not  precisely  as  laid — that  is  to  say,  is  guilty  of  a  part 
but  not  of  the  remainder,  or  is  guilty  of  the  substance  of  the  entire  specification  but 
not  9f  certain  details — it  may,  and  it  is  its  duty,  in  convicting  him  thereon,  to  except 
specifically  from  the  finding  of  guilty  such  portions  as  are  not  proved,  and  thus  declare 
the  exact  measure  of  the  criminality  deemed  to  be  established.  In  making  exceptions 
as  to  items  in  the  specifications,  not  precisely  proved,  suchas  amounts,  numbers,  quan- 
/  titles,  names,  dates,  places,  words  spoken,  or  allegations,  the  court  is  authorized  to 
go  further,  and  substitute  the  true  facts  or  details,  or  proper  allegations.  A  substitu- 
tion, however,  like  a  mere  exception,  must  not  so  modify  the  specifications  as  to 
render  it  inappropriate  to  the  charge  as  found.  C.  M.  O.  27, 1898,  2. 

In  view  of  the  peculiar  authority  of  a  court-martial  to  make  corrections  and  sub- 
stitutions in  its  finding,  and  to  convict  of  a  breach  of  discipline  where  the  proof  fails 
to  establish  the  specific  act  alleged,  the  charging  of  the  same  offense  under  different 
forms  is  much  less  frequently  called  for  in  the  military  than  in  the  civil  practice' 
C.  M.  0. 19, 1911,  3.  See  also  CHARGES  AND  SPECIFICATIONS,  61-68. 

50756°— 17 16 


240  FINDINGS. 

28.  Same — It  is  settled  law  that  a  naval  court-martial  is  empowered  in  its  findings  to 

except  certain  words  in  a  specification  as  not  proved,  to  substitute  other  words  which 
are  proved,  and  to  find  the  accused  guilty  of  a  lesser  offense  which  is  embraced  in  that 
charged  and  which  is  established  by  the  evidence.  (Dynes  v.  Hoover,  20  How.  05; 
Swaim's  case,  18  Op.  Atty.  Gen.  113,  28  Ct.  Cls.  173,  affirmed  165  U.  S.  553.)  Ac- 
cordingly an  appeal  from  the  court's  action  in  this  respect  must  be  denied  by  the 
Secretary  of  the  Navy,  the  finding  of  the  court  being  legally  supported  by  the  evidence, 
and  it  having  been  decided  in  habeas  corpus  proceedings  that  the  court-martial  had 
jurisdiction  to  try.  convict,  and  sentence  the  accused  for  the  offenses  charged  and 
found  proved.  File  26251-9281:16,  Sec.  Navy,  May  12,  1915;  C.  M.  O.  20,  1915,  6. 

29.  Same— The  words  "intoxicants  or  drugs"  for  the  words  "intoxicating  liquor."    C. 

M.  O.  62,  1904.    See  also  C.  M.  O.  155,  1897,  2. 
The  word  "intoxicated"  for  the  word  "drunk."    C.  M.  O.  53,  1905. 

30.  Same— Place— The  following  finding  has  been  approved:  The  first  specification  of 

the  first  charge  "proved,"  except  the  words  "Pensacola,  Florida,"  which  words  are 
not  proved,  and  for  which  the  court  substitutes  the  words,  "  Warrington,  Florida," 
which  words  are  proved.  C.  M.  0. 117,  1902,  6. 

31.  Same — "An  unknown  sum" — The  following  finding  has  been  approved:  The  first 

specification  of  the  third  charge  "proved,"  except  the  words  "four  hundred  and 
eighty-three  dollars  and  sixty-five  cents,"  which  words  are  not  proved,  and  the  court 
substitutes  the  words  "an  unknown  sum,"  which  words  are  proved.  C.  M.  0. 117, 
1902,  6,  7.  See  also  C.  M.  O.  173,  1902. 

32.  Same— Time— "May"  for  "June"— The  second  specification  of  the  second  charge 

"proved,"  except  the  word  "June,"  which  word  is  not  proved,  and  for  which  excepted 
word  the  court  substitutes  the  word  "May,"  which  word  is  proved;  and  except  the 
words  "giving  therefor  to  the  said  *  *  *  a  worthless  check,"  which  words  are 
not  proved.  C.  M.  O.  230,  1902,  3. 

33.  Same— "About"  such  a  time,  for  a  definite  date— The  eighth  specification  of  the  second 

charge  "proved,"  except  the  words  "on  the  fifteenth  day  of  August,"  which  words 
are  not  proved,  and  for  which  excepted  words  the  court  substitutes  the  words  "about 
the  fifteenth  day  of  August,"  which  words  are  proved. 

34.  Same— The  court,  in  its  finding,  may  not  substitute  an  entirely  new  and  distinct  charge 

for  the  one  under  which  the  accused  was  tried,  and  where  this  was  done  the  depart- 
ment held  the  findings  invalid.  C.  M.  O.  37,  1909,  3,  7. 

35.  Same— Time— The  court  found  the  fifth  specification  of  the  fourth  charge  "not  proved." 

This  specification  alleged  that  the  accused  on  a  certain  date  did  order  and  cause  a 
noncommissioned  officer  in  uniform  and  on  duty  to  purchase  and  bring  to  him  intoxi- 
cating liquor  for  the  unlawful  purpose  of  drinking  same  while  on  duty.  The  non- 
commissioned officer  in  question  could  not  definitely  fix  the  date  of  this  offense,  but 
did  testify  positively  that  such  an  occurrence  took  place  on  three  different  occasions, 
two  of  which  were  covered  by  other  specifications;  but  he  was  not  sure  of  the  precise 
date  of  the  third  transaction,  which  was  the  one  covered  by  this  specification.  It  is 
not  necessary  that  the  precise  date  given  in  a  specification  be  proved,  but  the  court 
may  find  that  the  offense  was  committed  on  or  about  said  date,  or  may  substitute 
an  entirely  different  date,  provided  it  be  within  the  statutory  period  of  limitations. 
(12  Cyc.  615.)  "Save  in  those  cases  in  which  time  is  of  the  essence  oi  the  offense,  the 
prosecution  is  not  confined  in  its  evidence  to  the  precise  date  laid  in  the  indictment, 
but  may  prove  the  offense  to  have  been  committed  upon  any  date  prior  to  the  finding 
of  the  indictment  and  within  the  period  of  limitations."  (22  Cyc.  451.) 

The  department's  precedents  disclose  numerous  instances  where  findings  have  been 
approved  in  which  courts  have  substituted  definite  dates,  or  "on  or  about"  certain 
dates,  for  the  dates  alleged  in  the  specifications.  (C.  M.  0. 129,  1898,  p.  5;  230,  1902, 
p.  3;  3,  1905,  p.  2.)  [See  G.  C.  M.  Rec.  32851,  p.  2.] 

In  the  present  case  the  evidence  mentioned  was  sufficient  to  have  supported  a 
finding  of  "proved"  upon  the  specification  in  question,  either  as  it  read  or  with  the 
insertion  of  "on  or  about"  before  the  date  mentioned.  C.  M.  O.  19, 1915. 1,  5-6. 

36.  Same — Should  not  eliminate  the  essence  of  the  offense,  etc.    C.  M.  O.  146,  1900;  41, 

1903,  2;  12,  1904,  3;  29,  1909,  2;  4,  1913,  54;  38,  1916;  File  26251-12739. 

37.  Same— Words.    C.  M.  O.  38,  1905,  1-2. 

38.  Failure  to  make — Department  disapproved.    C.  M.  O.  33,  1905,  1. 

Where  court  records  a  finding  on  the  specification  but  fails  to  record  a  finding 
on  the  charge,  it  is  directed  to  reconvene  for  the  purpose  of  recording  a  finding  upon 
both  the  charge  and  specification  in  the  usual  and  proper  manner.  File  426-98.  See 
also  FINDINGS,  11. 


FINDINGS.  241 

39.  G.  0. 11O — A  finding  of  "  Guilty  in  a  less  degree  than  charged,  guilty  of  unauthorized 

absence"  is  incorrect.    C.  M.  O.  53,  1914,  6.    See  also  FINDINGS,  2, 19. 

40.  Gravamen — In  finding  guilty  upon  a  specification,  to  except  from  such  finding  the 

word  or  words  which  express  the  gravamen  of  the  act  as  charged  and  found  is  contra- 
dictory and  irregular.  C.  M.  O.  4, 1913.  54.  See  also  C.  M.  0. 146, 1900,  2;  41, 1903,  2; 
12,  1904,  3;  29,  1909,  2;  FINDINGS,  41;  File  26251-12739,  Sec.  Navy,  Jan.,  1917. 

41.  Same — Court  in  its  finding  should  not  eliminate  essential  gravamen  from  specifica- 

tion and  then  find  guilty  of  charge.    See  COURT,  86. 

42.  "Guilty"— When  the  accused  has  pleaded  "guilty"  the  proper  finding  is,  for  the  speci- 

fication, "proved  by  plea"  and  for  the  charge,  "guilty."    See  FINDINGS,  12. 

43.  "Guilty  but  without  criminality."    See  FINDINGS,  69. 

44.  "Guilty  but  without  culpability"— A  finding  of  "guilty  but  without  culpability" 

is  inconsistent  with  finding  of  guilty  of  a  specification  which  alleges  that  the  act  was 
committed  "wilfully  and  deliberately."  C.  M.  O.  7,  1911,  16. 

45.  Guilty  except  to  certain  words — A  finding  on  a  plea  of  "guilty  except  to    *    *    *    " 

should  be  recorded  as  "proved  in  part  by  plea."    C.  M.  0. 14, 1910,  6;  1,  1911,  5. 

46.  "Guilty  in  a  less  degree  than  charged."    See  GUILTY  IN  A  LESS  DEGREE  THAN 

CHARGED. 

47.  "Guilty  ol  specification"— Used  in  Court-Martial  Order  7,  1911,  4,  erroneously.    See 

also  G.  C.  M.  Rec.  23282. 

48.  Handwriting— The  entire  findings  must  be  recorded  in  the  handwriting  of  the  judge 

advocate.  This  includes  everything  which  properly  forms  a  part  of  the  finding, 
commencing  with  the  words,  "The  specification  of  the  first  charge." 

Forms  of  Procedure,  1910,  page  40,  states,  "The  judge  advocate  was  recalled  and 
directed  to  record  the  following  findings."  Everything  which  follows  this  statement 
is  a  part  of  the  finding  and  therefore  must  be  recorded  in  the  handwriting  of  the  judge 
advocate.  C.  M.  O.  29,  1914,  5;  42.  1914,  4-5;  23,  1916,  2. 

49.  Same— If  court  adheres  to  former  findings  in  revision  such  statement  should  be  in 

handwriting  of  judge  advocate.    C.  M.  O.  29, 1914,  5. 

50.  Same^— The  judge  advocate  shall  enter  the  findings  of  the  court  on  the  record  of  pro- 

ceedings in  his  own  handwriting.  He  shall  not  typewrite  the  findings.  C.  M.  O. 
155, 1897,  2;  24, 1909,  3;  37,  1909,  4;  42,  1909,  6;  29, 1914,  5;  42, 1914,  4;  17, 1915,  3. 

51.  Ignorance  of  law — An  incorrect  finding  was  caused  by  court's  ignorance  of  law.    C. 

M.  O.  4,  1913,  13.     See  also  File  26251-12159. 

52.  Inconsistent — A  finding  of  "guilty"  of  fraudulent  enlistment,  but  a  light  sentence 

imposed  because  the  accused  was  "mentally  unbalanced"  whenfraudulently  enlisting 
was  held  by  the  department  to  be  utterly  inconsistent,  and  therefore  disapproved 
the  case.  C.  M.  O.  49,  1910,  12-13. 

53.  Inconsistent  with  recommendation  to  clemency— Where  the  court  found  the 

accused  guilty  of  absence  without  leave  and  subsequently  recommended  him  to  the 
clemency  of  the  convening  authority  because  he  was  "half-witted  and  irresponsible" 
the  department  held  that  such  recommendation  was  inconsistent  with  the  finding 
of  the  court,  as  a  man  half-witted  and  irresponsible  can  hardly  be  held  accountable 
for  his  acts.  C.  M.  O.  49,  1910, 17.  Seealso  C.  M.  O.  21, 1910,  4-6;  30, 1910,  5;  5, 1911,  4. 

54.  Interlineations— Findings  must  be  free  from  interlineations  or  erasures.    C.  M.  O. 

55, 1910,  8;  28, 1915.    See  also  FINDINGS,  7. 

55.  Irregular — Specifications  proved  but  "not  guilty,  because  of  mental  irresponsibility." 

C.  M.  O.  24,  1914,  3. 

56.  Same — Specifications  proved  but  not  guilty  of  the  charge.    Disapproved.    C.  M.  O. 

59, 1897,  3.    Seealso  C.  M.  O.  87,  1897,  2;  12,  1895,  2;  23,  1910,  7;  5,  1911,  7. 

57.  Same^-Court  found  the  accused  "Not  guilty"  but  sentenced  him  "to  be  dishonorably 

dismissed."  The  department  stated:  '  'A  sentence  so  evidently  illegal,  in  view  of  the 
findings,  is  of  course  set  aside."  G.  O.  57,  June  9, 1865. 

58.  Italics — The  specifications  were  printed  in  full,  the  words  which  were  found  "not 

proved"  being  italicized.  The  finding  then  read:  The  first  specification,  "proved, 
except  the  words  (italicized)  which  words  are  not  proved."  C.  M.  6. 8, 1886,  32.  See 
ofeoC.M.  0.4,1913,49. 

59.  Joinder— Trial  in.    See  JOINDER,  TRIAL  IN. 

60.  Judge  advocate— Finding  in  handwriting  of.    See  FINDINGS,  48-50. 

61.  Same— Court  should  call  judge  advocate  before  it  to  record  findings  before  deliberating 

upon  sentence.    See  FINDINGS,  15. 

62.  "Justifiable  cause" — "and  without  justifiable  cause"  not  proved,  but  guilty  of 

charge.    C.  M.  O.  59, 1904, 1-2.    See  also  ASSAULT,  27. 


242  FINDINGS. 

63.  "Not  guilty"— In  case  the  finding  is  "not  guilty  "  upon  any  charge,  the  explicit  state- 

ment should  immediately  follow  that  the  court  acquits  the  accused  of  such  charge. 
C.  M.  O.  49, 1888,  3;  40,  1891,  2;  60,  1898,  2;  41,  1900;  92, 1903,  3;  49,  1910, 15;  17. 1910,  12; 
21, 1910, 16;  28, 1912, 3;  34,  1913,  6;  29, 1914,  6.  See  also  C.  M.  O.  26, 1902,  where  the  ex- 
press statement  of  acquittal  was  erroneously  omitted.  See  also  FINDINGS,  67. 

64.  Omission— Of  findings  on  record— Department  returned  to  have  findings  recorded. 

C.  M.  O.  5,  1911,  5.    See  also  C.  M.  0. 33,  1905, 1;  File  26251-12159,  Sec.  Navy,  Oct.  30, 
1916,  p.  1;  FINDINGS,  11,  38. 
(15.  Same — Fatal  defect  not  to  make  a  finding  where  court  dissolved. 

66.  Same— Voting  must  be  continued  until  a  finding  has  been  reached.    It  is  therefore 

improper  to  find  that  "the  court  can  not  reach  a  finding  after  numerous  ballots  cast." 
G.  C.  M.  Rec.  23134.  See  also  C.  M.  0. 155,  1897,  2. 

67.  Same— In  case  the  finding  is  "not  guilty"  upon  any  charge,  the  explicit  statement 

should  immediately  follow  that  the  court  acquits  the  accused  of  such  charge. 

In  a  case  where  this  was  not  done  the  department  stated,  "Inasmuch,  however,  as 
the  intention  of  the  court  to  acquit  may  be  regarded  as  a  necessary  inference  from 
its  findings  upon  the  charge  in  question,"  "the  omission  from  the  record  of  the  cus- 
tomary statement  expressing  such  intention  is  not  material."  C.  M.  O.  25, 1902. 

68.  Same— Finding  of  "not  guilty"  fully  acquits  in  law.    C.  M.  O.  5,  1912, 13. 

69  "Proved,  but  without  criminality"— A  finding  of  "proved,  but  without  crimi- 
nality "  is  not  to  be  encouraged  in  any  case.  It  is  virtually  a  form  of  acquittal,  being 
a  determination  that  the  accused  is  not  guilty  in  law.  It  will  therefore  be  more  legally 
accurate,  as  well  as  more  military  and  more  just  to  the  accused?  to  express  and  record 
the  findings  simply  as  "not  guilty."  This  finding  is  particularly  inappropriate 
upon  a  charge  of  desertion  in  which  intent  forms  an  essential  ingredient  of  the  offense 
and  must  be  proved.  C.  M.  O.  10, 1911,  5.  See  also  C.  M.  0. 10,  1913,  3. 

70.  "Proved,  but  without  culpability."    C.  M.  O.  30,  1909,  2;  7,  1911,  16.    See  also 

FINDINGS,  44. 

71.  Reconsideration  of.    See  File  26258-302,  May  29, 1912.    See  also  16  Op.  Atty.  Gen.  104. 

72.  Record — Findings  on  the  charges  should  be  entered  regularly.    C.  M.  O.  55,  1910,  8-9. 

73.  Same — When  the  accused  has  been  tried  under  one  charge  with  one  specification  there- 

under, it  is  improper  to  record  that  the  court  finds  the  accused  of  theirs*  charge  guilty 
or  not  guilty.  C.  M.  O.  21,  1910,  11. 

74.  Retiring  board — Finding  can  not  be  changed  by  act  of  Congress.    15  Op.  J.  A.  G.  461. 

75.  Revision— A  finding  arrived  at  after  dissolution  of  court  has  no  legal  effect,  even  though 

attempt  is  made  to  reconvene  court.    C.  M.  O.  4,  1914. 

76.  Same— Original  rinding  should  be  revoked  before  new  one  is  adjudged.    C.  M.  O.  19, 

1912,  6. 

77.  Same— Accused  pleaded  guilty  to  first  charge  (absense  without  leave)  and  not  guilty 

to  second  charge  (Conduct  to  the  prejudice  of  good  order  and  discipline). 

Court  found  specification  of  first  charge  proved  and  not  guilty  of  the  charges;  specifi- 
cation of  the  second  charge  not  proved  and  not  guilty  of  charge,  and  acquitted  accused 
of  both  charges. 

In  revision  the  court  revoked  its  former  finding  upon  the  specification  of  the  first 
charge  and  found  the  specification  "proved  except  that  the  necessary  criminal  animus 
nowhere  appears  in  the  evidence,"  and  the  accused  of  the  first  charge  not  guilty. 
Department  disapproved.  C.  M.  O.  6, 1908,  5-6. 

78.  Revoking.    See  FINDINGS,  76. 

79.  Setting  aside.    See  SETTING  ASIDE. 

80.  Single  charge— When  an  accused  has  been  tried  under  a  single  charge  it  is  improper 

to  record  that  the  court  finds  the  accused  of  the  first  charge  guilty  (or  not  guilty). 
C.  M.  O.  21, 1910,  11. 

81.  Specifications— Where  there  is  more  than  one  specification  there  should  be  a  finding 

on  each  separately.    C.  M.  O.  49,  1910,  14. 

82.  Same — Finding  on  specification  should  be  "not  proved"  rather  than  "not  guilty." 

C.  M.  O.  72, 1903. 

83.  Same — When  the  accused  has  pleaded  "guilty,"  the  proper  finding  for  the  specification 

is  "proved  by  plea."  (Navy  Regulations,  1913,  R-S02  (5);  Forms  of  Procedure,  1910, 
p.  40;  Index-Digest,  1914,  p.  20.)  C.  M.  O.  11. 1916,  3.  See  also  FINDINGS,  12. 

84.  Same — When  the  accused  has  pleaded  "guilty,"  the  proper  finding  for  the  specification 

is  "proved  by  plea."    (Navy  Regulations,  1913,  R-S02  (5);  Forms  of  Procedure,  1910, 
p.  40;  Index-Digest  1914,  p.  20.)    C.  M.  O.  11,  1916,  3.    See  also  FINDINGS,  12. 
£5.  Same— Irregularity  in  finding  of  "not  guilty"  instead  of  "not  proved"  not  sufficient 
to  Invalidate.    C.  M.  O.  72, 1903, 1. 


FINDINGS.  243 

86.  Summary  courts-martial— If  there  are  two  or  more  specifications,  there  should 

be  a  finding  on  each  separately,  referring  to  each  of  them  by  number,  and  the  general 
form  of  findings  shall  be  same  as  in  general  courts-martial.  C.  M.  O.  5,  1914,  4. 

Word  "findings"  not  used  in  actions  on  summary  courts-martial.  C.  M.  O. 
36,  1914,  5.  But  see  General  Order  No.  110,  July  27, 1914,  3  (p.  261). 

87.  Surplusage — The  words  "in  consequence  of  which  neglect  and  failure  the    *    *    * 

was  stranded"  in  a  specification  under  a  charge  of  "culpable  inefficiency  in  the  per- 
formance of  duty"  is  surplusage,  and  is  not  an  essential  part  of  the  specification 
which  will  support  the  charge  without  such  words.  'C.  M.  O.  24,  1916,  4. 

88.  Typewriting— Findings  should  not  be  typewritten.    C.  M.  O.  155,  1S97,  2;  17,  1915,  3. 

See  also  FINDINGS,  48-50,  60,  61. 

89.  Unintelligible — In  exceptions  and  substitutions  of  words  in  the  findings  the  court 

should  not  leave  the  findings  in  unintelligible  shape  or  so  that  they  do  not  allege  an 
offense.  C.  M.  O.  29, 1893;  30, 1893;  12, 1904,  3;  47, 1906,  2;  28, 1904. 

90.  "  Unjustifiable  "—Found  not  proved.    See  ASSAULT,  27;  FINDINGS,  62. 

91.  Unreasonable.    See  COURT,  88. 

92.  Violation  of  law— "I  believe  it  would  be  dangerous  for  the  department  to  sanction  a 

finding  by  a  court-martial  which  imports  that  a  violation  of  a  distinct  provision  of 
law  (incorporated  for  the  better  information  of  the  service  in  the  Navy  Regulations, 
article  1473),  constitutes  neither  scandalous  conduct  nor  any  other  offense  whatever." 
File  6465-03,  J.  A.  G.,  July  22, 1903;  p.  5. 

"The  department  can  not  sanction  a  decision  which  would  seem  to  indicate  a  de- 
ficiency in  the  moral  sense,  as  well  as  in  the  reasoning  powers,  of  those  who  pronounced 
it,  and  the  tendency  of  which  would  be  to  encourage  a  disregard  of  law."  G.  O.  22, 
Oct.  17, 1863. 

93.  Voting  on  finding.    See  COURT,  189-191;  CRITICISM  OF  COUBT-MARTIAL,  35,  36;  FIND- 

INGS, 15;  OATHS,  47. 

FINDINGS  OF  FACT  BY  COURT  OF  CLAIMS.    C.  M.  O.  10,  1915,  13. 

FINGER  PRINTS. 

1.  Evidence,  as.    See  G.  C.  M.  Rec.  28488,  pp.  6-16;  29305.    See  aha  C.  M.  O.  37,  1909,  5. 

2.  Same— Weight— People  v.  Jennings,  96  N.  E.  Rep.  1077  (111.) 

3.  Furnished  to  persons  outside  of  naval  service.    File  7657-396:1,  J.  A.  G.,  Sept.  20, 

1916. 

FIRES. 

1.  Reimbursement  for  property — Of  enlisted  men  destroyed  in  extinguishing  a  fire  on 
board  a  naval  vessel.    See  File  9464-03.    See  also  File  3674-57;  1  Comp.  Dec.,  441. 

FIRE  EXTINGUISHERS.    See  C.  M.  O.  37,  1915,  4. 

FIREARMS. 

1.  Care  In  handling— Commanding  officers  are  directed  to  bring  the  above  case  (man  who 

accidentally  shot  another)  to  the  attention  of  all  under  their  command,  particularly 
emphasizing  the  importance  as  thus  exemplified  of  all  persons  in  the  service  who  have 
occasion  to  handle  dangerous  weapons  exercising  the  utmost  caution  to  avoid  a  repe- 
tition of  such  a  deplorable  fatality;  and  that  under  no  circumstances  should  any  person 
carrying  a  firearm  point  it  at  another,  however  certain  he  may  feel  that  such  firearm 
is  not  loaded,  except  when  required  to  do  so  in  the  discharge  of  duty.  C.  M.  O.  33, 
1914, 12. 

2.  Sentries,  use  of,  by — Use  of  firearms  by  sentries  while  on  their  post  to  defend  Govern- 

ment property.    See  File  7657-125,  J.  A.  G. 

FIREROOMS.    See  C.  M.  O.  36,  1915;  37,  1915;  38,  1915. 

FIRST  SERGEANT. 

1.  General  court-martial— Tried  by.    C.  M.  O.  48, 1880. 

FIST  FIGHT.    See  C.  M.  O.  128,  1905,  6. 
FITNESS  REPORTS.    See  REPORTS  ON  FITNESS. 

FLAGS. 

1.  Dishonored— Flag  dishonored.    C.  M.  O.  14, 1879,  2. 

2.  Draping  coffin— The  act  of  June  30,  1914  (38  Stat.  406),  authorizing  the  Secretary  of 

the  Navy  to  issue  upon  request  to  the  relatives  of  the  deceased,  etc.,  the  flag  used  to 
drape  the  coffin  of  officers  or  enlisted  men,  does  not  include  the  fiancee  of  the  deceased. 
File  3768-514,  Sec.  Navy,  June  6,  1916. 


244  FORNICATION. 

"FLEET  CAPTAIN."    See  CHIEF  OF  STAFF,  1. 

FLEET  COURT-MARTIAL  ORDERS.    See  COURT-MARTIAL  ORDERS,  12, 13. 

FLEET  NAVAL  RESERVE. 

1.  Obligations  assumed  on  enrollment.    File  28550-21,  J.  A.  G.,  Nov.  7,  1916. 

2.  Retainer  pay.    File  28550-20,  Sec.  Navy,  Nov.  1, 1916.    Seealso  File  28550-20:1,  J.  A.  G., 

Nov.  10,  1916. 

FLOATING  DRY  DOCKS.     See  DRY  DOCKS,  2-4. 

FLOGGING. 

1.  Abolished— Flogging  was  abolished  by  act  of  September  28,  1860  (9  Stat.  515).    See 
also  G.  O.  of  June  5,  1512. 

2.  Sentences  involving  flogging.    See  DESERTION,  1 19;  EXCESSIVE  SENTENCES,  3. 

FLOTILLA  OF  FLEET. 

1.  General  courts-martial — Convening  of.    See  CONVENING  AUTHORITY,  27. 

FOGGY  WEATHER. 

1.  Navigation  in.    C.  M.  O.  2, 1915;  3, 1915.    See  also  NAVIGATION,  39. 

FOOT  CRUSHED.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  51. 

FORCED  DRAFT. 

1.  Boilers  exploded— Insufficient  feed  water.    C.  M.  O.  30, 1915;  37,  1915;  38,  1915. 

FORCIBLY. 

1.  Defined  and  discussed.    G.  C.  M.  Rec.  21315. 

FOREIGN  COUNTRIES. 

1.  Bad-conduct  discharge.    See  BAD-CONDUCT  DISCHARGE,  4. 

2.  Collisions.    See  COLLISION,  2,  4,  10. 

3.  Expatriation— Evidence  of.    See  EXPATRIATION;  CITIZENSHIP,  17, 18. 

4.  General  courts-martial— Convening  of,  on  foreign  territory.    C.  M.  O.  42,  1915,  10. 

See  also  JURISDICTION,  53. 

5.  Officer— Official  residence  in.    See  CITIZENSHIP,  17, 18;  RESIDENCE,  2. 

FOREIGN  GOVERNMENTS. 

1.  Decorations— Acceptance  of,  by  officers  and  enlisted  men.    See  DECORATIONS. 

FOREIGN  LAWS. 

1.  Proof  of.    See  ATTORNEY  GENERAL,  11. 

FOREIGN  TERRITORY. 

1.  General  courts-martial — Convening  of,  on  foreign  territory.    C.  M.  O.  42,  1915,  10. 
See  also  JURISDICTION,  53. 

FOREIGNERS  ON  WARSHIPS.    See  ALIENS,  5. 
FORFEITURE  OF  PAY.    See  PAY. 

FORGERY. 

1.  Definition— To  constitute  forgery  there  must  be  a  making  of  a  false  instrument  for  the 

purpose  of  creating  another's  liability  with  fraudulent  intent  to  injure  him.    C.  M.  O. 
37,  1909,  11.    See  CRIMINAL  CODE  (35  Stat.  1094,  1112)  for  other  definitions. 

2.  Enlisted  men— Charged  with.    C.  M.  O.  37,  1909,  9;  G.  C.  M.  Rec. 30447;  File  26251- 

10492b. 

FORGING  SIGNATURE. 

1.  Paymaster's  clerk — Forged  prisoner's  signature.    C.  M.  O.  26, 1915. 

FORMAL  ADMISSIONS.    See  ADMISSIONS,  1,  3. 

FORMER  JEOPARDY.    See  JEOPARDY,  FORMER;  PI.EAINBAR. 

FORMER  JUDGMENT. 

1.  When  a  good  bar.    See  JEOPARDY,  FORMER. 

FORMS  OF  PROCEDURE,  19 1O.    See  COURT,  90. 

FORNICATION. 

1.  Enlisted  man— Tried  by  general  court-martial  for,  under  "Scandalous  conduct  tending 
to  the  destruction  of  good  morals."    C.  M.  O.  42, 1915,  3. 


FRAUD.  245 

FOUR  MONTHS'  GRATUITY  PAY.    See  File  28550-20. 

FRATERNAL  ORDERS. 

1.  Medical  officers— Signing  forms  for  enlisted  men  to  secure  sick  dues.    C.  M.  O.  29, 
1915,  6.    See  also  MEDICAL  RECORDS,  5. 

FRAUD. 

1.  A.  G.  N.  8— Proof  of  fraud  under.    See  FKAUD,  5;  FRAUDULENT  ENLISTMENT,  50  (p.  255). 

2.  A.  G.N.  14— Proof  of  fraud  under.    SfeFRAUD,5;  FRAUDULENT  ENLISTMENT,  50(p.255). 

3.  Attempt  to  commit  fraud.    See  FRAUD,  5. 

4.  Classes  of.    See  FRAUD,  5. 

5.  Definition  and  discussion— The  accused  (officer)  was  charged  with  "Fraud  in  vio- 

lation of  article  14  of  the  Articles  for  the  Government  of  the  Navy."  The  court  first 
found  the  accused  guilty  of  "  Irregularity  and  carelessness  in  regard  to  discharge  of 
pecuniary  obligations"  and  upon  revision  guilty  of  "Conduct  unbecoming  an  officer 
and  a  gentleman."  The  convening  authority  (fleet)  approved  the  proceedings  but 
disapproved  the  finding  and  sentence  for  the  reason  that  the  sentence  was  wholly 
inadequate  for  the  offense  of  "Conduct  unbecoming  an  officer  and  a  gentleman." 

The  department,  on  February  1,  1916,  pronounced  the  proceedings,  findings,  and 
sentence  in  this  case  illegal,  and  set  aside  the  same  with  the  following  remarks: 

The  specification  in  this  case  is  not  in  due  form  and  technically  correct,  because  it 
quotes  therein  both  a  public  statute  and  a  Navy  regulation.  Forms  of  Procedure, 
1910,  p.  137,  provides  that  courts  take  judicial  notice  of  "public  statutes"  and  "the 
Navy  Regulations,"  and  that  such  "are  not  required  either  to  be  charged  or  proved." 
Also  in  the  same  publication  (p.  83)  it  is  provided  that  "in  drawing  up  the  charges 
and  specifications,  all  extraneous  matter  is  to  be  carefully  avoided."  The  specification 
in  this  case  is  not  in  accordance  with  the  above  provisions  of  Forms  of  Procedure  and 
is  also  contrary  to  the  Navy  Regulations,  1913,  R-712  (3). 

Aside  from  the  irregular  form  of  the  specification,  it  does  not  allege  an  offense  sup- 
porting the  charge  under  which  it  appears  nor  any  other  charge  cognizable  by  court- 
martial. 

There  are  two  broad  classes  of  fraud,  viz,  fraud  against  the  United  States  and  fraud 
not  against  the  United  States.  The  first  class  is  punishable  under  article  14,  A.  Q.  N., 
and  the  other  under  article  8,  A.  G.  N. 

The  accused  certainly  was  not  guilty  of  any  fraud  against  the  United  States.  Hav- 
ing no  money  to  his  credit,  the  pay  officer  could  not  have  honored  the  accused's 
draft  without  himself  being  guilty  of  embezzlement  and  being  required  to  reimburse 
the  Government  under  his  bond.  Furthermore,  even  had  the  accused  money  on  the 
books,  the  pay  officer  would  not  have  been  authorized  to  pay  such  money  to  another 
on  the  accused's  order,  as  the  law  provides  that  assignmentof  claims  against  the  United 
States  shall  be  void  except  under  specified  conditions  (see  sec.  3477,  R.  S.)  and  in 
certain  cases  of  which  this  isnot  one.  The  "false"  and  "fraudulent"  claims  against 
the  United  States  referred  to  in  article  14,  A.  G.  N.,  evidently  contemplate  claims 
false  or  fraudulent  in  matters  of  fact  and  not  such  as  on  their  face  are  null  and  void 
under  the  law. 

Furthermore,  the  specification  in  this  case  does  not  aver  that  the  accused  actually 
presented  or  caused  to  be  presented  the  above-mentioned  order  or  draft  to  the  Navy 
pay  officer.  (See  C.  M.  0. 160, 1901;  15,  1902.) 

If  an  offense  was  committed  by  the  accused  in  this  case,  it  must  therefore  have  been 
in  violation  of  article  8,  A.  G.N.:thatis,fraudagamstaprivateperson.  Toconstitute 
such  fraud,  however,  it  would  be  necessary  in  the  present  case  for  the  specification 
to  have  shown  affirmatively  that  the  accused  had  (1)  made  a  false  representation  of 
some  existing  or  past  fact  to  the  person  concerned  with  intent  to  defraud;  (2)  that  the 
accused  knew  such  representation  to  be  false;  {3)  that  the  person  concerned  had  be- 
lieved, and  relied  upon  such  false  representation;  and  (4)  that  said  person  concerned 
had  actually  been  defrauded  by,  and  parted  with  something  of  value  in  consequence 
of,  such  false  representation. 

If  the  accused  had  actually  not  defrauded  the  person  concerned,  the  specification 
might  have  supported  a  charge  of  attempt  to  commit  fraud,  provided  it  averred  that 
the  accused  had  made  the  necessary 'false  representation  with  intent  to  defraud. 

In  the  present  case,  however,  the  specification  merely  alleges  that  the  accused 
issued  an  order  or  draft  on  the  pay  officer,  which  order  appears  on  its  face,  as  set  forth 
in  the  specification,  to  be  null  and  void  under  the  law.  It  does  not  allege  that  the 
accused  did  this  with  any  intent  to  defraud,  that  he  made  any  false  representations 
as  to  matters  of  fact,  that  he  received  anything  of  value,  nor  that  he  deceived  or 
actually  defrauded  the  aforesaid  person  concerned  or  any  other  person. 


24G  FRAUD. 

The  specification,  therefore,  does  not  in  any  aspect  support  the  charge  under  which 
it  appears  nor  any  other  charge  cognizable  by  court-martial. 

It  Is  proper  to  add  that  the  uncontradicted  evidence  in  this  case  established  that 
the  accused  made  no  attempt  to  deceive  or  defraud  anyone;  that  when  he  applied 
to  the  person  concerned  for  a  loan  he  was  asked  by  the  fatter  to  sign  an  order  on  the 
pay  officer  for  the  amount  in  question;  that  the  accused  informed  the  person  con- 
cerned that  such  an  order  would  be  wholly  without  value,  and  that  said  person  con- 
cerned was  already  aware  of  the  fact,  and  would  not  have  believed  the  accused  had 
he  represented  that  the  order  would  be  good;  but  that  the  said  person  concerned 
wanted  the  order  or  draft  merely  for  the  purpose  of  using  same,  if  necessary,  as  a 
means  of  bringing  the  matter  to  the  attention  of  the  naval  authorities  if  the  accused 
should  default  in  payment.  Incidentally,  the  evidence  shows  that  the  accused 
actually  repaid  the  loan,  after  a  brief  delay,  which  was  satisfactorily  explained.  C. 
M.  O.  4, 1916.  See  also  STATUTES,  10. 

6.  Disbursing  officer.   See  EMBEZZLEMENT,  7;  FRAUD,  5, 11. 

7.  Discharge — Obtained  fraudulently  by  an  enlisted  man  may  be  set  aside.    See  DIS- 

CHARGE OBTAINED  BY  FRAUD,  2. 

8.  Fraud  in  violation  of  article  14  of  the  Articles  for  the  Government  of  the 

Navy.  See  FRAUD  IN  VIOLATION  OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOV- 
ERNMENT OF  THE  NAVY. 

9.  Fraudulent  practices — Whether  or  not  a  person  accused  has  knowledge  of  fraudulent 

practices  is,  as  a  rule,  from  the  necessities  of  the  case  largely  matter  of  inference.  No 
direct  or  positive  proof  in  regard  to  such  a  matter  can  be  expected.  C.  M.  O.  129, 
1898,  6. 

10.  Fraudulent  intent.    C.  M.  0. 37, 1883,  6. 

11.  Pay  officer — Fraud  is  not  necessary  to  constitute  a  pay  officer  guilty  of  embezzlement. 

File  26251-3252,  J.  A.  Q.,  April  26, 1910,  page  11.    See  also  EMBEZZLEMENT,  7. 

12.  Paymaster's  clerk— Charged  with.    G.  0. 143,  October  28, 1869. 

FRAUD,  IN  VIOLATION  OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE 
GOVERNMENT  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  27,  1887;  4,  1916.    See  also  EXECUTING  A  FRAUD 

AGAINST  THE  UNITED  STATES,  IN  VIOLATION  OF  ARTICLE  14  OF  THE  ARTICLES  FOR 
THE  GOVERNMENT  OF  THE  NAVY. 

2.  Paymaster— Charged  with.    C.  M.  O.  27, 1887. 

3.  Warrant  officer  (commissioned)— Charged  with.    G.  C.  M.  Rec.  25648. 

FRAUDULENT  ENLISTMENT. 

1.  "Alias"— Used  in  specifications  of  "Fraudulent  enlistment."    See  ALIAS,  3. 

2.  Alien— Effect  of  fraudulent  enlistment.    G.  C.  M.  Rec.  24710. 

3.  Allowances — It  is  not  considered  that  in  proving  "Fraudulent  enlistment"  that 

"allowance"  means  necessarily  a  pecuniary  allowance,  as  an  allowance  of  clothing 
or  rations  is  sufficient.  C.  M.  O.  23,  1910,  9.  See  also  C.  M.  O.  5,  1911,  6. 

4.  Same — Not  necessary  to  allege  or  prove  receipt  of  pay  or  allowances  where  the  accused 

was  a  deserter  at  large  at  the  time  of  his  fraudulent  enlistment.  The  act  of  March  3, 
1893  (27  Stat.,715),  making  the  receipt  of  pay  or  allowances  an  ingredient  of  the  offense 
relates  to  fraudulent  enlistment  by  persons  not  already  in  the  service.  File  26251- 
3570:2.  See  also  C.  M.  O.  23, 1910,  8-9;  FRAUDULENT  ENLISTMENT,  50. 

5.  Same — The  proof  of  receipt  of  pay  or  allowances  is  an  essential  feature  necessary  to 

substantiate  the  charge  of  "Fraudulent  enlistment"  if  the  accused  is  not  in  naval 
service.  C.  M.  O.  37, 1909,  5,  7;  15, 1910,  8;  23, 1910;  17, 1916,  4. 

The  accused  was  tried  by  general  court-martial,  by  order  of  the  Commander-in- 
Chief,  U.  8  Atlantic  Fleet,  and  found  guilty  of  "fraudulent  enlistment."  The 
specification  under  the  charge  alleged  that  the  accused  fraudulently  enlisted  on 
September  20.  1915,  having  procured  such  enlistment  by  concealing  from  the  re- 
cruiting officer  that  he  had,  on  October  22, 1900,  deserted  from  the  U.  S.  Navy.  The 
specification  did  not  allege  that  the  accused  had,  since  said  fraudulent  enlistment, 
received  pay  or  allowances  thereunder. 

The  gist  of  the  offense,  therefore,  with  which  the  accused  was  charged,  was  that  on 
September  20,  1915,  he  procured  his  enlistment  by  means  of  false  representations. 
In  other  words,  the  gravamen  of  the  offense  charged  was  an  act  committed  before  the 
accused,  on  September  20, 1915,  had  completed  a  contract— voidable  on  the  part  of  the 
government  by  reason  of  the  fraud  of  the  accused,  but  none  the  less  binding  upon  the 
accused— whereby  he  submitted  himself  to  naval  jurisdiction.  The  question  now 


FRAUDULENT   ENLISTMENT.  247 

arises  as  to  what  was  the  status  01  the  accused  at  the  time  of  making  the  false  repre- 
sentations, which  were  preliminary  to  this  voidable  contract  and  made  before  the 
same  had  become  effective.  Was  he  at  that  time  subject  to  naval  jurisdiction,  and 
was  an  offense  then  committed  one  of  which  a  naval  general  court-martial  could  later 
take  cognizance? 

It  appears  that  the  accused  in  this  case  first  enlisted  in  the  Navy  on  August  30, 
1906,  and  that  this  enlistment  expired  on  August  29,  1910.  On  October  22, 1906,  the 
accused  deserted  from  the  naval  service  and  remained  absent  until  September  20, 
1915,  when  he  fraudulently  enlisted  by  concealing  his  desertion.  Upon  these  facts 
it  may  be  seen  that  while  the  enlistment  of  the  accused  expired  on  August  29, 1910, 
yet  he  had  never  been  discharged  from  the  naval  service.  So  the  specific  question 
to  be  decided  is  whether  on  September  20, 1915,  the  time  of  the  fraudulent  act  of  the 
accused,  he  was  stillin  the  naval  service  by  virtue  of  his  previous  enlistment  and  the 
fact  that  he  had  never  been  discharged  therefrom,  or  whether  he  ceased  to  be  in  the 
naval  service  after  August  29,  1910,  by  virtue  of  the  expiration  of  his  contract  of  en- 
listment on  that  date. 

In  an  Opinion  of  the  Attorney  General,  discussing  the  limitation  of  the  offense  ol 
desertion,  it  is  stated: 

"  This  engagement  [contract  of  enlistment]  binds  the  soldier  for  a  specific  term  of 
service,  beginning  at  a  certain  time  and  running  thence  continuously  day  after  day 
until  tne  end  is  reached,  the  last  day  of  the  term  being  as  much  fixed  by  the  con- 
tract as  the  first.  *  *  *  Thus  it  seems  that  in  our  military  service  the  contract  of 
enlistmentmust  in  all  cases,  even  in  that  of  desertion,  be  regarded  as  having  expired 
when  the  last  day  of  the  term  of  enlistment  therein  fixed  has  elapsed  And  since  the 
obligation  to  serve  depends  upon  the  contract,  and  necessarily  ceases  therewith,  the 
offense  of  desertion,  on  grounds  already  set  forth,  must  be  deemed  to  terminate  at 
the  same  time.  In  short,  that  offense  may  be  viewed  as  continuing  up  to  the  end  of 
the  term  of  his  engagement,  but  not  beyond."  (15  Op.  Atty.  Gen.,  161,  162.) 

While  it  is  to  be  remarked  in  connection  with  the  foregoing  Opinion  of  the  Attorney 
General  that  there  are  legal  ways  in  which  an  enlisted  man  may  be  held  to  service 
after  the  expiration  of  his  enlistment ,  a  discussion  of  the  same  is  not  pertinent  to  the 
present  issue  for  the  purpose  of  which  it  is  sufficient  to  accept  the  above  opinion  as 
controlling  on  the  point  that  the  offense  of  desertion  is  completed  upon  the  expiration 
of  the  offender's  enlistment.  This,  however,  does  not  mean  that  trie  offender  can  no 
longer  be  punished  for  desertion — for  the  statutes  specifically  provide  that  he  remains 
amenable  therefor  for  a  period  of  two  years  after  the  expiration  of  his  enlistment, 
etc. — but  merely  establishes  the  date  when  the  offense  of  desertion  has  been  com- 
pleted. In  other  words,  subsequent  to  the  expiration  of  his -enlistment  a  deserter 
remains  none  the  less  a  deserter,  but  does  not  continue  in  desertion. 

Applying  then  this  conclusion  to  the  facts  in  the  present  case,  it  follows  that  the 
accused's  desertion  came  to  a  termination  upon  the  expiration  of  his  enlistment  on 
August  29,  1910.  and  upon  that  date  his  connection  with  the  naval  service  came  to 
an  end,  except  that  a  statutory  provision  permitted  of  his  trial  for  desertion  during 
the  period  allowed  by  the  statute  of  limitations.  The  status  of  the  accused,  there- 
fore, on  September  20, 1915,  when  he  presented  himself  for  enlistment,  was  that  of  a 
civilian — a  civilian,  it  is  true,  with  a  mark  of  desertion  against  him,  but  none  the  less 
a  civilian.  Having  thus  established  the  accused's  status,  it  is  now  apparent  that  at 
the  time  of  committing  the  offense  with  which  he  is  here  charged,  that  of  inducing 
the  government  by  means  of  fraudulent  representations  to  enter  into  a  contract  with 
him,  the  Navy  had  no  jurisdiction  over  his  person  and  could,  therefore,  not  assume 
jurisdiction  over  an  offense  then  committed  by  the  accused.  The  department  ac- 
cordingly held  the  specification  charging  the  accused  with  fraudulent  enlistment  to 
be  fatally  defective  and  set  aside  the  findings  and  sentence  thereunder.  G  C.  M. 
Rec.  No  32175. 

In  connection  with  the  above  case  it  is  to  be  remarked  that  the  failure  to  bring  the 
accused  to  justice  for  fraudulently  enlisting  was  due  entirely  to  faulty  pleading  A 
statute  is  in  force  which  was  specifically  intended  to  remedy  a  situation  similar  to 
that  which  existed  in  the  present  case.  The  Act  of  March  3,  1893  (27  Stat.,  716), 
provides  that: 

"  Fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance  thereunder,  is 
hereby  declared  an  offense  against  naval  discipline  and  made  punishable  by  general 
court-martial  under  article  22  of  the  Articles  for  the  Government  of  the  Navy." 

Up  to  the  time  of  the  passage  of  this  Act  there  were  in  existence  no  legal  means  of 
trying  by  court-martial  for  this  offense  one  who  was  not  at  the  time  of  fraudulently 
enlisting  subject  to  naval  jurisdiction.  Since  the  passage  of  the  above  Act  the  legal 


248  FRAUDULENT   ENLISTMENT. 

means  exist  for  trying  such  an  offender  but  in  order  to  make  use  of  the  same  it  is 
necessary  that  they  be  properly  pleaded. 

/  Now,  having  in  mind  the  conditions  wliich  were  to  be  remedied  by  the  Act  of 
March  3,  1893,  and  considering  the  language  of  that  statute,  it  may  be  seen  that  the 
gist  of  the  offense  of  fraudulent  enlistment,  when  committed  by  persons  not  in  the 
service  at  the  time  of  procuring  such  enlistment,  is  not  the  false  representations  made 
prior  to  then-  acceptance,  but  is  the  receipt  of  pay  and  allowances  under  a  fraudulent 
enlistment,  which  act  is  committed  after  the  offender  has  completed  a  contract — 
binding  as  to  him  even  though  voidable  by  the  government — whereby  he  has  sub- 
mitted himself  to  naval  jurisdiction.  In  order,  then,  to  have  preferred  a  valid  speci- 
fication against  the  accused,  it  would  only  have  been  necessary  to  have  added  to  the 
specification  the  further  and  material  allegation  that  he  had  received  pay  and  allow- 
ances under  his  fraudulent  enlistment. 

The  foregoing,  of  course,  applies  only  to  the  cases  of  persons  who  are  not  in  the  naval 
service  at  the  time  of  fraudulently  enlisting.  In  the  cases  of  men.  who  are  actually 
in  desertion  as  explained  above,  the  allegation  of  receipt  of  pay  and  allowances  is  not 
essential  to  the  validity  of  a  specification  in  support  of  a  charge  of  fraudulent  enlist- 
ment. In  the  latter  cases  the  offenders  are  subject  to  naval  jurisdiction  at  the  time 
of  making  the  false  representations  whereby  the  fraudulent  enlistments  are  obtained 
and  the  statutory  provision  need  not  be  utilized  in  order  to  complete  the  offense.  In 
fact,  the  insertion  of  the  allegation  of  the  receipt  of  pay  and  allowances  in  these  cases 
merely  makes  necessary  an  attempt  to  prove  more  than  would  otherwise  be  required 
to  sustain  the  charge.  However,  inasmuch  as  in  such  cases,  even  in  the  event  of  fail- 
ure to  prove  the  receipt  of  pay  and  allowances,  the  charge  would  be  sustained  by 
the  proof  of  having  procured  enlistment  by  fraudulent  representations,  while,  in  the 
cases  of  persons  enlisting  fraudulently  while  not  subject  to  naval  jurisdiction,  the 
allegation  of  the  receipt  of  pay  and  allowances  is  vital  to  the  specification,  it  is  a  good 
rule,  in  all  cases  of  fraudulent  enlistment  about  which  there  may  be  any  doubt,  to  set 
forth  this  allegation  in  the  specification.  (In  this  connection  see  C.  M.  O.  23,  1910, 
7-13).  C.  M.  O.  17, 1916.  5-8.  See  also  FRAUDULENT  ENLISTMENT,  87. 
C.  Same — The  offense  of  "Fraudulent  enlistment"  by  persons  not  in  naval  service  is 
completed  by  receipt  of  pay  or  allowances  thereunder.  Before  such  receipt  of  pay, 
persons  so  enlisting  shall  be  discharged  as  undesirable.  File  10031-03;  4061-03. 

7.  Same — Receipt  of  either  pay  or  an  allowance  by  a  person  not  in  the  service  when 

fraudulently  enlisting  completes  the  offense,  and  proof  of  receipt  of  either  under  such 
enlistment  will  support  a  finding  of  guilty  of  that  offense.  C.  M.  O.  23,  1910,  9;  5, 
1911,  6. 

8.  Same— It  is  not  necessary  to  prove  receipt  of  pay  or  an  allowance  where  accused  was 

in  service  (as  a  deserter)  when  fraudulently  enlisting.  C.  M.  O.  23,  1910,  10.  See 
also  C.  M.  0. 103, 1893,  FRAUDULENT  ENLISTMENT,  5. 

9.  Army— Men  dishonorably  discharged  from  Army  enlisting  in  naval  service  should 

be  dishonorably  discharged.    See  ARMY,  10. 

10.  Same— Fraudulent  enlistment  in  Army  discussed.    See  FRAUDULENT  ENLISTMENT, 

50. 

11.  Arraignment — Plea  of  nolo  contendere.    See  NOLO  CONTENDERS. 

12.  Burden  of  proof— On  Government. 

13.  Cancellation— Of  fraudulent  enlistment  and  sentence  served  under  original  sentence. 

See  C.  M.  O.  5,  1896;  49,  1905;  File  2861-02;  10989-02;  26251-2544:3;  FRAUDULENT  EN- 
LISTMENT, 83. 

14.  Charge  of— Prior  to  1893,  those  men  who  were  in  the  service  (deserters,  etc.),  and  who 

fraudulently  enlisted,  were  tried  under  the  charge  of  "Conduct  to  the  prejudice  of 
good  order  and  discipline"  or  "Scandalous  conduct  tending  to  the  destruction  of 
good  morals."  Subsequent  to  1893  fraudulent  enlistment  was  charged  as  "Conduct 
to  the  prejudice  of  good  order  and  discipline."  Later  the  charge  was  changed  to 
read  "Fraudulent  enlistment,  in  violation  of  article  22  of  the  Articles  for  the  Govern- 
ment of  the  Navy."  C.  M.  O.  23,  1910.  See  also  FRAUDULENT  ENLISTMENT,  50. 

15.  Classes— Persons  who  fraudulently  enlist  are  divided  into  two  general  classes:  (1) 

Persons  in  the  service,  as  deserters,  etc.,  and  (2)  persons  not  in  the  service,  as  those 
who  nevep  have  enlisted  or  have  been  discharged. 

Persons  in  the  service  when  fraudulently  enlisting  were  amenable  to  trial  for  that 
offense  prior  to  the  Act  of  July  27, 1892  (27  Stat.,  278),  and  that  statute  was  passed  to 
bring  the  act  of  fraudulently  enlisting  by  a  person  not  in  the  service  within  the  naval 
jurisdiction  as  fraudulent  enlistment  by  making  the  receipt  of  pay  or  allowances 
under  such  enlistment  the  gravamen  of  the  offense.  C.  M.  0. 23, 1910, 9-13. 


FRAUDULENT   ENLISTMENT.  249 


3.  Clothing  allowance— Receipt  of  clothing  all 
ment."    See  FRAUDULENT  ENLISTMENT,  3. 


owance  as  a  proof  of "  Fraudulent  enlist- 

17.  Concealing  prior  discharge  obtained  under  habeas  corpus — A  minor  who  pro- 

cures formal  release  from  enlistment  under  writ  of  habeas  corpus  must  disclose  such 
fact  to  recruiting  officer  when  applying  for  enlistment  subsequently;  otherwise  he 
is  guilty  of  "Fraudulent  enlistment."  C.  M.  O.  12,  1911,  3-5. 

18.  Concealment  of  previous  service — Where  a  seaman  was  regularly  discharged  from 

the  service  upon  expiration  of  his  enlistment  and  reenlisted  under  his  proper  name, 
but  denied  that  he  had  previous  service,  the  department  held  that  such  denial  did 
not  constitute  a  fraud  inasmuch  had  it  been  known  to  the  recruiting  officer,  it  would 
not  have  militated  against  the  man's  reenlistment,  and  therefore  such  reenlistment 
would  not  be  fraudulent.  File  7906-98. 

19.  Conduct  to  the  prejudice  of  good  order  and  discipline — "  Fraudulent  enlistment " 

charged  under,  at  one  time.    See  FRAUDULENT  ENLISTMENT,  14,  50. 

20.  Continuing  offense — The  offense  of  fraudulent  enlistment  is  not  a  continuing  offense 

like  "Desertion."  C.  M.  O.  31,  1910,  5.  See  also  File  5256-04;  1551-04;  C.  M.  O. 
17, 1916,  6,  line  36. 

21.  Corpus  delicti.    See  CORPUS  DELICTI,  2. 

22.  De  facto  enlistment— A  fraudulent  enlistment  is  still  an  enlistment,  and  a  man  so 

enlisting  is  de  facto  in  the  service  and  subject  to  the  jurisdiction  of  a  naval  court- 
martial.  (U.  S.  v.  Reaves,  126  Fed.  Rep.,  127,  file  152-04;  Ex  parte  Rock,  171  Fed. 
Rep.,  240;  Dillingham  v.  Booker,  163  Fed.  Rep.,  6%,  file  5956-6;  In  re  Scott,  144  Fed. 
Rep.,  79,  file  2757-4;  In  re  Lessard,  134  Fed.  Rep.,  305;  Solomon  v.  Davenport,  87  Fed. 
Rep.,  318;  In  re  Morrissey,  137  U.  S.,  157;  compare  Ex  Parte  Bakley,  148  Fed.  Rep.,  56, 
affirmed;  Dillingham  v.  Bakley,  152  Fed.  Hep.,  1022,  file  5506-5;  and  Ex  parte  Losk, 
145  Fed.  Rep.,  860,  file  2757-8.) 

23.  Defense — Accused  did  not  know  he  was  enlisted.    The  accused  was  tried  by  general 

court-martial  upon  the  charge  "Fraudulent  enlistment."  The  specification  of  the 
offense  alleged,  in  substance,  that  the  accused  fraudulently  enlisted  by  concealing 
from  the  recruiting  officer  the  fact  that  he  had  been  discharged  from  the  service  for 
physical  disability. 

The  court  found  the  specification  of  the  charge  "proved  without  criminality,"  and 
acquitted  him  of  the  charge. 

The  department's  letter  returning  the  record  contained  the  following  remarks: 

The  accused  was  charged  with  "  Fraudulent  enlistment,"  the  specification  alleging 
that  he  falsely  represented  to  the  recruiting  officer  that  he  had  never  been  discharged 
from  the  service  for  physical  disability,  etc.  He  pleaded  not  guilty,  and  the  prosecu- 
tion proved  a  prima  facie  case  against  him. 

The  accused  testified  in  effect  that  he  did  not  think  he  was  an  enlisted  man  under 
his  enlistment  of  November  6, 1912,  until  he  "drew  clothes  and  was  assigned  to  some 
duty";  that  he  thought  he  was  merely  "on  trial  and  they  were  examining"  him  to 
see  if  he  "was  able  to  do  service."  Apparently  upon  the  testimony  of  the  accused 
the  court  found  the  specification  "proved  without  criminality"  and  acquitted  him 
of  the  charge.  It  is  to  be  observed,  however,  that  the  accused  also  stated  that  he 
changed  his  surname  when  he  applied  for  the  second  enlistment;  that  he  enlisted  in 
San  Francisco  the  first  time;  that  he  remembered  that  when  he  signed  his  shipping 
articles  there  was  a  statement  there  as  to  whether  he  had  ever  had  any  previous 
service;  that  during  the  eight  days  he  was  first  in  the  service  the  Government  paid 
his  expenses;  that  he  was  given  money  at  the  end  of  that  period;  that  he  was  given 
a  paper  with  the  money,  and  that  the  paper  plainly  showed  on  its  face  that  it  was  a 
discharge  from  the  naval  service. 

From  the  man's  own  testimony  he  is  guilty  of  "  Fraudulent  enlistment."  The 
mere  fact  that  he  did  not  think  he  had  enlisted  in  November  does  not  relieve  him 
from  the  offense,  such  being  ignorance  of  the  law— not  of  the  facts.  In  the  opinion 
of  the  department  the  man  had  no  good  reason  for  believing  that  he  had  not  been 
enlisted  in  November.  A  reading  of  his  testimony  leaves  no  other  conclusion.  But 
even  if  the  court  believes  that  the  accused  did  not  think  he  had  been  enlisted,  yet,  as 
a  matter  of  law,  he  should  be  found  guilty — as  will  hereinafter  be  shown — and  an 
adequate  sentence  should  be  adjudged.  The  fact  that  the  man  did  not  think  he 
had  been  enlisted  is  a  matter  upon  which  a  recommendation  to  clemency  properly 
may  be  based. 

As  to  the  enlistment  of  November  6,  1912,  the  prosecution  proved  that  the  accused 
was  regularly  enlisted  on  that  date.  That  enlistment  was  shown  to  be  legal  and 
binding.  If  the  accused  believed  he  had  not  been  enlisted,  it  is  manifest  that  his 


250  FRAUDULENT   ENLISTMENT. 

mistake  is  a  result  of  ignorance  of  the  law,  since  in  the  eyes  of  the  law  he  was  legally 
enlisted.  The  fact  that  he  did  not  know  that  the  various  acts  and  steps  taken  con- 
stituted an  enlistment  can  not  avail  him  as  a  defense.  "  It  is  the  sett  led  rule  that  every- 
one is  presumed  to  know  the  law  and  that  ignorance  thereof  furnishes  no  exemption 
from  criminal  responsibility.  This  rule  was  even  applied  in  the  extreme  case  of 
violation  of  a  statute  by  a  person  who  was  at  sea  when  it  was  enacted,  and  when  he 
violated  it,  and  who  could  not  have  learned  of  it.  Even  foreigners  coming  into  a 
country  and  ignorantly  violating  its  laws  are  liable,  though  the  act  may  not  be  a 
crime  in  their  own  country.  Nor  is  positive  belief  that  an  act  is  lawful  an  excuse." 
(Clark's  Cr.  L.,  p.  80,  cited  by  the  department  with  approval  in  C.  M.  O.  10, 1911,  7, 
to  which  remarks  the  attention  of  the  court  is  directed.)  As  was  stated  by  the  depart- 
ment in  another  case  (G.  C.  M.  Rec.  26032),  "there  is  nothing  at  all  unusual  in  a 
man's  willfully  and  deliberately  doing  the  acts  in  violation  of  laws  of  which  he  is 
ignorant.  The  court  is  not  supposed  to  investigate  and  determine  whether  or  not 
the  accused  knew  the  law,  the  only  question  being  whether  he  willfully  and  deliber- 
ately did  the  acts  with  which  he  is  charged.  As  plainly  stated  by  the  Attorney 
General  [with  reference  to  statutory  offenses]  In  a  recent  case,  published  in  Court- 
Martial  Order  No.. 4, 19 13,  it  is  the  intention  to  do  theoct  charged  and  not  the  intention 
of  violating  the  law  which  constitutes  criminal  intent.  (A.  G.  Op.,  Nov.  12, 1912.) 
It  appears  that  the  accused  knew  what  he  was  doing  when  he  made  a  false  oath  to 
the  recruiting  officer,  and  he  certainly  intended  to  deceive  the  recruiting  officer  or  he 
•would  not  have  taken  such  a  false  oath.  He  does  not  say  he  was  drunk  or  insane 
when  he  enlisted,  or  that  he  had  a  lapse  of  memory. 

In  this  case  the  accused  acknowledged  having  performed  in  November  last  the 
acts  which  in  fact  constituted  a  lawful  enlistment.  He  did  not  contend  that  he  was 
drunk  or  insane  or  that  he  had  a  lapse  of  memory  at  that  time.  The  same  is  applicable 
to  his  enlistment  in  January,  1913. 

Therefore,  as  a  matter  of  law,  the  accused  should  be  found  guilty  of  the  charge.  If 
the  facts  warrant,  the  department  may  remit  the  entire  sentence  and  restore  the 
accused  unconditionally  to  duty. 

The  court,  in  revision,  revoked  its  original  findings  and  acquittal,  found  the  speci- 
fication of  the  charge  proved  and  the  accused  guilty  of  the  charge,  and  adjudged  an 
adequate  sentence  in  view  thereof.  C.  M.  0.  10, 1913,  3-5. 

24.  Maine — Drunkenness  as  a  defense.    C.  M.  O.  10,  1913,  4.    See  also  FRAUDULENT  EN- 

LISTMENT, 23. 

25.  Same— Lapse  of  memory  as  a  defense.    C.  M.  O.  10,  1913,  5.    See  also  FRAUDULENT 

ENLISTMENT,  23. 

26.  Same— Insanity  as  a  defense.    C.  M.  O.  10,  1911,  5.    See  also  FRAUDULENT  ENLIST- 

MENT, 23. 

27.  Same — Typhoid  fever  affecting  intent — The  accused  was  tried  by  general  court-martial, 

being  charged  with  "Fraudulent  enlistment,"  having  deliberately  and  willfully 
concealed  from  the  recruiting  officer  the  fact  that  he  had  been  discharged  from  the 
United  States  Navy  as  undesirable  while  serving  under  another  name. 

In  the  opinion  of  the  department  every  allegation  contained  in  the  specification 
of  the  charge  was  proved  by  the  evidence  adduced  by  the  prosecution  and  the  admis- 
sion by  counsel  for  the  accused  as  to  the  identity  of  the  accused. 

The  court  found  the  accused  "guilty  but  without  culpability,"  presumably  in  view 
of  the  testimony  brought  forward  by  the  defense  to  show  that  the  accused  was  in  the 
first  stages  of  typhoid  fever  at  the  time  of  his  fraudulent  enlistment  and  was  therefore 
mentally  incapable  of  entertaining  the  required  criminal  intent  to  deliberately  and 
willfully  conceal  from  the  recruiting  officer  the  fact  that  he  had  been  discharged  from 
the  Navy  as  undesirable. 

The  first  witness  for  the  defense  testified  that  when  the  accused  arrived  at  the  navy 
yard,  Philadelphia  (Oct.  18, 1910),  the  day  after  enlisting,  that  he  had  a  temperature 
of  104  °  F. ;  that  In  the  opinion  of  the  witness  the  accused  was  on  that  date  in  the  seventh 
day  of  the  disease.  Witness  stated  that  in  his  opinion  the  accused,  on  the  day  he 
reported,  would  not  "have  been  in  a  proper  condition  to  commit  legal  involvement, 
or  to  sign  papers,  or  to  have  been  responsible  for  any  legal  contract,"  due  to  his  high 
temperature.  This  witness's  testimony  was  almost  entirely  negatived  by  his  answers 
to  questions  when  he  testified  that  the  accused,  at  the  time  of  enlistment,  did  not  have 
as  high  a  temperature;  that  he  did  not  see  him  when  he  enlisted,  and  therefore  did 
not  know  whether  or  not  the  accused  had  sufficient  temperature  to  make  him  irre- 
sponsible at  that  time. 


FRAUDULENT   ENLISTMENT.  251 

The  second  witness  for  the  defense  testified  that  in  his  opinion  the  accused  had  been 
suffering  from  typhoid  fever  "some  few  days"  before  coming  to  the  hospital  (Oct.  20, 
1910,  three  days  after  enlisting);  that  the  accused  "had  been  infected  and  there  were 
some  symptoms,  I  would  say,  on  the  17th,"  when  he  enlisted;  that  he  "probably  had 
a  temperature  of  a  hundred  and  one  or  two  when  he  enlisted."  Witness,  when  asked 
by  the  court  if  he  thought  that  a  man  with  a  temperature  of  101  would  be  likely  to 
forget  his  own  identity,  or  to  lose  his  own  identity,  answered,  "No,  sir;  I  can't  say 
that  he  is."  Witness  then  stated  that  he  had  seen  cases  with  a  temperature  of  99 
and  99J  delirious  and  had  to  be  restrained  physically,  but  that  he  did  not  think  any 
doctor  would  have  passed  such  a  subject  on  an  examination  for  enlistment. 

The  department  therefore  returned  the  record  to  the  court  for  a  reconsideration  of 
its  findings  and  sentence. 

The  court  in  revision  respectfully  adhered  to  its  former  finding  and  acquittal. 

In  other  words,  the  court  puts  itself  on  record  as  finding  the  accused  guilty  of 
deliberately  and  willfully  concealing  from  the  recruiting  officer  his  prior  discharge  as. 
undesirable  from  the  United  States  Navy,  but  that  this  deliberate  and  willful  act 
by  the  accused  was  "without  culpability."  Such  findings  are  utterly  inconsistent. 
From  the  evidence  in  the  case  it  is  apparent  that  the  accused  assumed  a  false  name 
and  concealed  the  fact  of  a  prior  undesirable  discharge  from  the  service  in  order  to 
procure  himself  to  be  accepted  for  enlistment. 

The  department,  therefore,  disapproved  the  proceedings,  findings,  and  acquittal 
in  this  case,  and  directed  that  as  an  entirely  separate  and  independent  proceeding, 
the  accused  be  discharged  from  the  service  as  undesirable  as  soon  as  practicable. 
C.  M.  O.  7, 1911, 14-16. 

28.  Same— Statute  of  limitations.    See  FRAUDULENT  ENLISTMENT,  87-90. 

29.  Definition— A  fraudulent  enlistment  is  an  enlistment  procured  by  means  of  a  willful 

misrepresentation  in  regard  to  a  qualification  or  disqualification  for  enlistment,  or 
by  intentional  concealment  of  a  disqualification,  which  has  had  the  effect  of  causing 
the  enlistment  of  a  man  not  qualified  to  be  enlisted,  and  who,  but  for  such  false 
representation  or  concealment,  would  have  been  rejected.  C.  M.  O.  23,  1910,  7-8. 

The  gist  of  the  offense  of  "Fraudulent  enlistment"  is  the  concealment  of  a  fact 
knowingly  and  willfully  which,  if  known  to  the  recruiting  officer,  would  cause  the 
rejection  of  the  applicant.  C.  M.  O.  12,  1911,  4. 

The  offense  of  fraudulent  enlistment  consists  or  two  elements:  (1)  Entry  into  the 
service  by  false  pretenses,  i.  e.,  misrepresentation  or  concealment  of  some  matter 
which,  if  known,  would  stand  as  a  bar  to  enlistment;  and  (2)  receipt  of  pay  and  allow- 
ances under  such  enlistment.  File  5256-04.  See  also  FRAUDULENT  ENLISTMENT, 
48-50. 

30.  Deserter — Void  or  voidable — The  accused  deserted  from  the  Navy  and  fraudulently 

reenlisted,  was  tried  and  convicted  of  "Desertion,"  the  department  inadvertently 
failing  to  charge  him  with  "Fraudulent  enlistment"  at  the  same  time;  the  finding 
and  sentence  for  desertion  were  approved  but  the  period  of  confinement  was  mitigated 
and  action  on  the  dishonorable  discharge  held  in  abeyance  with  a  view  to  the  restora- 
tion of  the  prisoner  to  duty.  The  department  held  that  the  fraudulent  enlistment 
of  the  accused  "is  not  void  but  voidable  only  and  may,  if  the  public  interests  so  in- 
dicate, be  treated  as  valid."  File  1676-01. 

31.  Same — For  complete  reference  to  laws  and  decisions  supporting  the  conclusion  that 

the  fraudulent  enlistment  of  a  deserter  is  void  ab  initio  and  not  merely  voidable, 
together  with  a  discussion  of  the  question  and  rulings  of  the  War  Department  thereon 
see  File  7657-132.  See  also  File  7657-132;. 7657-129;  G.  C.  M.  Rec.  25190. 

32.  Same— The  contracts  were  voidable  and  not  void,  and  I  am  of  the  opinion  that,  until 

rescinded  by  the  action  of  the  Government,  any  proper  payments  made  by  the  dis- 
bursing officer  must  be  considered  as  legally  made  and  he  should  be  entitled  to  credit 
for  the  same.  (11  Comp.  Dec.  712.)  File  4040,  April,  1906. 

33.  Same— Statute  of  limitations  expired.    See  File  26262-2585.    See  also  FRAUDULENT 

ENLISTMENT,  87-90. 

34.  Same — Where  a  man  deserted  from  one  branch  of  the  service  (Navy)  and  enlisted  in 

another  (Marine  Corps),  it  appears  to  be  the  practice  to  discharge  him  dishonorably 
from  his  second  enlistment  only,  the  first  being  apparently  regarded  as  abrogated, 
so  far  as  the  United  States  is  concerned,  by  desertion.  C.  M.  O.  5,  1896. 
3.1.  Same — "  It  seems  to  me  illogical  to  say  that  a  man  can  commit  a  crime,  and,  when 
arrested,  obtain  a  discharge  on  the  ground  that  the  original  enlistment  was  not  proper 
or  regular."  File  7969-04;  7988-04.  See  also  HABEAS  CORPUS,  16. 


252  FRAUDULENT   ENLISTMENT. 

36.  Same— Continuous  service— A  fireman  holding  a  continuous-service  certificate  who 

deserted  and  subsequently  fraudulently  enlisted  after  having  been  tried  for  the  oflense 
and  served  his  sentence,  and  his  fraudulent  enlistment  having  been  canceled  is  held 
entitled  to  the  benefits  of  continuous  service  from  the  date  of  his  last,  or  fraudulent, 
enlistment.  File  10462-04. 

37.  Desertion,  proof  as  part  of—"  Fraudulent  enlistment "  constitutes  proof  of  technical 

desertion,  but  in  a  case  where  the  accused  manifestly  lacked  the  intention  to  desert 
and  enlisted  fraudulently  as  the  only  means  within  his  knowledge  of  returning  to 
his  post,  the  department  held  that  under  the  facts  of  the  case  he  was  criminally  guilty 
of  only  absence  from  station  and  duty  without  leave.  C.  M.  O.  30,  1910,  4-5. 

38.  Desertion— Fraudulent  enlistment  as  proof  of  desertion.    C.  M.  O.  22, 1904,  2;  23, 

1910,  8.    See  also  FRAUDULENT  ENLISTMENT,  50. 

39.  Dishonorable  discharge — Men  concealing  dishonorable  discharge  from  the  Army 

should  be  dishonorably  discharged  from  the  naval  service.    See  Army,  10. 

40.  Same — The  department  considers  that  a  man  who  has  been  found  guilty  of  "  Fraudu- 

lent enlistment "  is  not  a  suitable  person  to  be  retained  in  the  naval  service.  C.  M.  O. 
102, 1893,  2.  See  also  FRAUDULENT  ENLISTMENT,  84. 

41.  Enlistment  ratified— Accused  may  be  tried  for  fraudulent  enlistment  even  where 

enlistment  has  been  ratified.  File  26251-8539;  1,  J.  A.  G.,  Jan.  21,  1914.  See  also 
FRAUDULENT  ENLISTMENT,  75,  76. 

42.  Evidence  of— Corpus  delicti.    See  CORPUS  DELICTI,  2. 

43.  Same — In  trial  for  "Fraudulent  enlistment,"  court  ruled  that  statement  of  age  given 

in  first  sheet  of  the  enlistment  record  of  the  accused  was  not  evidence;  the  depart- 
ment held  that  the  ruling  of  the  court  was  erroneous.  C.  M.  O.  94,  1905. 

44.  Finding— Inconsistent.    See  FINDINGS,  52. 

45.  "Fraudulent  enlistment,  in  violation  of  article  22  of  the  Articles  for  the 

Government  of  the  Navy" — "Fraudulent  enlistment,"  charged  as.  C.  M.  O. 
23, 1910.  See  also  FRAUDULENT  ENLISTMENT,  14. 

46.  General  courts-martial — Fraudulent  enlistment  and  the  receipt  of  any  pay  or  al- 

lowance thereunder  are  offenses  against  naval  discipline  punishable  by  general  court- 
martial.  (Act,  Mar.  3,  1893,  27  Stat.  715.)  (R-3534.)  File  26262-2585,  J.  A.  G., 
June  8,  1916;  G.  C.  M.  Rec.  32175.  See  also  C.  M.  O.  17,  1916. 

47.  General  Order  No.  11O— Schedule  of  punishments  in  General  Order  No.  110,  July  27, 

1914,  provided  that  "Fraudulent  enlistment"  might  be  tried  by  summary  courts- 
martial;  General  Order  No.  110  (Revised)  does  not.  See  FRAUDULENT  ENLISTMENT, 
91. 

48.  Gist— The  gist  of  the  offense  of  "  Fraudulent  enlistment"  is  the  concealment  of  a  fact 

knowingly  and  willfully  which,  if  known  to  the  recruiting  officer,  would  cause  the 
rejection  of  the  applicant.  (C.  M.  O.  12,  1911,  4.)  The  gist  of  the  legal  offense  of 
"  Fraudulent  enlistment "  by  a  person  who  is  not  (as  is  a  deserter)  in  the  naval  service 
consists  in  the  receipt  of  pay  or  allowance.  (C.  M.  O.  23,  1910.)  See  also  FRAUDU- 
LENT ENLISTMENT,  5,  29,  50. 

49.  Gravamen— In  the  case  of "  Fraudulent  enlistment "  of  persons  not  in  the  naval  service 

when  fraudulently  enlisting  it  is  not  the  misrepresentations  but  the  further  and  ma- 
terial fact  of  obtaining  pay  or  allowances,  etc.,  from  the  Government  that  constitutes 
the  gravamen  of  the  charge.  C.  M.  0. 23,  1910.  See  also  FRAUDULENT  ENLISTMENT, 
5,50. 

50.  History,  definition,  and  discussion— A  fraudulent  enlistment  is  an  enlistment  pro- 

cured by  means  of  a  willful  misrepresentation  in  regard  to  a  qualification  or  disquali- 
fication for  enlistment,  or  by  intentional  concealment  of  a  disqualification,  which  has 
had  the  effect  of  causing  the  enlistment  of  a  man  not  qualified  to  be  enlisted,  and 
who,  but  for  such  false  representation  or  concealment,  would  have  been  rejected. 

Persons  who  enlist  fraudulently  are  divided  into  two  general  classes:  (1)  Persons 
in  the  service,  i.  e.,  deserters,  etc.,  and  (2)  Persons  not  in  the  service,  i.  e.,  those  who 
have  never  been  enlisted,  or  those  who,  having  once  been  enlisted,  have  been  dis- 
charged. 

With  regard  to  the  first  of  these  classes  there  is  an  Article  of  War  which,  in  the  Army, 
covers  such  cases.  That  article  reads  as  follows: 

"ART.  50.  No  noncommissioned  officer  or  soldier  shall  enlist  himself  in  any  other 
regiment,  troop,  or  company  without  a  regular  discharge  from  the  regiment,  troop,  or 
company  in  which  he  last  served,  on  penalty  of  being  reputed  a  deserter,  and  suffering 
accordingly  *  *  *." 

Concerning  the  foregoing,  Winthrop  says  (p.  1009): 

"  It  is  to  be  construed,  however,  not  as  creating  an  offense  distinct  from  the  desertion 
made  punishable  by  article  47,  but  as  indicating  a  specific  form  of  such  offense,  or 


FRAUDULENT   ENLISTMENT.  253 

rather  as  declaring  that  the  act  of  reenlisting  under  the  circumstances  described  shall 
constitute  proof  of  desertion  on  the  part  of  the  sojdier.  The  object  of  the  provision 
evidently  was  to  preclude  the  notion  that  a  soldier  could  be  relieved  from  liability 
as  a  deserter  because  on  abandoning  his  regiment  he  proceeded  to  rcentcr  the  service 
in  another,  or,  in  other  words,  that  he  could  be  excused  from  repudiating  his  pending 
contract  by  substituting  another  in  its  place." 

It  will  be  seen,  therefore,  that  the  act  of  enlisting  in  the  Army  by  a  deserter  who  has 
not  been  regularly  discharged  was  and  is  an  offense  under  the  fiftieth  Article  of  War, 
and  when  a  deserter  reenlists  under  the  circumstances  contemplated  therein  he  is 
Charged  with  desertion  and  with  violation  of  the  fiftieth  article  of  war.  The  specifica- 
tion sometimes  merely  alleged  the  facts  of  the  reenlistment  (Army  G.  C.  M.  O.  No. 
63,  1879).  and  sometimes  alleged  that  the  offender  did  "fraudulently  enlist,"  etc. 
(Army  G.  C.  M.  O.  No.  35, 1878). 

In  the  act  of  July  27, 1892  (27  Stat.  278),  appears  the  following: 

"SEC.  3.  That  fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance  there- 
under, is  hereby  declared  a  military  offense  and  made  punishable  by  court-martial 
under  the  sixty-second  article  of  war." 

Concerning  the  foregoing,  Winthrop  (p.  1140)  says: 

"Prior  to  this  legislation  fraudulent  enlistment  was  not,  in  the  opinion  of  the 
author,  triable  by  court-martial,  for  the  reason  that  the  fraudulent  representations, 
etc.,  in  which  the  offense  consisted  must  have  been  preliminary  and  made  as  an 
inducement  to  the  enlistment,  and  so  before  it  was  consummated,  and  while  there- 
fore the  individual  was  still  a  civilian  and  not  constitutionally  amenable  to  such  trial. " 

It  should  be  observed  that  Winthrop  calls  "Fraudulent  enlistment"  the  offense 
of  a  civilian  enlisting  by  means  of  misrepresentations,  etc.,  and  does  not  mean  the 
offense  of  a  deserter  neenlisting,  the  punishment  for  which  was  already  provided  for 
in  the  fiftieth  article  of  war.  He  then  goes  on  to  say: 

"A  statute  assuming  to  make  mere  fraudulent  enlistment  so  triable  would  not 
remove  the  objection,  since  a  statute  can  not  do  away  with  a  constitutional  inca- 
pacity to  confer  jurisdiction  where  the  Constitution  denies  it.  But  the  receipt  of 
'pay'  or  an  'allowance'  under  an  enlistment  knowingly  fraudulent  is  an  offense, 
because  the  pay,  etc..  is  not  received  until  the  enlistment  has  been  completed  and 
the  party  is  actually  in  the  military  service.  It  is  thus  the  receipt  of  pay  or  of  an 
allowance  (as  an  allowanceof  clothing  or  rations,  for  it  is  not  considered  that  'allow- 
ance' means  necessarily  pecuniary  allowance)  which  is  the  gist  of  the  legal  offense 
and  which  in  fact  constitutes  it. "  • 

That  is,  the  gist  of  the  legal  offense  of  the  fraudulent  enlistment  by  misrepresenta- 
tions, etc.,  of  a  person  who  is  not,  as  is  a  deserter,  in  the  service,  consists  in  the 
receipt  of  pay  or  allowance. 

Winthrop  continues: 

"A  person  who  has  procured  himself  to  be  enlisted  by  means  of  false  representa- 
tions as  to  his  status  is  not,  before  having  received  pay  or  an  allowance,  or  until  he 
receives  one  or  the  other ,  amenable  to  military  trial . " 

Concerning  the  foregoing  matters,  the  following  paragraphs  are  taken  from  the 
Army  Digest,  1901: 

"1417.  Before  fraudulent  enlistment  was  made  a  military  offense  by  the  act  of  July 
27, 1892 127  Stat.  278],  it  was  held  that  persons  fraudulently  enlisting  (except  those  who 
were  undischarged  under  a  former  enlistment)  could  not  be  tried  for  the  fraudulent 
enlistment  as  a  military  offense,  because  when  the  act  was  done  they  were  not  in 
the  'land  forces.'  So  in  the  act  of  1892,  receipt  of  pay  or  allowance  was  made  part  of 
the  offense.  The  complete  offense  therefore  is  the  entry  into  the  service  by  means 
of  a  misrepresentation  and  the  receipt  of  pay  or  allowance.  The  procuring  of  the 
enlistment  by  means  of  misrepresentation,  etc.,  and  not  the  misrepresentation  itself 
constitutues  the  offense." 

From  the  above  it  will  be  seen  that  persons  fraudulently  enlisting  who  were  undis- 
charged under  a  former  enlistment,  i.  e. ,  deserters,  etc.,  could,  before  the  legislation 
of  1892,  be  tried  for  the  offense  of  fraudulent  enlistment .  As  already  seen,  such  persons 
were  amenable  under  the  fiftieth  article  of  war.  The  Army  Digest,  1901,  then  in 
the  next  paragraph  continues: 

"1418.  The  act  of  enlisting  without  a  discharge  from  a  prior  enlistment  was  pun- 
ishable as  fraudulent  enlistment  before  the  enactment  of  the  legislation  of  July  27, 
1892  [27  Stat.  278],  there  being  no  doubt  that  the  soldier  so  enlisting  is  in  the  military 
service  at  the  time  of  such  fraudulent  enlistment.  In  such  a  case  it  is  not  necessary 


254  FRAUDULENT  ENLISTMENT. 

to  allege  the  receipt  of  pay  or  allowances.  These  words  were  inserted  in  the  act  of 
1892  to  meet  the  cases  of  men,  not  b9und  to  service,  who  fraudulently  enlist;  *  *  *. 
In  these  cases,  therefore,  an  allegation  in  the  specification  of  receipt  of  pay  or  allow- 
ances is  essential  to  properly  describe  the  military  offense  of  fraudulent  enlistment 
denned  and  prohibited  by  the  statute." 

From  the  foregoing  it  will  be  seen  that  a  plain  distinction  is  drawn  between  the  two 
kinds  of  fraudulent  enlistment,  i.  e. ,  that  of  deserters,  and  that  of  persons  who  are  not 
in  the  service;  and  that  the  act  of  1892  was  passed  specially  to  reach  this  latter  class, 
which  was  not  previously  amenable  to  trial  for  the  offense.  And  with  regard  to  the 
latter  class,  it  is  essential  in  their  cases  to  allege  the  receipt  of  pay  and  allowances; 
but  even  before  the  statute  the  other  class  could  be  tried  for  the  offense  and  it  was  not 
then  necessary  to  introduce  any  similar  allegation  in  the  specification,  and  their 
status  is  the  same  as  before. 

Winthrop,on  page  1141,  cites  a  number  of  instances  of  the  offense  under  the  statute. 
and  an  examination  of  them  shows  that  they  are  all  cases  where  the  offender  was  not 
in  the  military  service  at  the  time  of  the  fraudulent  enlistment.  In  view  of  the  fact 
that  article  50  of  the  Articles  of  War  specially  provides  for  punishing  the  reenlistment 
of  deserters,  Winthrop  (p.  1141)  says  that  such  an  offense  (in  the  Army)  is  a  form  of 
desertion,  and  is  erroneously  charged  as  "Fraudulent  enlistment,"  or  otherwise  than 
as  "Desertion."  But  inasmuch  as  there  is  no  similar  article  in  the  Articles  for  the 
Government  of  the  Navy,  as  has  been  already  pointed  out,  these  remarks  would  not 
apply  to  the  Navy.  Furthermore,  even  had  there  been  no  such  provision  in  the 
Articles  of  War,  such  offenses  would  still  have  been  triable  under  the  sixty-second 
article,  being  one  not  specially  "mentioned  in  the  foregoing  articles,"  etc.,  and  con- 
sisting of  "Conduct  to  the  prejudice  of  good  order  and  military  discipline." 

With  regard  to  fraudulent  enlistment  in  the  Navy,  the  act  of  March  3,  1893  (27 
Stat.,  715),  contained  the  following  provision: 

"Fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance  thereunder,  is 
hereby  declared  an  offense  against  naval  discipline  and  made  punishable  by  general 
court-martial  under  article  22  of  the  Articles  for  the  Government  of  the  Navy; 
*  *  *  >> 

The  foregoing  is  expressed  in  almost  identicajl  terms  with  the  similar  provision 
relating  to  the  Army  in  the  act  of  July  27,  1892.  (27  Stat.  278.) 

Before  1893,  while  there  were  no  trials  of  men  not  in  the  service,  i.  e.,  deserters,  for 
"fraudulent  enlistment,"  yet  those  who  deserted  and  fraudulently  reenlisted  were 
tried  under  the  charge  of  "conduct  to  the  prejudice  of  good  order  and  discipline;" 
that  is,  under  article  22  of  Articles  for  the  Government  of  the  Navy,  or  in  some  cases 
the  facts  of  the  fraudulent  enlistment  were  alleged  in  the  same  specification  which 
included  the  facts  of  the  former  desertion.  (G.  C.  M.  Rec.  7419,  7424.)  Cases  have 
also  been  found  where  it  was  charged  as  "scandalous  conduct  tending  to  the  destruc- 
tion of  good  morals."  (G.  C.  M.  Rec.  7440,  7445.) 

Subsequent  to  1893,  the  year  of  the  passage  of  the  legislation  above  quoted,  it  seems 


cases  where  the  offender  was  and  also  where  he  was  not  in  the  service  at  the  time  of 
his  fraudulent  enlistment,  and  all  of  those  specifications  allege  the  receipt  of  pay  and 
allowances  thereunder. 

Later,  in  Lauchheimer's  Forms  of  Procedure,  1902,  the  charge  was  changed  to  read 
"Fraudulent  enlistment,  in  violation  of  article  22  of  the  Articles  for  the  Government 
of  the  Navy,"  the  specifications  including  both  classes  of  cases,  and  all  alleging  the 
receipt  of  pay  and  allowances. 

No  questions  having  arisen  as  to  the  form  of  these  specifications,  they  were  carried 
into  the  Forms  of  Procedure,  1910,  using  the  same  phraseology  as  that  previously  used. 

In  the  annual  report  of  the  Judge  Advocate  General,  datea  October  1, 1893,  the  first 
report  after  the  enactment  of  the  legislation  relating  to  fraudulent  enlistment  in  the 
Navy.it  is  stated: 

"Although  the  above  enactment  respecting  fraudulent  enlistment  did  not  go  into 
effect  until  May  2,  1893,  trials  and  convictions  have  already  been  had  under  its  au- 
thority, and  it  is  believed  that  its  effect  upon  the  morale  of  the  service  will  be  excel- 
lent, inasmuch  as  it  provides  for  the  salutary  punishment  of  a  class  of  offenders  who, 
not  being  regularly  enlisted,  were  formerly  beyond  the  reach  of  a  naval  court,  although 
the  offenses  committed  by  them  were  strictly  offenses  against  naval  discipline  and 
tended  to  exercise  a  demoralizing  influence  upon  the  service." 


FRAUDULENT    ENLISTMENT.  255 

Here  it  is  seen  that  the  class  which  the  legislation  was  intended  to  reach  was  that 
whichincluded  men  "not  being  regularly  enlisted."  It  was  not  aimed  to  reach  those 
who  were  already  amenable  to  naval  discipline,  but,  just  as  in  the  Army,  to  secure 
the  punishment  of  those  persons  who  could  not  previously  be  tried. 

And  again,  in  a  memorandum  prepared  by  the  Judge  Advocate  General  for  the 
Secretary  of  the  Navy,  dated  Septemoer  8,  133.5,  relating  to  the  question  whether  it 
would  not  be  better  to  stand  upon  the  man's  oath  as  conclusive  evidence  of  his  age 
unless  released  by  a  civil  court  upon  habeas  corpus  proceedings  (Press  copy  book, 
No.  13,  Briefs  and.  Opinions,  pp.  484,  486),  it  is  said: 

"  It  is  of  record,  among  the  traditions  of  this  olTense,  that  prior  to  1893  much  annoy- 
ance was  caused  by  the  enlistment  of  boys  under  the  statutory  age  through  false 
oaths  and  fictitious  impersonation  of  parents  or  guardians,  such  boys  remaining  in 
the  naval  service  as  long  as  they  chose  so  do  to  and  then  repudiating  the  contract. 
"Fraudulent  enlistment"  was  not  then  an  offense  reachable  by  naval  authority. 
The  abuse  became  of  such  magnitude,  particularly  in  New  York  City,  that  remedy 
was  sought  through  the  passage  of  the  following  statute,  embodied  in  the  act  of  March. 
3, 1893  (27  Stat.  715):  *  *  *" 

In  the  Navy,  then,  as  in  the  Army,  the  statute  was  passed,  not  to  make  the  receipt 
of  pay  or  allowance  on  additional  ingredient  of  the  offense,  but  rather  that  by  the  inser- 
tion of  that  provision  there  could  be  reached,  in  both  services,  a  class  of  offenders  who 
were  not  before  punishable. 

There  seems  to  be  no  doubt  that  the  act  of  a  deserter  in  enlisting  fraudulently  could 
have  been  punished  prior  to  1893  under  article  22  of  the  Articles  for  the  Government 
of  the  Navy;  it  is  not  one  of  the  offenses  "specified  in  the  foregoing  articles,"  but  it  is, 
nevertheless,  an  ollense  which  is  prejudicial  to  naval  discipline,  and  it  is,  in  such  a 
case,  committed  by  a  person  "  belonging  to  the  Navy."  And  this  is  so,  even  though 
the  offense  may  not  fall  within  the  kinds  of  "  fraud"  contemplated  in  article  8,  para- 
graph 1.  or  under  "any  other  fraud"  mentioned  in  the  next  to  the  last  paragraph  of 
article  14. 

But,  on  the  other  hand,  before  1893.  it  was  not  possible  to  try  a  person  who  was 
not  in  the  service  for  "  fraudulent  enlistment,"  and  such  offenders  went  unpunished. 
Subsequent  to  the  legislation  of  1893.  the  status  of  deserters  was  unchanged,  but 
the  other  general  class  was  also  reached  by  that  enactment,  when  before  they  could 
not  be,  and  this  was  accomplished  by  making  the  offense  consist  of  "fraudulent  enlist- 
ment, and  the  receipt  of  any  pay  or  allowance  thereunder." 

From  a  review  of  the  history  of  the  matter,  and  considering  the  mischief  that  was 
to  be  cured  by  the  act  of  March  3, 1893  (27  Stat.  715),  it  is  not  believed  that  it  was 
the  intention  of  the  law  to  increase  the  difficulty  of  proof  of  the  offense  by  the  further 
allegation  of  the  receipt  of  pay  or  allowance  in  the  cases  of  manifest  offenders,  i.  e., 
those  who  were  already  deserters,  who  proceeded  to  add  a  fraudulent  enlistment  to 
their  offense  of  desertion.  Rather,  as  has  been  said,  it  was  intended  to  reach  a  class 
of  offenders  who.  not  being  in  the  service,  were  not  amenable  to  trial  until  such  receipt 
actually  completed  the  offense,  the  offense  being,  as  set  forth  in  the  statute,  "  fraudu- 
lent enlistment  and  the  receipt  of  any  pay  or  allowance  thereunder. "  In  such  cases 
it  is  not  the  misrepresentations  but  the  further  and  material  fact  of  obtaining  pay, 
etc.,  from  the  Government  that  constitutes  the  gravamen  of  the  charge.  [See  File 
26262-2585;  J.  A.  G-t  June  8, 1916;  G.  C.  M.  Rec.  32175;  C.  M.  0. 17, 1910,  4.] 

While,  therefore,  in  the  cases  of  deserters  who  fraudulently  enlist,  it  is  not  necesnary 
to  allege  the  receipt  of  pay,  etc.,  as  a  material  element  of  the  specification,  it  can  not 
be  harmful,  except  that  it  may  not  be  possible  to  prove  it  in  all  cases.  But  even 
though  it  be  not  proved,  still  without  proof  of  such  receipt  the  charge  may,  in  those 
cases,  be  found  prored,  because  the  fact  of  such  receipt  is  not  necessary  to  support 
the  charge.  C.  M.  O.  23, 1910,  7-13. 

51.  Identification  of  accused— It  is  essential  to  prove  that  the  man  at  the  bar  is  the  same 

as  the  one  charged  with  having  deserted  (or  been  discharged)  prior  to  enlistment. 
Such  may  be  done  by  proving  that  the  previous  enlistment  record  applied  to  the 
accused— that  it  was  the  paper  containing  the  history  of  his  naval  service — and  by 
proving  that  the  same  man  described  therein  fraudulently  enlisted  by  concealing  his 
prior  service.  C.  M.  O.  37, 1909,  5-7;  14, 1910, 15-16.  See  also  C.  M.  O.  28.  1910,  8. 

52.  Insanity — As  a  defense  to  "fraudulent  enlistments"  must  be  shown  to  nave  existed 

at  the  time  of  the  commission  of  the  act.  It  will  also  be  a  good  bar  to  trial  if  existing 
at  the  time  of  the  trial.  C.  M.  O.  42, 1909, 12-15.  See  also  FRAUDULENT  ENLISTMENT, 
23;  INSANITY,  8,  32. 

53.  Intent.    See  FRAUDULENT  ENLISTMENT,  23,  27. 

50756°— 17 17 


256  FRAUDULENT   ENLISTMENT. 

64.  Jurisdiction.    See  FRAUDULENT  ENLISTMENT,  22,  40,  87-90. 

55.  Limitation  to  punishment— The  accused  was  found  guilty  of  "fraudulent  enlist- 

ment" and  sentenced  to  18  months'  confinement  at  hard  labor  and  dishonorable  dis- 
charge. The  record  was  returned  to  the  court  for  a  reconsideration  of  the  sentence, 
as  it  was  in  excess  of  the  limitations  prescribed  by  the  President  of  one-year  confine- 
ment and  dishonorable  discharge  for  the  offense  of  "fraudulent  enlistment."  C.  M.  O. 
28,  1910,  5. 

56.  Maluminse — "Fraudulent  Enlistment"  is  malum  in  se,  not  merely  malum  prohib- 

Hum.    See  FRAUDULENT  ENLISTMENT,  61. 

57.  Minor— Where  a  minor  during  the  lifetime  of  his  father  had  a  guardian  appointed  to 

sign  his  consent  papers  upon  enlistment,  and  the  father  demanded  the  boy's  release, 
on  the  ground  that  he  enlisted  without  his  consent,  it  was  held  that  the  department 
can  not  go  behind  the  action  of  the  court  to  inquire  into  the  legality  of  the  guardian's 
appointment,  and  that  the  enlistment  was  accordingly  valid.  File  3956,  Jan.  25, 1906. 
See  also  File  7657-207. 

58.  Same — The  accused  was  tried  upon  the  charge  of  "fraudulent  enlistment,"  the  speci- 

fication alleging  that  at  the  time  of  his  enlistment  he  falsely  stated  that  his  age  was 
over  18  years,  whereas  in  fact  it  was  about  14  years. 

The  accused  pleaded  guilty  to  the  charge  and  specification.  The  court  did  not 
accept  this  plea,  but  entered  a  plea  of  not  guilty  and  proceeded  with  the  trial.  For 
the  prosecution  there  was  introduced  ample  evidence  to  fully  sustain  all  the  allega- 
tions in  the  specification  and  the  charge,  and  the  accused  did  not  desire  to  introduce 
any  testimony  in  his  defense  nor  to  make  any  statement.  Notwithstanding  this,  the 
court  found  the  specification  not  proved  and  acquitted  the  accused  of  the  charge. 

It  appears  from  the  evidence  and  from  the  findings  thereon  that  the  ends  of  justice 
have  been  defeated  in  this  case;  and  inasmuch  as  habeas  corpus  proceedings  have  been 
instituted  in  the  civil  courts  looking  to  the  discharge  of  the  accused  because  of  his  being 
under  age  and  that  it  has  been  practically  decided  that  at  the  time  of  his  enlistment 
his  age  was  less  than  18  years,  and  that  he  should  be  discharged  from  the  service,  it 
is  not  considered  desirable  to  return  this  record  for  reconsideration  of  the  finding. 
The  proceedings,  findings,  and  acquittal  were  disapproved,  and  the  accused  was 
released  from  arrest  and  restored  to  duty.  C.  M.  O.  81,  1905. 

59.  Same-^Misrepresent  ing  age — In  the  case  of  a  minor,  who  was  awaiting  result  of  court- 

martial  for  desertion,  whose  parents  stated  that  when  he  enlisted  as  private  in  Marine 
Corps  he  was  under  leeal  age  of  enlistment;  that  he  misrepresented  his  age  in  order  to 
secure  enlistment;  and  parents  made  affidavit  that  such  was  the  case  and  produced 
a  birth  certificate  in  support  of  these  statements  and  requested  that  said  enlistment 
be  set  aside  and  the  man's  discharge  ordered,  the  Secretary  of  the  Navy  in  disap- 
proving the  request  stated  in  part:  "The  Federal  courts  have  repeatedly  decided  that 
a  person  who  fraudulently  enlists  in  the  military  service  can  not  set  up  his  fraud  as  a 
defense  when  held  by  court-martial  to  answer  for  military  offenses;  and  the  discharge 
of  the  man  under  such  circumstances  will  not  be  ordered  until  he  has  satisfied  the 
sentence  of  the  court-martial."  File  26251-9831:1,  Sec.  Navy,  Dec.  26,  1914;  C.  M.  O. 
6,  1915,  14. 

60.  Minor,  parents  divorced— The  accused  enlisted  as  an  apprentice,  third  class,  with 

consent  of  father,  after  his  mother  had  instituted  proceedings  apainst  said  father  for 
divorce  and  care  cr  custody  of  minor  child,  which  enlistment  was  held  to  be  illegal. 
File  9750-04.  See  in  this  connection  FRAUDULENT  ENLISTMENT,  59. 

61.  Moral  turpitude  Involved— Fraudulent  enlistment  is  an  offense  involving  moral  tur- 

pitude, for,  as  held  by  the  courts,  every  fraudulent  enlistment  includes  the  offense  of 
perjury,  and  that  is  a  crime  which  has  always  been  visited  with  most  serious  con- 
sequences by  the  civil  laws,  being  recognized  as  malum  in  se,  and  not  merely  malum 
prohibitum.  File  14535-1088. 

62.  Nolo  contendere.    See  NOLO  CONTENDERE. 

63.  Pay — In  cases  of  persons  not.in  naval  service  when  fraudulently  enlisting,  receipt  of  pay 

or  allowances,  etc.,  must  be  proved.    See  FRAUDULENT  ENLISTMENT,  3-8,  50. 

Proceed  hips,  findings,  and  sentence  disapproved  in  a  case  where  no  evidence  was 
introduced  to  prove  the  receipt  of  pay  or  allowances  by  accused  while  serving  under 
his  fraudulent  enlistment.  C.  M.  O.  37,  1909,  1. 

64.  Same— Pay  continues  after  conviction  of  fraudulent  enlistment  unless  forfeited  in 

whole  or  in  part  by  the  sentence.  File  26254-279.  See  also  FRAUDULENT  ENLIST- 
MENT, 66. 

65.  Same— Pay  actually  received  by  an  enlisted  man  for  services  during  a  fraudulent 

enlistment  can  not  be  recovered  from  him.    (12  Comp.  Dec.;  445.) 


FRAUDULENT    ENLISTMENT.  257 

66.  Pay  and  allowances — An  apprentice  seaman  discharged  for  fraudulent  enlistment 

Is  entitled  to  such  pay  as  he  may  have  received,  but  all  pay  and  allowances  accrued 
and  unpaid  at  the  time  of  the  discovery  of  the  fraud  shall  be  checked  as  forfeited. 
File  2792-01;  Comp.  Dec.;  Aug.  12,  1897.  See  also  FRAUDULENT  ENLISTMENT,  04. 

67.  Pay  and  allowances  not  received— Where  the  fraudulent  character  of  an  enlistment 

is  discovered  before  receipt  of  pay  and  allowances  thereunder  courts-martial  have 
no  jurisdiction,  and  the  man  (not  in  nival  service)  should  accordingly  be  "set  at 
large"  or  discharged  as  undesirable.  File  4061-03;  10031-03. 

68.  Pecuniary  allowance — Receipt  of  a  ''pecuniary"  not  necessary  as  "allowance"  of 

clothing  or  rations  is  sufficient.    See  FRAUDULENT  ENLISTMENT,  3. 

69.  Perjury— A.  private  in  the  Marine  Corps  who  was  discharged  on  habeas  corpus,  was 

arrested  upon  the  charge  Of  "perjury"  and  held  for  the  December  term  of  court. 
(File  5939-1);  prosecution  was  discontinued  because  of  hardship  to  mother.  (File 
5939-6;  HABEAS  CORPUS,  2.)  Fraudulent  enlistment  involves  perjury.  See  DE- 
SERTERS, 13;  FRAUDULENT  ENLISTMENT,  61. 

70.  Persons  not  In  naval  service— When  fraudulently  enlisting.    See  FRAUDULENT 

ENLISTMENT,  5, 50. 

71.  Prtma  facie  case  established.    C.  M.  0. 12, 1911,  4;  10, 1913,  3.    See  also  FRAUDULENT 

ENLISTMENT,  23, 27,  72. 

72.  Prima  facie  evidence— In  trial  for  fraudulent  enlistment  the  only  evidence  as  to  age 

was  the  sworn  statement  of  the  accused  in  the  enlistment  record  that  he  was  over  21, 
and  his  unsworn  admission  (made  to  a  chief  yeoman  who  was  directed  by  the  executive 
officer  to  take  the  statement  of  the  accused  "  as  to  his  alleged  fraudulent  enlistment " ) 
that  he  was  17  years  and  11  months.  The  court  found  the  specification  not  proved 
and  of  the  charge,  not  guilty.  The  department  held  that  the  court  erred  in  acquitting 
the  accused  and  disapproved  the  proceedings,  finding,  and  acquittal,  but  restored 
the  accused  to  duty.  C.  M.  0. 42, 1905.  Se'also  FRAUDULENT  ENLISTMENT,  23, 27, 72. 

73.  Prior  to  18!)3 — Not  possible  to  try  a  person  who  was  not  in  the  naval  service  when 

fraudulently  enlisting  for  "fraudulent  enlistment''  and  such  offenses  went  unpun- 
ished. C.  M.  O.  23,  1910.  See  also  FRAUDULENT  ENLISTMENT,  50. 

74.  Proof  of— See  FRAUDULENT  ENLISTMENT,  5.  50. 

75.  Ratification  of  fraudulent  enlistment— The  restoration  to  duty  of  a  man  operated  as 

a  ratification  of  his  fraudulent  enlistment— A  well-recognized  distinction,  however, 
exists  between  the  civil  aspect  of  a  contract  of  enlistment  and  the  liability  to  penalties 
attaching  by  law  upon  conviction,  where  the  contract  of  enlistment  is  fraudulent. 
(See  26  Op.  Atty.  Gen.,  239.  242;  File  2G251-1963:  1,  J.  A.  G.,  Aug.  17,  1910.  p  11.) 
Accordingly,  the  fact  that  the  man  was  restored  to  duty  could  not  bar  disciplinary 
proceedings  for  his  offense  in  fraudulently  enlisting  if  the  department  desires  to  bring 
him  to  trial  therefor.  File  26251-8539:1,  J.  A.  G.,  Jan.  21  and  24, 1914.  Seealso  FRAUD- 
ULENT ENLISTMENT,  41,  76;  PARDONS,  29. 

76.  Same— Accused  enlisted  as  a  landsman;  discharged  for  inaptitude;  fraudulently  en- 

listed as  an  apprentice  seaman;  tried  by  summary  court-martial  and  convicted  but 
not  discharged.  In  view  of  the  above, "by  retaining  accused  in  the  service  after  his 
conviction  by  summary  court-martial,  the  Government  acknowledged  and  accepted 
his  second  enlistment  as  a  valid  enlistment,  and  the  accused  is  serving  his  second 
enlistment  within  the  meaning  of  the  Act  of  Mar.  3, 1915  (38  Stat.  940) .  File  26837-7,. 
Sec.  Navy,  Jan.  15,  1916.  See  also  FRAUDULENT  ENLISTMENT,  91. 

77.  Ration  allowance — Sufficient.    See  FRAUDULENT  ENLISTMENT,  3. 

78.  Recruiting  officer  must  explain  law— By  General  Order  No.  410,  April  12,  1893, 

the  act  of  March  3, 1893  (27  Stat.  715),  making  punishable  fraudulent  enlistment  must 
be  read  and  explained  to  each  candidate  for  enlistment  by  the  recruiting  officer,  who 
must  satisfy  himself  that  the  candidate  understands  the  pro  visions  of  the  law.  (G.  O. 
410, 1893.) 

Section  11  of  Instructions  for  Recruiting  Officers  of  the  United  States  Navy  provides 
that  "each  recruit  *  *  *  shall  be  informed  that  if  he  has  had  previous  service 
the  fact  will  be  known  as  soon  as  the  papers  in  his  case  reach  the  Navy  Department 
and  that  he  will  be  tried  by  general  court-martial  for  fraudulent  enlistment  *  *  *  . 
The  recruit  will  also  be  informed  that  men  who  have  been  discharged  for  *  *  * 
disability  or  other  reasons  are  not  necessarily  forever  barred  from  reentering  the  service, 
but  that  an  official  request  to  be  permitted  to  reenlist  *  *  *  will  receive  con- 
sideration" and  that  "if  it  is  deemed  advisable  to  reenlist  him  it  will  be  authorized." 
Article  756,  (3)  United  States  Navy  Regulations,  provides  that  "no  one  who  has- 
already  been  in  the  naval  or  military  service  of  the  United  States  shall  be  enlisted 
without  showing  his  discharge  therefrom  *  *  *  ."  C.  M.  O.  12, 1911,  4. 


258  FRAUDULENT   ENLISTMENT. 

79.  Reenllstment— Of  man  guilty  of.    See  DESERTERS,  13, 14. 

80.  Restoration  to  duty.    See  FRAUDULENT  ENLISTMENT.  75. 

81.  Reviewing  authority— Stated  "aside  from  the  rule  universally  applicable  to  criminal 

prosecutions,  that  the  accused  is  entitled  to  the  benefit  of  a  doubt,  the  natural  heed- 
lessness  of  young  men  desiring  to  enlist  in  dealing  with  the  questions  of  their  age  is  a 
matter  which  must  necessarily,  in  some  degree,  influence  the  reviewing  authoritv." 
C.  M.  O.  76,  1899. 

82.  "Scandalous  conduct  tending  to  the  destruction  of  good  morals"— At  one 

time  "fraududlent  enlistment"  charged  as.    See  FRAUDULENT  ENLISTMENT,  14. 

83.  Sentence— Where  enlistments  in  both  Navy  and  Marine  Corps,  the  following  form  will 

boused: 

"The  court  therefore  sentences  the  said ,  ordinary  seaman,  United  States 

Navy,  alias ,  private,  United  States  Marine  Corps,  to  be  confined  in  such  place 

as  the  convening  authority  may  designate  for  a  period  of (— )  years  and  — 

( — )  months;  then  to  be  dishonorably  discharged  from  the  United  States  naval  service; 
to  perform  hard  labor  during  said  confinement  and,  after  his  accrued  pay  and  allow- 
ances shall  haye  discharged  his  indebtedness  to  the  United  States  at  the  date  of 
approval  of  this  sentence,  to  forfeit  all  pay  and  allowances  that  may  become  due 
him  except  the  sum  of  three  dollars  ($3)  per  month  during  said  confinement  for 
necessary  prison  expenses  and  a  further  sum  of  twenty  dollars  (920)  to  be  paid  him 
when  discharged  from  the  service  pursuant  to  this  sentence."  C.  M.  O.  25,  1914,  (i: 
29, 1914,  7.  C.  M.  0. 49, 1910, 12;  16, 1913, 4,  overruled.  Note:  See  R-816  as  amended. 
See  also  C.  M.  O.  47, 1901,  2;  SENTENCES,  49. 

84.  Same— Should  include  dishonorable  discharge^  For  several  years  it  has  been  the 

almost  invariable  rule  for  general  courts-martial  to  include  dishonorable  discharge 
in  the  sentence  of  an  accused  convicted  of "  Fraudulent  enlistment."  In  view  of  this 
fact  the  department  considers  that  a  departure  from  this  long  established  custom  is, 
in  effect,  the  granting  of  clemency,  a  function  that  is  denied  a  courtrinartial  by  law. 
C.  M.  O.  14,  1910,  7;  17,  1910,  7;  22,  1913,  4.  See  also  C.  M.  O.  102,  1893;  ARMY,  10; 
FRAUDULENT  ENLISTMENT,  40. 

85.  Same — The  dishonorable  discharge  adjudged  on  conviction  of "  Fraudulent  enlistment" 

should  read  from  the  "United  States  Naval  Service"  if  enlistments  In  both  Navy 
and  Marine  Corps,  and  loss  of  both  pay  and  allowances  should  be  adjudged.  C.  M.  O. 
55.  1910,  6-7;  15,  1910,  8;  5,  1912.  14;  25,  1914,  6;  29, 1914, 7.  C.  M.  0. 16,  1913,  4,  over- 
ruled. See  also  FRAUDULENT  ENLISTMENT,  83. 

86.  Same— Men  who  conceal  a  dishonorable  discharge  from  Army  should  be  discharged. 

See  ARM  r,  10. 

87.  Statute  of  Limitations — The  receipt  of  pay  and  allowances  is  not  in  itself  an  offense 

but  becomes  so  only  in  consequences  of  ''Fraudulent  enlistment,"  and  where  the 
"Fraudulent  enlistment"  was  committed  more  than  two  years  since,  it  is  barred 
from  prosecution.  File  5256-04. 

88.  Same— The  specification  under  a  charge  of  "Fraudulent  enlistment"  preferred  by  a 

fleet  convening  authority  alleged  that  the  accused  enlisted  on  September  20,  1&15, 
procuring  such  enlistment  by  concealing  from  the  recruiting  officer  that  "he  had  on 
or  about  the  twenty-second  day  of  October,  nineteen  hundred  and  six,  deserted  from 
the  United  State  Navy"  but  did  not  allege  that  the  accused  had  since  received  pay 
or  allowances  under  this  fraudulent  enlistment.  The  accused  in  this  case  was  first 
enlisted  on  August  30,  1906,  for  four  years  until  August  29,  1910.  This  enlistment, 
therefore,  had  expired  five  years  before  the  alleged  fraudulent  enlistment  and,  more- 
over, the  statute  of  limitations  could  be  pleaded  by  him  in  defense  of  his  desertion 
of  October  22, 1906.  In  view  of  the  fact  of  the  expiration  of  his  former  enlistment,  and 
of  the  fact  that  he  is  no  longer  amenable  to  trial  for  "  Desertion,"  it  was  necessary  to 
allege  the  receipt  of  pay  or  allowances  in  order  to  constitute  the  offense  of  "Fraudu- 
lent enlistment"  in  this  case.  Therefore,  the  specification  is  fatally  defective,  and 
accordingly  the  findings  and  sentence  were  set  aside.  File  26262-2585,  J.  A.  G., 
June  8, 1916,  approved  by  Sec.  Navy,  June  30, 1916;  G.  M.  C.  Rec.  32175.  See  also  C. 
M.  O.  17, 1916;  31, 1910,  5;  FRAUDULENT  ENLISTMENT,  5. 

89.  Same — The  continued  receipt  of  pay  and  allowances  under  "Fraudulent  enlistment" 

does  not  bring  such  act  within  the  rule  respecting  a  continuing  offense.  The  offense 
is  completed  by  the  receipt  of  any  pay  and  allowances,  from  which  time  the  Statute 
of  Limitations  commences  to  run.  File  1551-04. 

90.  Same— It  is  not  the  po)  icy  of  the  department  to  try  a  man  for  "  Fraudulent  enlistment " 

unless  the  prosecution  is  prepared  to  prove  that  he  was  not  amenable  to  justice  within 
a  period  of  two  years  after  commission  of  that  offense,  by  reason  of  having  absented 
himself  or  some  other  manifest  impediment.  C.  M.  O.  31, 1910,  5. 


FRAUDULENT    ENLISTMENT  259 

91.  Summary  court-martial— Accused  should  not  be  tried  by  summary  court-martial 

for  "Fraudulent  enlistment."  See  File  20524-123.  (G.  O.  110,  p.  5,  overruled.) 
But  fee  File  26837-7,  Sec.  Navy,  Jan.  15, 1916;  FRAUDULENT  ENLISTMENT.  76. 

92.  Voidable,  not  void— A  fraudulent  enlistment  is  not  void  but  merely  voidable.    (In 

re  Morrissey,  137  U.  S.  157;  In  re  Grimley,  137  IT.  S.  147.)  Ffle  26837-7,  Sec.  Navy, 
Jan.  15, 1916.  See  also  FRAUDULENT  ENLISTMENT,  22. 

93.  Same — An  enlistment  fraudulently  made  may  be  voidable,  but  it  is  not  necessarily  void 

until  so  pronounced  by  competent  authority.  (In  re  Morrissey,  137  U.  S.  157.)  C.  M. 
0. 102, 1S93,  2.  See  also  FRAUDULENT  ENLISTMENT,  22. 

94.  Waiver  of— If  the  department  waives  fraudulent  enlistment  upon  knowledge,  such 

enlistment  becomes  legal,  and  man  is  entitled  to  pay,  etc.    14  Comp.  Dec.  267. 

95.  Same — Fraudulent  enlistment  is  voidable  and  may  be  avoided  only  by  the  Govern- 

ment by  any  act  clearly  expressing  such  intention  to  avoid.  Until  such  act  a  person 
fraudulently  enl  isting  may  be  held.  File  10031-03. 

"FREEZE."    See  C.  M.  O.  41,  1915,  6. 

FUGITIVE  FROM  JUSTICE. 

1.  Discharged  as  undesirable — And  delivered  to  civil  authorities.    See  Cnm.  AUTHORI- 

TIES, 12;  CONVICTS,  2. 

2.  Enlisted,  not  to  be.    File  2C524-207,  J.  A.  G.,  Nov.  20,  1915,  Nov.  22,  1915. 

3.  Warned  by  recruiting  officers — Many  fugitives  from  justice  who  endeavor  to  find 

asylum  in  the  Navy,  would  not  enlist  if  they  were  sure  of  detection.  Accordinglv 
suggested  that  in  the  instructions  for  recruiting  officers,  directions  be  given  that  all 
applicants  for  enlistment  be  emphatically  informed  of  the  department's  policy,  and 
further  that  if  their  purpose  in  enlisting_  is  to  attempt  to  evade  the  consequences 
of  some  crime  or  other  misconduct  for  which  they  are  answerable  to  the  civil  authori- 
ties, they  will  promptly  be  surrendered  to  the  proper  civil  authorities  for  trial,  and 
that  their  enlistment  in  the  Navy  will  not  afford  them  any  protection  or  exemption 
from  prosecution,  but  on  the  contrary  the  department  will  assist  in  their  identifica- 
tion and  immediate  surrender  to  the  proper  civil  authorities  for  trial. 

FULL  POWER  TRIAL. 

1.  Boilers— Exploded.    C.  M.  O.  36,  1915;  37,  1915;    38,  1915. 

FULLY  ACQUIT.    See  ACQUITTAL,  15. 

FUNERAL  EXPENSES. 

1.  Enlisted  man— Payment  of  by  family.    See  DEATH  GRATUITY,  21. 

FURLOUGH. 

1.  Enlisted  men — Duty  to  notify  commanding  officer  of  change  of  address.  See  ADDRESS,  2. 

2.  Officer— May  be  placed  on  furlough  bv  Secretary  of  the  Navy  (R.  S.  1442)— Officer  would 

receive  half  pav  (R.  S.  1557).    C.  M.  O.  49. 1915,  27.    See  also  OFFICERS,  106. 

3.  Without  pay — The  Supreme  Court  has  held  that  an  officer  who  may  be  dismissed 

absolutely,  may  be  fiirlousrhed  without  pay,  which  is  the  effect  of  a  partial  dismissal, 
and  in  some  cases  is  in  favor  of  the  officer" who  might  otherwise  be  removed.  (U.  S. 
v.  Murray,  100  U.  S.  536.  See  also  11  Compt.  Dec.  560).  File  27231-47,  J.  A.  G.,  Aug. 
20,  1915. ' 

4.  Same— Enlisted  men  of  Marine  Corps—  Act  of  Aug.  29,  1916  (39  Stat.  580)  applies  to 

Marine  Corps.    File  7657-402. 

GAMBLING. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  6,  1915,  3. 

2.  With  human  lives— And  Government  property.    C.  M.  O.  37,  1915,  8. 

GARRISON. 

1.  Confinement— To  limits  of  garrison.    See  CONFINEMENT,  8,  15, 19;  RESTRICTION. 

GAS  BUOY. 

1.  Navigation— Aid  to.    C.  M.  O.  2,  1915:  3,  1915. 

GENDARMERIE  OF  HAITI. 

1.  Officers  of  the  United  States— Are  not  prohibited  from  rendering  a  friendly  service 
to  Haiti,  such  as  assisting  to  organize  a  gendarmerie.  See  OFFICERS  OF  THE  UNITED 
STATES,  1. 


260  GENERAL   ORDER    NO.    110. 

GENERAL  COURTS-MARTIAL.    See  COURT. 

GENERAL  COURTS-MARTIAL  OF  A  STATE. 

1.  Officers  and  enlisted  men  of  naval  service — Appearing  as  witnesses  before.  See 
GENERAL  ORDER  No.  121,  Sept.  17, 1914, 23. 

GENERAL  EFFICIENCY. 

1.  Candidate— For  promotion  in  Marine  Corps.    See  PROMOTION,  72. 

GENERAL  ISSUE.    See  ARRAIGNMENT,  7;  WORDS  AND  PHRASES. 
GENERAL  INTENT.    See  ASSAULT,  15;  INTENT,  49. 

GENERAL  OF  THE  ARMY. 

1.  Retirement  of— Laws  relating  to.    14  J.  A.  G.  287. 

GENERAL  ORDERS. 

1.  Army— A  general  order  of  Headquarters  of  the  Department  of  California,  U.  S.  Army, 

is  such  a  document  as  may  properly  be  admitted  in  evidence  for  certain  purposes. 
See  ARMY,  14. 

2.  Evidence,  as.    See  ARMY,  14;  GENERAL  ORDERS,  1. 

3.  Legality  of  provisions  and  requirements  in— Should  the  legality  of  a  General  Order 

issued  by  the  Secretary  of  the  Navy  be  raised  by  the  defense,  for  violation  of  which  he 
is  on  trial,  the  court,  if  in  doubt,  should  submit,  it  to  the  department  for  decision  it 
being  a  question  of  law.  [Navy  Regulations,  1913,  R-850.1  But  it  is  to  be  presumed 
that  the  legality  of  any  order  issued  as  above  would  be  fully  inquired  into  by  the  de- 
partment before  the  issuance  thereof.  File  28019-25,  Mar.  29,  1912. 

4.  No.  77.    See  GENERAL  ORDER  No.  77,  FEBRUARY  25, 1914. 

5.  No.  1OO.    See  GENERAL  ORDER  No.  100,  JUNE  5,  1914. 

6.  No.  11O.    See  GENERAL  ORDER  No.  110,  JULY  27,  1914. 

7.  No.  121.   See  GENERAL  ORDER  No.  121,  SEPTEMBER  17,  1914. 

8.  No.  15O.    See  GENERAL  ORDER  No.  150,  JUNE  14, 1915. 

GENERAL  ORDER  NO.  77,  FEBRUARY  25,  1914. 

1.  Naval  Militia— This  general  order  is  merely  a  publication  of  the  act  of  February  16, 1914 
(38  Stat.  283),  "to  promote  theefficiency  of  the  Naval  Militia  and,  for  other  purposes." 
C.  M.  O.  49,  1915,  17;  File  26251-10968:6,  Sec.  Navy,  Nov.  6,  1915;  G.  C.  M.Rec.  31331. 

GENERAL  ORDER  NO.  1OO,  JUNE  15,  1914. 

1.  Construed— Diseases  contracted  during  unauthorized  absence  from  station  are  not 
necessarily  due  to  misconduct,  notwithstanding  that  unauthorized  absence  is  of  itself 
ordinarily  an  act  of  misconduct.  In  such  cases  it  remains  to  be  determined  whether 
the  unauthorized  absence  from  station  was  the  natural  and  proximate  cause  of  the 
disease  and  if  so,  whether  it  is  on  account  of  such  disease  the  absence  from  duty  is 
occasioned.  File  7657-284,  Sec.  Navy,  Mar.  19,  1915;  C.  M.  O.  27,  1915,  8.  See  also 
File  7657-394:3,  Sec.  Navy,  October,  1916;  ENLISTMENTS,  11;  MARINE  CORPS,  30. 

GENERAL  ORDER  NO.  110,  JULY  27,    1914.    See  also  General   Order  No.   110 
(Revised  July,  1916). 

1.  Amendment  to  page  7,  par.  9.    C.  M.  O.  36,  1914,  3,  4. 

2.  Bad-conduct  discharge — Attention  is  called  to  the  fact  that  the  requirements  of 

Navy  Regulations,  1913,  R-622  (7),  must  be  carried  out,  even  when  the  convening 
authority  remits  that  part  of  a  summary  court-martial  sentence  involving  bad-conduct 
discharge  on  condition  that  the  accused  maintain  a  record  satisfactory  to  his  com- 
manding officer  during  a  specified  time,  as  authorized  by  General  Order  No.  110. 
"In  every  case  where  a  sentence  involving  bad-conduct  discharge  has  been  imposed, 
it  shall  be  the  duty  of  the  otticer  ordering  the  court,  before  acting  vpon  the  proceedings, 
to  spread  upon  the  record  a  brief  synopsis  of  the  service  of  the  person  tried  and  of  the 
offenses  committed  by  him  during  his  current  enlistment. 'f  (Navy  Regulations, 
1913.  R-622  (7);  Forms  of  Procedure,  1910,  p.  164:  C.  M.  O.  1,  1914,  p.  4.)  C.  M.  O. 
36,  1914,  4.  See  alto  BAD-CONDUCT  DISCHARGE,  10. 

3.  Convening  authority,  form  of  action  for— The  following  forms  of  action  will  be  used 

by  the  convening  authority  in  cases  intended  to  be  governed  by  article  4893,  Naval 
Instructions,  1913.  or  General  Order  No.  110: 

If  the  sentence  involves  only  loss  of  pay,  the  convening  authority  will  use  the  form 
of  approval  given  in  article  4893  (1),  Naval  Instructions,  1913. 


GENERAL   ORDER    NO.    110.  261 

If  the  sentence  involves  loss  of  pay  and  discharge,  the  convening  authority  will  use 
the  following  form  of  approval: 

"The  proceedings  (findings)  and  sentence  in  the  foregoing  case  of  *  *  *  are  ap- 
proved. That  portion  of  the  sentence  which  involves  *  *  *  discharge  is  remitted, 
on  condition  that  the  accused  maintain  a  record  satisfactory  to  his  commanding 
officer,  during  a  period  of  *  *  *  months.  That  portion  of  the  sentence  involving 
loss  of  pay  is  remitted  subject  to  the  conditions  specified  in  article  4893,  Naval 
Instructions.  1913." 

(The  word  "findings"  is  used  only  in  actions  on  records  of  general  courts-martial.) 

The  senior  officer  present,  in  approving  summary  court-martial  cases  acted  upon 
in  accordance  with  these  instructions,  will  use  the  form  given  in  Forms  of  Procedure, 
p.  165,  var.  1.  C.  M.  O.  36,  1914,  475. 

General  Order  No.  110  was  revised  in  July,  1916,  and  promulgated  the  following 
forms  of  action  for  convening  authorities  as  substitutes  for  those  published  above: 

When  sentences  adjudged  by  deck  courts  and  courts-martial  are  to  be  executed  in 
accordance  with  the  provisions  of  this  order,  the  following  action  will  be  placed  on 
the  record  by  the  reviewing  or  convening  authority: 

Deck  courts.— "The  sentence  is  approved  and  the  accused  informed  this  day:  that 
portion  of  the  sentence  involving  loss  of  pay  is  remitted  subject  to  the  conditions 
specified  in  article  4893,  Naval  Instructions,  1913." 

Summary  courts-martial.— "The  proceedings,  findings,  and  sentence  in  the  fore- 
going case  of  *  *  *  are  approved.  The  bad  conduct  discharge  is  remitted  on 
condition  that  *  *  *  during  a  period  of  *  *  *  months  conducts  himself  in 
such  a  manner  as  in  the  opinion  of  his  commanding  officer  warrants  his  further  re- 
tention in  the  service;  otherwise  the  bad  conduct  discharge  will  be  executed  at  the 
discretion  of  his  commanding  officer  at  any  time  during  said  period.  The  loss  of 
pay  (is  reduced  to  the  lo_ss  of  *  *  *  and  as  thus  reduced)  is  remitted  subject  to 
the  conditions  specified  in  article  4893,  Naval  Instructions,  1913." 

General  courts-martial.— The  proceedings,  findings,  and  sentence  in  the  foregoing 
case  of  *  *  *  are  approved;  that  portion  of  the  sentence  which  involves  confiner 
merit  is  remitted;  the  dishonorable  discharge  is  remitted  on  condition  that  *  *  * 
during  a  period  of  *  *  *  conducts  himself  in  such  a  manner  as  in  the  opinion  of 
his  commanding  officer  warrants  his  further  retention  in  the  service;  otherwise  he 
will  be  dishonorably  discharged  at  the  discretion  o  f  his  commanding  officer  at  any  time 
during  said  period.  The  loss  of  pay  (and  allowances)  (is  reduced  to  the  loss  of  *  *  * 
and  as  thus  reduced)  is  remitted  subject  to  the  conditions  specified  in  article  4893 
Naval  Instructions,  1913."  (G.  O.  110,  Revised,  pp.  4-5.) 

4.  Same—It  was  noted  that  the  action  of  the  convening  authority  as  convening  authority 

remitted  the  loss  of  pay  in  accordance  with  1-4893,  and  that  his  action  as  senior  officer 
present  stated  that  the  portion  of  the  sentence  Involving  bad-conduct  discharge 
will  be  carried  into  effect  at  any  time  within  six  months  at  the  discretion  of  the  com- 
manding officer  of  the  vessel  or  station  to  which  he  may  be  attached:  thus  it  will  be 
seen  that  the  discharge  adjudged  was  not  remitted  and  from  the  action  taken  it  will 
be  carried  into  effect  at  some  time  within  the  period  of  six  months,  unless  the  sentence 
is  further  mitigated  by  the  Secretary  of  the  Navy. 

If  it  was  the  intention  of  the  convening  officer  and  senior  officer  present  to  remit 
the  bad-conduct  discharge  on  condition  that  the  accused  maintain  a  record  satis- 
factory to  his  commanding  officer,  during  a  period  of  six  months,  as  provided  in 
General  Order  No.  110,  the  form  of  action  prescribed  on  pages  4  and  5,  Court-Martial 
Order  No.  36, 1914, should  have  been  used.  File  26287-2869,  Sec.  Navy,  Mar.  18, 1915; 
26287-2892,  Sec.  Navy,  Mar.  23. 1915;  C.  M.  0. 12, 1915, 5.  But  seeG.O. 110 (Revised). 

5.  Same — A  man  sentenced  to  bad-conduct  discharge  by  summary  court-martial  should 

not  be  placed  on  probation  for  a  period  extending  over  the  expiration  of  his  enlistment. 
(C.  M.  0. 12, 1915,  p.  6.)  Should  a  man  have  less  than  six  months  yet  to  serve  on  his 
current  enlistment  it  would  be  appropriate  for  the  convening  authority  to  word  his 
action  as  follows:  "The proceedings,  findings, and  sentence  in  the  foregoing  case  of 
*  *  *  are  approved.  That  portion  of  the  sentence  which  involves  cad-conduct 
discharge  is  remitted,  on  condition  that  the  accused  maintain  a  record  satisfactory 
to  his  commanding  officer,  during  the  balance  of  his  current  enlistment  which 
expires  *  *  *  ".  (See  for  example,  S.  C.  M.  Rec.  No.  03970  of  Victor  R.  Hagberg, 
private,  U.  S.  M.  C.,  tried  May  25,  1915,  at  Marine  Barracks,  Navy  Yard,  Boston, 
Mass.,  File  26287-3110;  S.  C.  M.  Rec.  No.  05186  of  William  L.  McEuen,  private,  U. 
S.  M.  C..  tried  June  4  ,1915,  at  Marine  Barracks,  Navy  Yard,  Philadelphia,  Pa.,  File 
26287-3000)  C.M.  O.  22, 1915,  5. 


262 


GENERAL    ORDER    NO.   110. 


6.  Discharge  by  purchase.    See  GENERAL  ORDER  No.  110,  JULY  27,  1914, 18. 

7.  Expiration  of  enlistment  of  accused  during  probationary  period— Accused 

was  sentenced  to  loss  of  pay  and  bad-conduct  discharge  by  summary  court-martial. 
Convening  authority  remitted  so  much  of  the  sentence  as  related  to  loss  of  pay  in 
accordance  with  1-4893  and  remitted  the  bad-conduct  discharge  conditionally  under 
the  provisions  of  General  Order  No.  110.  It  appeared  from  the  enlistment  record  of 
the  accused  that  his  enlistment  would  expire  before  the  probationary  period  ended. 
Held,  Accused  should  receive  a  discharge  upon  expiration  of  enlistment  commensurate 
with  his  conduct  during  the  total  period  of  enlistment  and  the  character  of  his  dis- 
charge will  determine  the  amount  of  pay  which  he  will  receive  from  pay  deducted 
during  his  enlistment  as  provided  in  1-4893. 

Convening  authorities  in  their  actions  on  court-martial  records  should  not  place 
the  accused  on  probation  for  periods  extending  beyond  the  expiration  of  enlistments. 
Where  this  is  done,  however,  this  action  should  not  operate  against  the  probationer, 
and  if  his  conduct  is  satisfactory  up  to  date  of  expiration  of  enlistment,  he  should 
receive  the  same  benefits  as  though  his  probationary  period  had  been  completed  and 
his  discharge  effected  thereafter.  File  26287-2864,  Sec.  Navy,  Mar.  19, 1915;  C.  M.  O. 
12,  1915,  6. 

8.  Finding— A  finding  of  "  Guilty  in  a  less  degree  than  charged,  guilty  of  unauthorized 

absence"  is  incorrect.    C.  M.  O.  53,  1914,  6.    See  also  FINDINGS,  2. 

9.  Forms  of  action — For  convening  authorities.    See  GENERAL  ORDER  No.  110,  JULY  27, 

1914  3-5,  7. 

10.  Fraudulent   enlistment— Schedule   of  punishments   provides   that   "Fraudulent 

enlistment"  may  be  tried  by  summary  court-martial,  but  General  Order  No.  110 
(Revised)  does  not.  See  FRAUDULENT  ENLISTMENT,  47,  91. 

11.  Liberty,  extension  of — In  this  connection  the  attention  of  the  court  is  invited  to  the 

following  provisions  of  General  Order  No.  110,  July  27, 1914,  which  are  enforced  in  the 
cases  of  enlisted  men:  If  no  reply  is  received  they  are  not  justified  in  assuming  that  their 
requests  are  granted  merely  because  they  telegraphed  or  wrote,  but,  on  the  contrary, 
the  failure  to  receive  positive  -permission  to  remain  absent  renders  it  essential  for  them 
to  return  at  once.  (G.  O.  110,  p.  7.)  C.  M.  O.  25,  1915,  2. 

12.  Liberty  or  leave  of  absence^-In  ascertaining  the  date  of  expiration  of  liberty  or  leave 

granted  to  officers  and  enlisted  men,  the  burden  of  ascertaining  the  proper  time  of 
the  expiration  of  such  leave  is  entirely  upon  the  individual  and  the  department  has 
from  time  to  time  directed  that  enlisted  men  be  carefully  instructed  that  absence 
through  failure  to  ascertain  the  time  of  expiration  of  liberty  was  wholly  at  the  risk 
and  peril  of  the  individual.  In  a  recent  order  (G.  O.  110,  July  27, 1914)  the  following 
instructions  were  issued  upon  this  subject.  "They  [enlisted  men]  will  be  fully 
instructed  that  they  are  responsible  for  informing  themselves  as  to  the  expiration 
of  liberty,  boat  hours,  train  schedules,  etc.,  and  that  ignorance  thereof  is  not  an 
excuse."  C.  M.  O.  23,  1915,  1-2. 

13.  Marine— Reenlisted.    See  GENERAL  ORDER  No.  110,  JULY  27, 1914. 19. 

14.  Officers— Principles  of  General  Order  No.  110  generally  applicable  to.    C.  M.  O.  23, 

1915,  2;  25, 1915,  2.    See  also  GENERAL  ORDER  No.  110,  JULY  27,  1914, 11, 12. 

15.  Probationary  feature— The  probationary  feature  of  General  Order  No.  110  is  superior 

to  the  former  detention  system,  both  on  account  of  the  increased  number  of  men 
reclaimed  thereby,  the  vast  reduction  in  expenditures  necessary  for  the  operation 
of  the  system,  and  for  the  humanitarian  reason  that  it  avoids  unnecessary  imprison- 
ment of  young  men  guilty  of  military  offenses.  File  5087-126,  J.  A.  G.,  Sept.  30, 1915. 

16.  Probationary  period— Offense  during — When  a  man  is  serving  a  sentence  which  has 

been  mitigated  pursuant  to  the  provisions  of  General  Order  No.  110  or  article  4893, 
Naval  Instructions,  1913,  and  commits  an  offense  of  such  a  serious  nature  that  his 
commanding  officer  decides  should  receive  a  more  severe  punishment  than  would  be 
the  case  if  he  merely  terminated  the  probation  and  allowed  the  unexecuted  part  of 
the  sentence  to  be  carried  into  effect,  he  may  either  order  the  man's  trial  by  summary 
court-martial  or  recommend'his  trial  by  general  court-martial.  In  cases  of  this  char- 
acter the  department  desires  that  the  man  be  required  to  serve  both  the  original  sen- 
tence and  such  additional  sentence  as  may  be  imposed  for  the  last  offense. 

Where  the  man's  original  sentence  included  discharge  from  the  service  which  had 
been  conditionally  remitted  subject  to  the  provisions  of  General  Order  No.  110,  if  he 
is  subsequently  sentenced  to  a  period  of  confinement  and  discharge  for  an  offense  com- 
mitted while  on  probation,  the  Secretary  of  the  Navy  will  remit  the  former  discharge 
in  order  to  permit  execution  of  the  last  sentence.  C.  M.  O.  42, 1914,  5.  But  see  Gen- 
eral Order  No.  110  (Revised,  July,  1916). 


GENERAL  ORDER   NO.  110.  263 

17.  Same— Discharge  during  probationary  period    See  GENERAL  OEDEE  No.  110,  JULY 

27,  1914,  7. 

18.  Purchase— An  enlisted  man  of  the  Navy  was  sentenced  by  summary  court-martial  to 

loss  of  pay  and  bad-conduct  discharge,  the  former  being  remitted  subject  to  the  condi- 
tions specified  in  article  4893,  Naval  Instructions,  1913,  and  the  latter  remitted  on 
condition  that  the  accused  maintain  a  record  satisfactory  to  his  commanding  officer 
during  a  specified  period.  [Provisions  of  G.  O.  110.]  The  accused  successfully  com- 
pleted his  probationary  period,  at  which  time  the  entire  loss  of  pay  adjudged  in  his 
case  had  been  "deducted."  Thereafter  he  received  a  discharge  by  "purchase." 
Held,  That  the  total  amount  of  pay  which  had  been  "deducted"  during  his  enlist- 
ment, in  accordance  with  the  provisions  of  1-4893,  should  be  "credited"  to  the  ac- 
cused's account  at  date  of  discharge;  and  since,  as  he  was  discharged  at  his  own 
request  and  for  his  own  convenience,  he  received  an  "ordinary  discharge"  (Navy 
Regulations,  1913,  R-3608  (b),)  his  account  should  be  "checked"  one-half  the  total 
amount  of  pay  "deducted"  and  conditionally  remitted  in  accordance  with  1-4893. 
File  26287-2971,  Sec.  Navy,  May  27, 1915;  C.  M:  O.  20,  1915,  5. 

19.  Reenlisted  marine — Held,  That,  in  view  of  the  unambiguous  phraseology  of  General 

Order  110  in  which  the  words  "reenlisted  marine"  are  used,  a  soldier  w_ho  enlists  in 
the  Marine  Corps  for  the  first  time,  upon  the  termination  of  an  enl  istment  in  the  Army , 
is  not  to  be  regarded  as  a  reenlisted  man  within  the  purview  of  said  General  Order. 
File  2651G- 144:53,  Sec.  Navy,  Apr.  12,  1916;  C.  M.  O.  13,  1916,  8. 

20.  Schedule  of  punishments — Should  be  followed  where  practicable — The  accused 

was  tried  by  general  court-martial  by  order  of  the  Secretary  of  the  Navy,  at  the  navy 
yard,  New  York,  on  the  charge  of  "Desertion."  lie  pleaded  "not  guilty."  The 
court  found  him  "  Guilty  in  a  less  degree  than  charged,  guilty  of  absence  from  station 
and  duty  after  leave  had  expired,"  and  sentenced  him  to  be  confined  at  hard  labor  for 
three  months,  with  corresponding  forfeiture  of  pay  and  allowances,  and  to  be  dis- 
charged with  a  bad-conduct  discharge. 

In  view  of  the  fact  that  this  man  remained  in  unauthorized  absence  for  nineteen 
days,  the  department  does  not  consider  the  sentence  adjudged  in  his  case  an  adequate 
or  appropriate  one.  General  Order  No.  110  prescribes  a  schedule  of  punishments 
for  desertion  and  unauthorized  absence,  and  in  that  schedule  it  is  expressly  suggested 
that  in  all  cases  of  unauthorized  absence  over  ten  days  a  dishonorable  discharge 
should  be  a  portion  of  the  sentence  adjudged. 

However,  two  of  the  six  members  of  the  court  before  which  this  man  was  tried  have 
been  relieved  from  duty  on  the  court  and  the  original  membership  reduced  below 
the  five  required  to  be  present  in  acting  upon  a  case  in  revision,  and  it  is,  therefore, 
impracticable  to  return  the  record  to  .the  court  for  a  reconsideration  of  its  sentence. 
File  26251-11322,  Sec.  Navy,  Dec.  16,  1915;  G.  C.  M.  Rec.  No.  31401;  C.  M.  O.  49,  1915, 
11-12.  See  also  BAD-CONDUCT  DISCHARGE,  6. 

21.  Senior  officer  present — The  senior  officer  present,  in  approving  summary  court- 

martial  cases  acted  upon  in  accordance  with  the  instructions  contained  in  paragraph 
3  of  this  heading,  will  use  theform  given  in  Forms  of  Procedure,  p.  165,  var.l.  C.M.O. 
36,  1914,  5. 

22.  Sentence — It  frequently  happens  that  the  court  directs  that  a  sentence  be  recorded 

in  the  following  form: 

"To  be  discharged  from  the  service  with  a  bad-conduct  discharge,  the  bad-conduct 
discharge  to  be  executed  at  the  discretion  of  the  commanding  officer  at  any  time  within 
six  months." 

The  court  should  not  prescribe  in  its  sentence  how  or  when  such  sentence  shall  be 
executed.  Such  matters  are  properly  within  the  province  of  the  convening  authority. 

The  following  form  of  sentence  should  be  used  by  the  court  in  recording  sentences 
adjudged  in  accordance  with  the  provisions  of  General  Order  No.  110: 

"To  lose  pay  amounting  to ( )  dollars  and  —  —  ( )  cents,  and  to  be 

discharged  from  the  naval  service  with  a  bad-conduct  (dishonorable)  discharge." 

( Dishonorable  discharge,  of  course,  can  only  be  adjudged  by  a  general  court-martial. ) 
C.  M.  O.  36,  1914,  4. 

23.  Same— The  accused  was  tried  by  general  court-martial,  pleaded  "guilty"  to  "deser- 

tion" and  was  sentenced  to  lose  pay  amounting  to  ninety  dollars  and  to  be  dishonor- 
ably discharged  from  the  United  States  Marine  Corps. 

The  accused  in  this  case  remained  in  desertion  until  apprehended  by  the  civil 
authorities  and  forcibly  returned  to  the  naval  authorities. 

General  Order  No.  110,  page  5,  provides  that  if  a  man  in  desertion  is  delivered  by 
the  civil  authorities  he  should  be  tried  by  general  court-martial  and  sentenced  to  im- 


264  GENERAL  ORDER   NO.   110. 

prisonment  to  a  naval  prison.  This  general  order  also  provides  that  nothing  in  the 
schedule  will  be  construed  to  limit  the  discretionary  power  vested  in  general  courts- 
martial,  summary  courts-martial,  and  deck  courts,  but  that  it  should  be  followed  to 
secure  uniformity  (page  2). 

It  therefore  follows  that  this  sentence  is  both  inadequate  and  contrary  to  the  system 
of  discipline  which  it  was  intended  to  establish  in  General  Order  No.  110. 

General  Order  No.  110  is  based  on  the  theory  that  men  who  surrender  desire  to  re- 
establish themselves  to  the  naval  service  and  earn  an  honorable  discharge;  to  the  case 
of  a  man  who  is  apprehended ,  no  such  presumption  exists,  and  as  this  man  was  forcibly 
returned  to  naval  jurisdiction  there  is  no  good  reason  to  believe  that  he  will  not  desert 
again  upon  the  first  opportunity.  For  this  reason  General  Order  No.  110  provides  that 
to  such  cases  the  man  should  receive  a  sentence  which  includes  confinement.  The 
court  in  this  case  having  been  reconvened  to  reconsider  its  sentence  revoked  its  former 
sentence  and  adjudged  one  which  was  adequate.  File  26251-10365,  Sec.  Navy,  March 
30, 1915;  G.  C.  M.  Rec.  No.  30347;  C.  M.  0. 12, 1915,  6-7.  See  also  File  26251-10363. 

GENERAL  ORDER  NO.  121,  SEPTEMBER  17,  1914. 

1.  Action  where  men  convicted  by  civil  authorities— In  cases  to  which  men  delivered 
to  the  civil  authorities  for  trial  are  convicted,  the  commanding  officer  will  make  full 
report  of  the  offense  and  sentence  to  the  Bureau  of  Navigation  or  the  Commandant 
of  the  Marine  Corps,  as  the  case  may  be,  with  recommendation  as  to  whether  the  man 
should  be  discharged  as  undesirable.  (File  1579-03,  Feb.  14, 1903,  and  June  11,  1903.) 

Form  of  agreement  as  to  expenses. 

The  following  is  suggested  as  a  form  of  agreement  acceptable  to  the  department  in 
cases  referred  to  in  paragraph  9: 

"  In  consideration  of  the  delivery  of ,  United 

States  Navy  (or  United  States  Marine  Corps),  to ,  at 

,  for  trial  upon  the  charge  of 

,  I  hereby  agree,  pursuant  to  the 

authority  vested  to  me  as ,  that  said 

will  be  returned  to  the  naval  authorities  at  the  aforesaid  place  of  his  delivery  without 
expense  to  the  United  States  immediately  upon  the  completion  of  his  trial  upon  the 
charge  aforesaid  to  the  event  that  he  is  acquitted  upon  said  trial,  or  immediately 
upon  satisfying  the  sentence  of  the  court  in  the  event  that  he  is  convicted  and  a 
sentence  imposed,  or  upon  other  disposition  of  his  case,  provided  that  the  naval 
authorities  shall  then  desire  his  return."  (File  26524-239:3,  Sec.  Navy,  Feb.  26, 1916.) 
See  General  Order  No.  121,  paragraphs  11,  12. 

~2.  Agreement  not  required  of  Federal  authorities — An  agreement  as  to  expenses  will 
not  be  exacted  as  a  condition  to  the  delivery  of  men  to  the  Federal  authorities,  either 
inresponsetowritsofhabeascorpus,  as  witnesses,  or  for  trial.  However,  to  such  cases 
the  expenses  will  be  defrayed  as  follows:  The  person  who  produces  a  man  in  a  Federal 
court  in  response  to  a  writ  of  habeas  corpus  or  as  a  witness  will  keep  an  accurate 
account  of  expenses,  and  present  same  to  the  United  States  marshal  for  the  district 
to  which  the  court  is  sitting,  who  is  the  proper  officer  to  settle  such  account,  including 
the  expenses  of  the  return  trip.  (File  262.51-8684: 2  &  4.)  Men  desired  by  the  Federal 
authorities  for  trial  will  be  called  for  and  taken  into  custody  by  a  United  States 
marshal  or  deputy  marshal;  in  such  case  the  expense  of  transporting  the  man  to  the 
place  of  trial  will,  of  course,  be  defrayed  by  the  marshal.  The  question  whether  the 
man  to  such  case  may  be  returned  to  the  Navy  at  the  expense  of  the  United  States 
if  not  convicted,  and  if  so,  what  appropriation  is  available  therefor,  has  not  been 
settled.  (See  14  Comp.  Dec.,  824;  87  S.  &  A.  Memo.,  713.)  See  General  Order  No. 
121,  paragraph  13. 

3.  Civilian  attorney's  attention— Invited  to.    C.  M.  O.  31,  1915,  6. 

4.  Commanding  officer  must  notify  department  and  await  Instructions— In  no 

case  will  commanding  officers  of  vessels  or  shore  stations  of  the  Navy  or  Marine  Corps 
deliver  to  the  civil  authorities,  State  or  Federal,  any  person  in  their  custody  or  under 
their  control  without  first  communicating  with  the  Secretary  of  the  Navy  and  await- 
ing his  instructions  in  the  premises.  The  Secretary  of  the  Navy  will  promptly  issue 
the  necessary  orders  in  the  case  or  make  request  upon  the  Attorney  General,  in  accord- 
ance with  Title  VIII  of  the  Revised  Statutes  of  the  United  States,  to  furnish  such 
legal  assistance  to  the  commanding  officer  concerned  as  the  interests  of  the  United 
States  involved  in  such  case  may  demand.  (See  par.  7  of  G.  O.  121.) 


GENERAL   ORDER   NO.    121.  265 

The  words  "in  no  case,"  as  used  in  the  above  paragraph,  are  intended  to  refer  to 
every  case  in  which  the  civil  authorities,  Federal  or  State,  request  or  demand  the 
delivery  to  them  of  any  officer  or  enlisted  man  in  the  Navy  or  Marine  Corps,  whether 
for  the  purpose  of  determining  the  legality  of  his  detention  by  the  naval  authorities, 
or  of  trying  him  for  a  violation  of  the  Federal  or  State  laws,  or  of  securing  the  testimony 
of  a  naval  prisoner  as  a  witness  in  a  civil  court.  The  instructions  contained  in  the 
above  paragraph  accordingly  apply  to  and  include  all  cases  in  which  writs  of  habeas 
corpus,  requisitions  of  the  governor  or  chief  executive  of  any  State,  warrants,  ad 
testificandum,  or  other  civil  process  of  any  kind  are  served  on  commanding  officers 
of  the  Navy  or  Marine  Corps,  afloat  or  ashore,  for  the  purpose  of  securing  the  delivery 
of  any  person  under  their  control  to  such  civil  authorities.  (See  par.  10  of  Q.  0. 121.) 

In  such  cases,  occurring  outside  of  the  District  of  Columbia,  the  report  to  the  Sec- 
retary of  the  Navy  will  be  telegraphic,  to  be  followed  immediately  by  letter  containing 
full  statement  of  the  facts.  In  order  to  expedite  action,  the  telegraphic  report  will  be 
addressed  to  the  Secretary  of  the  Navy  direct,  and  the  first  words  in  the  message  will 
be  "For  Judge  Advocate  General."  (C.  M.  O.  29,  1915,  7;  file  26524-183,  J.  A.  G., 
Oct.  14,  1915;  26524-185,  Sec.  Navy,  Oct.  2,  1915.)  See  General  Order  No.  121, 
paragraphs  1,  2,  3. 

5.  Delivery  of  men  to  State  authorities  for  trial— In  every  case  in  which  the  Secretary 

of  the  Navy  authorizes  the  delivery  of  any  person  in  the  Navy  or  Marine  Corps  to 
the  civil  authorities  of  a  State  for  trial,  the  senior  officer  present  will,  before  making 
such  delivery,  obtain  from  the  governor  or  other  duly  authorized  officer  of  such  State 
assurance  that  the  person  so  delivered  will  be  returned  to  the  naval  authorities  at  the 
place  of  his  delivery  without  expense  to  the  United  States,  immediately  upon  the 
completion  of  his  trial  for  the  alleged  misconduct  which  occasioned  his  delivery  to 
the  civil  authorities  in  the  event  that  he  is  acquitted  upon  said  trial,  or  immediately 
upon  satisfying  the  sentence  of  the  court  in  the  event  that  he  is  convicted  and  a  sen- 
tence imposed,  or  upon  other  disposition  of  his  case,  provided  that  the  naval  authori- 
ties shall  then  desire  his  return.  (Instructions  of  the  Secretary  of  the  Navy,  Mar.  7, 
1908,  file  425-2;  Apr.  1,  1908.  file  2928-8;  June  19,  1912.  file  26524-45;  Feb.  12,  1914,  file 
26524-57;  June  26,  1914,  file  26524-61;  26524-259:1,  Sec.  Navy,  Apr.  25,  1916.  See 
also  File  26524-64;  1579-03;  G.  O.,  No.  18,  U.  S.  M.  C.,  Mar.  29,  1909.)  (See  par.  12  of 
G.  0. 121.) 

The  instructions  contained  in  paragraphs  1  and  9  of  G.  O.  121  include  cases  where 
the  delivery  of  a  person  in  the  Navy  or  Marine  Corps  attached  to  a  navy  yard  or  station, 
or  serving  on  board  a  vessel  at  such  yard  or  station,  is  demanded  by  the  civil  authorities 
of  the  State  in  which  such  navy  yard  or  station  is  located,  although  such  State  has 
expressly  retained  jurisdiction  to  serve  civil  or  criminal  process  within  the  limits  of 
the  navy  yard  or  station  in  question.  (File  26524-57,  Sec.  Navy,  Feb.  12,  1914.) 
See  General  Order  No.  121,  paragraphs  9, 10. 

6.  Exact  compliance  with  directed— The  attention  of  commanding  officers  is  called  to 

the  requirement  of  paragraph  3  of  General  Order  No.  121,  September  17,  1914,  con- 
cerning the  "letter  containing  full  statement  of  the  facts"  which  should  immediately 
follow  the  telegraphic  report  to  the  Secretary  of  the  Navy  when  the  delivery  of  men 
to  the  civil  authorities  is  requested.  Attention  is  also  called  to  the  fact  that  the  first 
words  in  the  telegraphic  report  should  be  "For  Judge  Advocate  General."  C.  M.  O. 
29,  1915,  7.  See  also  File  26524-183,  J.  A.  G.,  Oct.  14,  1915;  26251-9965:21,  J.  A.  G., 
Oct.  4,  1915. 

7.  Expedition— Of  cases  coming  under.    File  26524-186,  J.  A.  G.,  Oct.  21, 1915,  Oct.  29, 1915. 

8.  Extradition.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  10. 

9.  Forms  of  agreement.    See  GENERAL  ORDER  No.  121,  SEPT.  17, 1914,1. 

10.  Governor's  requisition  necessary  hi  certain  cases— In  cases  in  which  the  delivery 
of  any  person  in  the  Navy  or  Marine  Corps  for  trial  is  desired  by  the  civil  authorities 
of  a  State,  and  such  person  is  not  attached  to  or  serving  at  a  navy  yard  or  other  place 
within  the  limits  of  said  State,  requisition  for  the  delivery  of  the  party  must  be  made 
by  the  governor  or  chief  executive  of  such  State,  addressed  to  the  Secretary  of  the 
Navy,  snowing  that  the  party  desired  is  charged  with  a  crime  in  that  State  for  which 
he  could  be  extradited  under  the  Constitution  of  the  United  States,  the  enactments 
of  Congress,  and  the  laws  of  the  State  desiring  his  delivery.  (File  26524-61.  June  1, 
1914;  26524-62,  June  22,  1914;  26254-237.  J.  A.  G.,  Apr.  20,  1916;  26254-260,  J.  A.  G., 
Apr.  25, 1916;  26524-261:1,  Sec.  Navy,  June  5, 1916;  26524-262,  J.  A.  G.,  Apr.  27,  1916; 
26524-144,  Sec.  Navy,  May  11, 1915;  26524-171,  Sec.  Navy,  Aug.  2,  1915;  26524-180,  Sec. 
Navy,  Sept.  16,  1915;  26524-190,  Sec.  Navy,  Oct.  16,  1915;  C.  M.  O.  35,  1915,  8;  2  Op. 


266  GENERAL   ORDER   NO.    121. 

Atty.  Gen.,  10.)  Such  requisition  may  be  forwarded  to  the  Secretary  of  the  Navy 
by  mail  for  preliminary  examination,  together  with  the  appointment  of  the  agent  of 
the  State  to  whom  it  is  desired  that  delivery  be  made.  Thereupon,  if  the  papers  are 
found  to  be  in  due  form,  the  Secretary  of  the  Navy  will  send  the  necessary  authoriza- 
tion to  the  designated  agent  permitting  him  to  take  the  party  into  custody  upon  com- 
pliance with  par.  9  oi  G.O.  121.  (File  26524-64-69-83;  26524-137,  Sec.  Navy.  Apr.  21, 
1915.)  See  General  Order  No.  121,  paragraph  14. 

11.  Habeas  corpus  proceedings,  Federal  courts— In  this  connection  there  is  quoted  for 

the  information  of  the  service  section  756  of  the  Revised  Statutes  of  the  United  States, 
which  prescribes  the  time  allowed  for  making  return  to  writs  of  habeas  corpus  issued 
by  Federal  courts: 

.  "Any  person  to  whom  such  writ  is  directed  shall  make  due  return  thereof  within 
three  days  thereafter,  unless  the  party  be  detained  beyond  the  distance  of  twenty 
miles;  and  if  beyond  that  distance  and  not  beyond  a  distance  of  a  hundred  miles, 
within  ten  days;  and  if  beyond  the  distance  of  a  hundred  miles,  within  twenty  days." 

The  officer  upon  whom  such  a  writ  of  habeas  corpus  is  served  can  not  be  required 
to  obey  same  in  any  shorter  period  after  the  service  of  the  writ  than  that  specified 
in  the  above  section  of  the  Revised  Statutes,  even  though  the  writ  should  in  terms 
require  that  the  person  named  therein  be  produced  "forthwith,"  or  "immediately," 
or  at  a  specified  time.  (Ex  parte  Baez,  177  U.  S.,  389;  United  States  v.  Bollman,  24 
Fed.  Cas.,  1190.) 

The  United  States  Revised  Statutes  contain  the  following  further  provisions  con- 
cerning habeas  corpus  proceedings  instituted  in  the  Federal  courts: 

"SEC.  757.  The  person  to  whom  the  writ  is  directed  shall  certify  to  the  court  or 
justice  or  judge  before  whom  it  is  returnable  the  true  cause  of  the  detention  of  such 
party. 

"SEC.  758.  The  person  making  the  return  shall  at  the  same  time  bring  the  body 
of  the  party  before  the  judge  who  granted  the  writ. 

"  SEC.  759.  When  the  writ  is  returned  a  day  shall  be  set  for  the  hearing  of  the  cause, 
not  exceeding  five  days  thereafter,  unless  the  party  petitioning  requests  a  longer 
time." 

In  accordance  with  the  foregoing  sections  of  the  Revised  Statutes,  should  instruc- 
tions for  any  reason  not  be  received  by  the  commanding  officer  from  the  Secretary 
*  of  the  Navy  by  the  last  day  of  the  period  allowed  by  law  for  making  return  to  a  writ 
of  habeas  corpus  issued  by  a  Federal  court,  the  commanding  officer  will  certify  to  the 
court  or  justice  or  judge  before  whom  the  writ  is  returnable  the  true  cause  of  the 
detention  of  the  party,  if  in  his  custody,  and  will  at  the  same  time  bring  the  body 
of  the  said  party  before  the  judge  who  granted  the  writ,  and  request  the  court  to  delay 
the  hearing  of  the  cause  for  the  full  period  of  five  days  allowed  by  law,  so  that  further 
opportunity  may  be  afforded  for  the  receipt  of  instructions  in  the  premises  from  the 
Secretary  of  the  Navy.  If  the  party  is  not  in  the  custody  of  the  officer  to  whom  the 
writ  is  directed,  he  will  so  state  in  his  return.  (See  File  26262-1625,  Inc.  1,  p.  26.) 
(As  to  definition  of  "custody,"  see  Wales  v.  Whitney,  114  U.  S.,  564.)  See  General 
Order  No.  121,  paragraphs,  4-7. 

12.  Habeas  corpus  proceedings,  State  courts— State  courts  have  no  jurisdiction  in 

habeas  corpus  proceedings  to  order  the  discharge  of  any  person  held  by  an  officer  of 
the  Navy  or  Marine  Corps  by  authority  of  the  United  States;  however,  in  the  event 
that  a  writ  of  habeas  corpus  should  be  issued  by  a  State  court  to  a  commanding  officer 
of  the  Navy  or  Marine  Corps,  afloat  or  ashore,  the  Secretary  of  the  Navy  will  be  com- 
municated with  immediately  in  accordance  with  paragraph  3  of  G.  O.  121;  and 
should  instructions  not  be  received  by  the  commanding  officer  from  the  Secretary 
of  the  Navy  by  the  time  specified  in  the  writ,  or  if  no  definite  time  be  specified  therein, 
within  three  days  after  the  service  of  the  writ  (United  States  v.  Bollman,  24  Fed.  Cas., 
1190)  the  officer  upon  whom  the  writ  is  served  will  make  return  thereto  in  accordance 
with  "Forms  of  Procedure  for  Courts  and  Boards  in  the  Navy  and  Marine  Corps" 
(p.  76),  without  producing  the  body  of  the  party  in  court.  See  General  Order 
No.  121,  paragraph  8. 

13.  Hawaii— The  following  instructions  were  issued  to  the  Commandant,  Naval  Station, 

Hawaii,  with  regard  to  General  Order  No.  121,  September  17,  1914: 

"It  is  directed  that  the  commandant  communicate  to  the  Secretary  of  the  Navy 
in  advance  of  the  delivery  of  persons  to  the  civil  authorities  only  in  cases  where  the 
circumstances  are  such  as,  in  his  judgment,  make  such  action  desirable."  File  26524- 
172,  Sec.  Navy,  Nov.  23,  1915;  C.  M.  O.  42,  1915,  10. 


GENERAL   ORDER   NO.    121.  267 

14.  Leave  of  absence  may  be  granted  to  appear  for  trial— Where  a  person  in  the  Navy 

or  Marine  Corps  is  arrested  by  the  Federal  or  State  authorities  for  trial  and  returns 
to  his  ship  or  station  on  bail,  the  commanding  officer  may  grant  him  leave  of  absence 
to  appear  for  trial  on  the  date  set  upon  an  official  statement  by  the  judge,  prosecuting 
attorney,  or  clerk  of  the  court,  reciting  the  facts,  giving  the  date  on  which  the  appear- 
ance of  the  man  is  required,  and  the  approximate  length  of  time  that  should  be  covered 
by  such  leave  of  absence.  (File  5322,  May  23,  1906;  26524-45,  June  19,  1912.)  See 
General  Order  No.  121,  paragraph  17. 

15.  Naval  prisoners  as  witnesses  or  parties  in  civil  courts — If  the  Federal  or  State 

authorities  desire  the  attendance  of  a  naval  prisoner  (see  par.  15)  as  a  witness  in  a 
criminal  case  pending  in  a  civil  court,  upon  the  submission  of  such  a  request  to  the 
Secretary  of  the  Navy  authority  will  be  given  in  a  proper  case  for  the  production  of 
the  man  in  court  without  resort  being  had  to  a  writ  of  habeas  corpus  ad  testificandum. 
(File  26251-8684:2,  June  10,  1914;  26276-93,  May  29,  1914;  26276-40,  June  10,  1912; 
26276-33,  June  5, 1911;  26276-17,  Nov.  10,  19:)9;  26251-11233:1,  Sec.  Navy,  Dec.  7,  1915; 
26251-11252:2,  Sec.  Navy,  June  2,  1916;  Army  Digest,  1912,  221  a.)  The  department, 
however,  will  not  authorize  the  attendance  of  a  naval  prisoner  in  a  Federal  or  State 
court,  either  as  a  party  or  as  a  witness  in  private  litigation  pending  before  such  court, 
as  in  such  cases  the  court  may  grant  a  postponement  or  a  continuance  of  the  trial; 
but  the  department  will  allow  the  deposition  of  such  naval  prisoner  to  be  taken  in 
the  case.  (File  26251-4913:1,  Oct.  12,  1911;  26276-36,  Dec.  9,  1911;  26276-121,  J.  A.  G., 
Nov.  19, 1915.)  See  General  Order  No.  121,  paragraph  16.  Seealso  WITNESSES,  86. 

16.  Naval  prisoners  wanted  by  civil  authorities  for  trial — In  any  case  in  which  the  de- 

livery of  a  person  in  the  Navy  or  Marine  Corps  for  trial  is  desired  by  the  civil 
authorities,  Federal  or  State,  and  such  person  is  a  naval  prisoner  (which  includes  any 
person  serving  sentence  of  court-martial  or  in  custody  awaiting  trial  by  court-martial 
or  disposition  of  charges  against  him),  he  will  not  in  general  be  delivered  to  the  Federal 
or  State  authorities  until  he  has  served  the  sentence  of  the  naval  court-martial,  or  his 
case  has  otherwise  been  finally  disposed  of  by  the  naval  authorities.  (File  26251-164, 
June  4  and  Oct.  19,  1908;  26251-5546:1,  Jan.  20,  1912;  26251-6397:1,  Aug.  28,  1912; 
26524-217,  J.  A.  G.,  Dec.  28, 1915;  letter  of  Attorney  General  to  Secretary  of  the  Navy, 
Apr.  16, 1907,  No.  99858,  N.  D.  file  6674-33;  7538-142,  Dec.  3, 1913;  7538-74,  Oct.  4,  1909; 
Army  Digest,  1912,  135  D.)  However,  if  the  Federal  or  State  authorities  desire  the 
surrender  of  the  party  under  the  above  circumstances  upon  a  serious  charge,  such  as 
felonious  homicide,  and  the  interests  of  justice  would  bo  better  subserved  by  his 
delivery,  the  Secretary  of  the  Navy  may,  in  his  discretion,  discharge  the  man  from 
naval  custody  and  from  his  contract  of  enlistment  and  deliver  him  to  the  civil 
authorities  for  trial.  (File  26251-2798:2,  Jan.  24,  1910;  Army  Digest,  1912, 135  D,  136.) 
See  General  Order  No.  121,  paragraph  15. 

In  general,  a  prisoner  serving  sentence  will  not  be  delivered.  File  26251-1212:71 
Sec.  Navy,  July  26,  1916. 

17.  Panama— General  Order  No.  121,  September  17,  1914,  does  not  apply  to  Panamanian 

authorities.  The  department's  instructions  must  be  requested  in  specific  cases  as 
they  arise,  giving  particulars.  File  26524-182,  Sec.  Navy,  Sept.  17,  1915;  C.  M.  O. 
31, 1915,  6. 

18.  Prisoners.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  15,  16. 

19.  Process,  service  of.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  23. 

20.  Records— Desired  by  civil  courts.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  23. 

21.  Requisitions.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  10. 

22.  Samoa — General  Order  No.  121,  September  17,  1914,  does  not  apply  to  persons  in  the 

naval  service  at  Samoa,  and  there  are  no  "civil  authorities"  at  Samoa  within  the 
meaning  of  this  general  order.  File  26524-125,  Sec.  Navy,  Apr.  1,  1915;  C.  M.  O. 
16,  1915,  5. 

23.  Service  of  subposnas— Leave  of  absence  granted— Production  of  records  in  court — 

Preliminary  examination  of  records — Tn  cases  in  which  the  Federal  or  State  authorities 
desire  to  subposna  any  person  in  the  Navy  or  Marine  Corps  other  than  a  naval  prisoner 
as  a  witness,  the  following  instructions  will  govern: 

(a)  Commanding  officers  afloat  or  ashore  are  authorized  to  permit  the  service  of 
such  process  upon  the  person  named  therein,  but  service  will  not  be  allowed  without 
such  permission  of  the  commanding  officer  first  being  obtained.  In  cases  in  which 
service  by  mail  is  legally  sufficient,  the  papers  may  be  addressed  to  the  commanding 
officer  with  request  that  they  be  delivered  to  the  man  named  therein.  (File  6769-21, 
July  19,  1911;  26524-59,  May  1,  1914;  26524-275:5,  Sec.  Navy,  Aug.  8,  1916;  26524-163. 
J.  A.  G.,  July  9,  1915;  26276-112,  Sec.  Navy,  Sept.  16,  1915;  26251-11233:1,  See.  Navy, 
Dec.  7, 1915;  C.  M.  O.  31, 1915,  5.) 


268  GENERAL   ORDER   NO.    121. 

(b)  In  such  cases  the  commanding  officer  is  authorized  to  grant  leave  of  absence 
to  the  person  subpoenaed  in  order  to  permit  him  to  obey  such  subpoena,  unless  the 
public  interests  would  be  seriously  prejudiced  by  his  absence,  in  which  case  full 
report  of  the  matter  should  be  made  to  the  department.    (File  20276,  Apr.  27,  1908, 
May  19,  1908,  June  9,  1908;  26276-118,  Sec.  Navy,  Oct.  6,  1915;  26276-117,  Sec.  Navy, 
Oct.  9, 1915;  26251-11233:1,  Sec.  Navy,  Dec.  7,  1915;  26276-137,  Sec.  Navy,  May  2, 1916.) 
This  includes  cases  in  which  the  party  is  subpoenaed  as  a  witness  before  a  general 
court-martial  of  a  State.    (File  7022-3,  Oct.  12, 1907.) 

(c)  Officers  of  the  Navy  or  Marine  Corps  are  prohibited  from  producing  official 
records  or  copies  thereof  in  a  State  court  in  answer  to  subpoenas  ducts  tecum,  or 
otherwise,  without  first  obtaining  authority  therefor  from  the  Secretary  of  the  Navy. 
(File  26276-26,  June  16,  1910;  Boske  v.  Comingore,  177  U.  S.,  460.)    In  all  cases  where 
copies  of  records  are  desired  by  or  on  behalf  of  parties  to  a  suit,  whether  in  a  Federal 
or  State  court,  such  parties  will  be  informed  that  it  has  been  the  invariable  practice 
of  the  Navy  Department  to  decline  to  furnish  in  the  case  of  legal  controversies,  at  the 
request  of  the  parties  litigant,  copies  of  papers  or  other  information  to  be  used  in  the 
course  of  the  proceedings,  or  to  grant  permission  to  such  parties  or  their  attorneys 
to  make  preliminary  or  informal  examination  of  the  records;  but  that  the  department 
will  promptly  furnish  copies  of  papers  or  records  in  such  cases  upon  call  of  the  court 
before  which  the  litigation  is  pending.    (File  5467-8,  Mar.  27,  1907;  12475-46,  July  12, 
1913;  12475-W),  J.  A.  Q.,  June  7,  1916;  26251-11401:3,  J.  A.  G.,  June  10,  1916;  12475-75, 
Sec.  Navy,  Apr.  11, 1916;  12475-74,  Sec.  Navy,  Mar.  30,  1916;  Boske  v.  Comingore,  177 
U.  S.,  461;  file  12475-52:1,  Aug.  7,  1914.)    See  General  Order  No.  121,  paragraph  18. 

24.  Subpoenas.    See  GENERAL  OKDEE  No.  121,  SEPT.  17,  1914,  23. 

25.  Witnesses  desired.   See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  15,16. 

GENERAL  ORDER  NO.   ISO,  JUNE   14,  1915.    See  also  NAVAL  MILITIA. 

1.  Oath — The  Naval  Militia  should  adhere  strictly  to  the  form  of  oath  provided  in  General 

Order  No.  150,  June  14,  1915.  If  each  State  were  permitted  to  change  the  oath  pre- 
scribed, in  various  ways  which  it  might  think  still  met  the  requirements,  uniformity 
would  at  once  be  gone  and  there  would  be  irreconcilable  chaos.  File  3973-109:4,  Sec. 
Navy,  Aug.  31,  1915;  C.  M.  O.  29,  1915,  8. 

2.  Physical  examination.    See  NAVAL  MILITIA,  29. 

GENERAL  STOREKEEPER,  ASSISTANT. 

1.  Drunkenness  on  duty— Tried  by  general  court-martial.    C.  M.  O.  5,  1915. 

GENERAL  SUMMARY  IN  COURT-MARTIAL  ORDERS. 

1.  Explained— Commencing  with  Court-Martial  Order  No.  35, 1915,  the  arrangement  of  the 
"General  summary  '•  following  the  principal  tabulation  of  general  court-martial  cases 
reviewed  by  the  department  during  the  month  has  been  changed. 

The  first  column,  as  theretofore,  represents  the  principal  offenses.  These  offenses 
are  in  most  cases  abbreviations  of  the  charges  and  therefore  their  phraseology  should 
not  be  followed  by  convening  authorities  in  preparing  charges  for  trials. 

The  figures  opposite  each  offense  represent  the  number  of  cases  in  which  men  were 
tried  for  that  offense.  It  will  be  noted  that  the  total  of  these  figures  is  greater  than 
the  total  number  of  cases  tried.  This  is  explained  by  the  fact  that  some  men  were 
tried  on  more  than  one  charge.  C.  M.  O.  42, 1915,  7. 

GIFTS  TO  GOVERNMENT. 

1.  Congress  must  authorize — Without  an  act  of  Congress  authorizing  it,  a  gift  of  pay 

(or  half-pay)  of  an  officer  can  not  be  accepted  by  the  Government.  Same,  in  case  of 
gift  of  sailboat  to  Naval  Academy,  and  of  yawl  presented  for  use  of  midshipmen  at 
Naval  Academy.  File  13673-1442:1,  J.  A.  G.,  Jan.  13,  1912.  See  also  File  3442-3, 
Oct.  22,  1906;  1742-9,  April  18,  1907. 

2.  Pay— Gift  of  pay  or  half-pay.    See  GIFTS  TO  GOVERNMENT,  1. 

3.  Prizes,  cash — To  be  competed  for  by  enlisted  men  on  duty  in  Canal  Zone.    Accepted, 

but  regarded  as  "informal  and  unofficial."    File  1742-9,  Sec.  Navy.  Apr.  18, 1907. 

4.  Sailboat— To  Naval  Academy— Sailboat  of  the  Boston  "Knock-about"  type.    File 

3442-3,  J.  A.  G.,  Oct.  22, 1906.    See  also  GIFTS  TO  GOVERNMENT,  1. 

5.  Silver  service— The  act  of  May  20, 1908  (35  Stat.,  171).  provides  for  the  acceptance  by  the 

Secretary  of  the  Navy  of  silver  service,  etc.,  for  snips  presented  by  States. 

6.  Yawl.   See  GIFTS  TO  GOVERNMENT,  1. 

GIN.    See  C.  M.  O.  56, 1880. 


GOVERNMENT   HOSPITAL   FOR   THE    INSANE.  269 

GIST.    See  also  WORDS  AND  PHKASES. 

1.  "Absence  from  station  and  duty  without  leave."    See  ABSENCE  FKOM  STATION 

AND  DUTY  WITHOUT  LEAVE,  19. 

2.  Desertion.    See  DESERTION,  54. 

3.  Embezzlement.    See  EMBEZZLEMENT. 

4.  Perjury.    See  PERJURY,  4. 

GOLD. 

1.  Transportation  of— In  Government  ships.    File  27673-342,  J.  A.  G.,  Dec.  23,  1915; 
6739-185,  J.  A.  G.,  Oct.  9,  1915. 

GOOD-CONDUCT  MEDALS. 

1.  Extension  of  enlistments— Marine  Corps.    File  3980-1255,  August,  1916.    See  also 
MARINE  CORPS,  37;  R-4172  (1)  as  amended. 

GOOD  NAME  OF  NAVAL  SERVICE.    C.  M.  O.  7,  1912,  3;  5,  1913,  4. 

GOUGING. 

1.  Fraudulently  obtaining  examination  papers  In  advance-^The  accused  (officer 

under  instruction)  was  tried  under  "Scandalous  conduct  tending  to  the  destruction 
of  good  morals"  for  obtaining  without  permission  from  proper  authority,  and  by 
corrupting  and  bribing  with  money  an  employee  in  printing  office,  a  copy  of  the 
questions  to  be  propounded  to  the  members  of  the  class  at  examination,  and  will- 
fiilly  and  fraudulently  retaining  the  copy,  thereby  obtaining  an  unfair  advantage  of 
the  other  members  of  the  class.  C.  M.  O.  56,  1888.  See  also  13  J.  A.  G.  458,  Aug.  18, 
1905;  BLOTTER. 

2.  Gunner — Cheating  while  undergoing  a  written  professional  examination— Tried  by 

general  court-martial  and  dismissed.    See  BLOTTER,  1. 

3.  Midshipmen— Obtaining  a  copy  of  examination  questions  in  advance.    File  5252-73, 

J.  A.  G.,  Oct.  1,  1915,  Sec.  Navy,  Oct.  2  .1915.    See  also  MIDSHIPMEN,  22. 

4.  Officer.   See  GOUGING,  1;  OFFICERS,  13. 

GOVERNMENT  CONTRACTORS. 

1.  Bonds— Recommending  the  adoption  of  the  system  of  annual  bonds  to  accompany  con- 

tracts for  the  furnishing  of  naval  supplies  in  cases  where  such  procedure  is  deemed 
advantageous  to  the  Government.  File  17271-4,  J.  A.  G.,  May  22,  1908. 

2.  Chief  commissary  steward— Tried  by  general  court-martial  for  receiving  a  commission 

from.    C.  M.  O.  69,  1903. 

3.  Chief  Sailmaker— Tried  by  general  court-martial  for  recommending  acceptance  of 

supplies  delivered  by  a  contractor,  which  said  supplies  were  not  in  accordance  with 
the  specifications  governing  purchase.  C.  M.  O.  4,  1908. 

4.  Illegal  and  unauthorized  agreement  with— By  inspector  of  machinery.    C.  M.  O. 

41,  1915. 

5.  Investigation — An  officer  was  detailed  by  Secretary  of  the  Navy  to  investigate  and 

ascertain  whether  any  person  in  the  naval  service  had  originated  or  circulated  reports 
or  rumors  by  means  of  the  public  press  concerning  the  relations  between  an  officer 
and  Government  contractors,  and  was  authorized  to  administer  oaths  to  witnesses 
under  R.  S.  183.  File  26251-8827:5;  16711-3,  July  12,  1911.  See  also  OATHS,  25. 

6.  Officers — Employment  by.    See  RETIRED  OFFICERS,  28,  31,  34-37. 

GOVERNMENT  HOSPITAL  FOR  THE  INSANE. 

1.  Allotments  by  patients.    See  ALLOTMENTS,  3.  4. 

2.  Allowances  for  prisoners  and  patients  at— Where  certain  articles  are  essential  for  the 

comfort  and  welfare  of  general  court-martial  prisoners  confined  in  the  Government 
Hospital  for  the  Insane,  the  naval  medical  officer  is  authorized  to  forward  a  certificate, 
setting  forth  the  articles  desired,  to  the  commandant,  navy  yard,  Washington,  D.  C. 
The  commandant  has  authority  to  approve  the  purchase  of  these  articles  not  to 
exceed  three  dollars  per  month,  the  amount  excepted  by  the  court-martial  sentence 
for  "necessary  prison  expenses";  if  there  is  no  money  due  such  prisoners  these  articles 
will  be  charged  to  "  Pay,  miscellaneous,"  in  accordance  with  the  act  of  February  16, 
1909,  section  13  (35  Stat.,  622). 

Naval  patients  not  undergoing  punishment  when  competent  to  sign  pay  receipts- 
for  such  articles  will  be  allowed  to  draw  the  same  from  pay  due,  and  the  commandant 
is  authorized  to  approve  such  purchases  upon  certification  of  the  naval  medical  officer 
that  such  patients  are  competent  to  sign  pay  receipts  for  nominal  amounts  necessary 
to  the  comfort  and  welfare  of  such  patients. 


270  GOVERNMENT  HOSPITAL  FOR  THE   INSANE. 

There  is  no  authority  whereby  patients  not  undergoing  sentence  and  who  are 
legally  incompetent  to  sign  such  pay  receipts  can  draw  such  sums  unless  a  guardian 
or  committee  has  been  appointed.  File  10060-61,  Sec.  Navy,  June  3,  1915.  See  also 
File  8528-410,  J.  A.  G.,  June  4,  1914;  10060-14,  Sec.  Navy,  Jan.  30,  1911;  10060-46,  Sec. 
Navy,  June  12,  1914;  C.  M.  O.  22,  1915,  8. 

3.  Discharge.    See  DISCHARGE,  25. 

4.  Officers— The  department  has  authority  under  the  law  to  recommit  an  officer  to  the 

Government  Hospital  for  the  Insane  after  his  discharge  therefrom  has  been  ordered 
by  the  Supreme  Court  of  the  District  of  Columbia  in  accordance  with  the  finding  of 
a  jury  that  he  is  of  sound  mind.  However,  to  avoid  placing  itself  in  the  position  of 
disregarding  the  court's  action  sufficient  time  shoiild  elapse  and  new  evidence  be 
obtained,  so  that  a  second  habeas  corpus  proceedings  could  be  successfully  met. 
File  8528-327,  Apr.  18,  1911.  See  also  R.  S.?  701. 

5.  Same — Where  the  Supreme  Court  of  the  District  of  Columbia  decided  that  an  officer  of 

the  Navy  was  entitled  to  his  discharge  from  the  Government  Hospital  for  the  Insane 
but  the  Chief  Justice  agreed  to  withhold  the  signing  of  an  order  until  the  Navy  Depart- 
ment could  be  communicated  with  and  be  heard  on  the  subject,  the  Navy  Department 
ordered  the  officer  in  question  to  a  naval  hospital  for  treatment,  and  decided  to  take 
no  further  action  in  the  case.  (File 8528-327:2,  Jan.  31, 1911.  See.  also  R.  S.,  761.) 

Insane  persons  in  the  Navy  lawfully  committed  by  the  Secretary  of  the  Navy  to 
the  Government  Hospital  for  the  Insane  should  continue  to  be  held  by  the  superin- 
tendent of  that  hospital  until  the  court  orders  otherwise  or  until  they  are  cured. 
File  2(1251-4927:10,  July  8,  1911,  quoting  letter  from  Department  of  Justice  to  the 
Interior  Department,  dated  Mar.  28,  1912. 

6.  Pay  while  at.    File  10060-74:2,  Sec.  Navy,  June  19,  191C. 

GOVERNMENT  RESERVATIONS. 

1.  Jurisdiction.    See  JURISDICTION,  12,  13,  22,  23,  83-85,  91,  95,  96,  105,  108, 117, 119-122. 

GOVERNORS  OF  STATES. 

1.  Requisition— Necessary   in   certain    cases.    See  GENERAL  ORDER  No.  121,  Sept.    17, 
1914,  10. 

GRADE. 

1.  Additional  number  in — Date  of  promotion.    See  ADDITIONAL  NUMBERS. 

2.  Office  of  Chief  of  Bureau — Is  not  a  grade.    See  BUREAU  CHIEFS. 

GRADE  AND  RANK. 

1.  Distinguished— "The  distinction  between  rank  and  grade  in  both  the  Army  and 

Navy"  is  well  understood.    (26  Op.  Atty.  Gen.  59.) 

'  "Grade  expresses  one  of  the  divisions  or  degrees  in  the  particular  department  or 
branch  of  the  service  according  to  which  offices  therein  are  classified  or  graded;  and 
rank,  which  originally  signified  that  which  determines  the  right  to  command,  and  is 
still  an  inseparable  incident  to  such  right,  expresses  the  position  of  officers  of  different 
grades,  or  of  the  same  grade  in  point  of  authority,  precedence,  or  the  like  of  one  over 
another."  (16  Op.  Atty.  Gen.  410.) 

The  words  "office"  and  "grade"  have  been  construed  as  synonymous  and  as 
something  different  from  "rank"  (20  Op.  Atty.  Gen.  358;  19  Op.  Atty.  Gen.  109). 
although  it  has  been  judicially  held  that  "grade"  may  refer  to  a  step  or  degree  in 
either  "office"  or  "rank,"  and  it  has  also  been  given  other  interpretations,  as,  for 
example,  that  it  refers  to  steps  or  degrees  in  the  pay  attached  to  an  office  or  rank. 

The  words  "grade"  and  "rank"  are  sometimes  used  synonymously  (16  Op.  Atty. 
Gen.  416),  and  the  precise  meaning  thereof  in  any  case  "may  be  governed  by  other 
language  in  connection  with  which  used,  or  surrounding  circumstances  from  which 
the  legislative  intent  may  be  plainly  gathered. 

Thus,  in  the  same  statute,  the  word  "grade"  where  used  in  different  connections 
has  been  held  to  mean  "rank"  in  one  instance  and  "office"  in  another.  (See  22  Op. 
Atty.  Gen.  47,  construing  R.  S.  422.) 

For  twenty-four  years  the  word  "grade"  as  used  in  the  Act  of  July  28, 1892  (27  Stat. 
321)  has  been  construed  in  practice  by  the  Navy  Department  as  synonymous  with 
rank.    File  26521-144:1,  Sec.  Navy,  July  10,  1916. 
GRAFT. 

1.  Chief  commissary  steward— Receiving  bribes  from  Government  contractors.    C.  M. 
O.  69, 1903. 


2.  Civil  employees— Pay  roll.    C.  M.  O.  129,  1898. 

3.  Petty  officer,  by— Ship's  store.    C.  M.  O.  28, 1914. 


GUAM.  271 

GRAND  JURY. 

1.  Presentment  and  indictment  by  grand  Jury.    See  CONSTITUTIONAL  RIGHTS  OF 

ACCUSED,  13. 

2.  Secrecy— By  the  policy  of  the  law  the  investigations  and  deliberations  of  the  grand  jury 

are  conducted  in  secret,  and  in  the  absence  of  statutes  the  grand  jury  is  not  bound 
to  keep  a  record  of  the  evidence  before  it.  File  14625-183:17,  Sec.  Navy,  Apr.  14, 1913. 

GRATUITY,  DEATH.    See  DEATH  GRATUITY. 
GRATUITY,  FOUR  MONTHS.    See  File  28550-20. 
GRATUITY,  ON  DISCHARGE.   See  EXEMPTIONS  IN  SENTENCES. 

GRAVAMEN. 

1.  "Culpable" — Not  gravamen  of  charge  of  "Culpable  inefficiency  in  the  performance  of 

duty."    C.  M.  O.  4,  1914;  G.  O.  68,  Dec.  6,  1865.    See  also  CULPABLE. 

2.  Desertion.    C.  M.  O.  31,  1915,  15.    See  also  DESERTION,  54. 

3.  Eliminated  by  court.    See  FINDINGS,  40. 

4.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  23,  49. 

5.  Referred  to.    C.  M.  O.  17,  1910,  4;  21,  19iO,  8;  7,  1912,  2;  8,  1912,  3;  20,  1912,  4. 

GROG. 

'  1.  Grog  ration  abolished — Grog,  spirit  ration,  abolished  from  September  1,  1862,  by  act 
of  July  15,  1862,  sec.  4.  (12  Stat.  565.)  See  also  Marine  Corps  Gazette,  March,  1916, 
pp.  52-53. 

GROUNDING  SHIP. 

1.  Officers— Tried  by  general  court-martial.  C.  M.  O.  20, 1883;  15, 1905;  17, 1913;  32,  1913; 
2,  1914;  3, 1914;  2, 1915;  3,  1915;  26,  1916;  27, 1916;  31,  1916.  See  also  13  J.  A.  G.,  96; 
File  7893-03,  J.  A.  G.,  Sept.  22,  1903. 

GUAM. 

1.  Acting  governor — An  officer  having  been  "duly  appointed  to  act"  as  governor  is, 

while  serving  under  such  appointment,  entitled  to  the  honors  due  to  that  office. 
File  4451.  See  also  ACTING  APPOINTMENTS,  1. 

2.  Banishment— Sentence  of  banishment  imposed  by  civil  court.    See  BANISHMENT,  1. 

3.  Citizenship— See  ALIENS,  7;  CITIZENSHIP,  20. 

4.  Customs.    File  10304-03,  J.  A.  G.,  Jan.  25,  1904. 

5.  Governor — Powers  of— The  naval  governor  of  Guam  "exercises  plenary  powers,  subject 

to  the  supervision  of  the  Secretary  of  the  Navy  and,  of  course,  of  the  President,  over 
all  public  affairs  of  the  island  of  Guam,  including  the  organization  and  procedure  of 
the  local  courts  in  civil  and  criminal  matters";  his  authority  extends  "to  the  granting 
of  reprieves  and  pardons,  one  of  the  highest  prerogatives  of  sovereignty,  and  executive 
power;"  and  includes  "the  modification  of  laws  and  the  abolition  and  institution 
of  courts";  he  "has  authority  to  prescribe  the  form  of  penal  code  to  be  administered 
and  to  modify  said  code  at  his  pleasure,  subject  to  the  approval  of  his  superiors." 
File  9351-976,  Dec.  3,  1910. 

6.  Same — Powers  of— In  the  absence  of  congressional  legislation  authority  of  the  naval 

governor  of  Guam  is  supreme.  He  is  accordingly  authorized  to  designate  place  of 
confinement  for  prisoners  of  the  naval  government  of  Guam,  within  territory  under 
sovereignty  of  the  United  States.  His  action  in  designating  a  prison  in  the  Philippine 
Islands  as  a  place  of  confinement  meets  with  the  approval  of  the  Secretary  of  the 
Navy  in  the  case  of  a  civilian  convicted  by  the  civil  court  of  Guam  of  misappropriation 
of  public  funds  while  postmaster  at  Guam.  File  9351-1436 :  4,  June  3,  1915. 

7.  Jurisdiction— Of  naval  and  civil  courts.    See  File  9463-03,  J.  A.  G.,  Dec.  19,  1903. 

8.  Laws.    See  File  9351-976;  15  J.  A.  G.  42;  GUAM,  5. 

9.  Postmaster— Convicted  by  civil  courts  and  imprisoned  in  the  Philippine  Islands.    See 

GUAM,  6. 

10.  Reports— An  Executive  order  of  May  11,  1907,  directed  that  on  and  after  June  1, 1907, 

all  official  communications  from  and  to  executive  officers  of  Samoa  and  Guam  shall 
be  transmitted  through  the  Secretary  of  the  Interior  in  such  manner  and  under  such 
regulations  as  he  may  prescribe.  It  will  be  entirely  satisfactory  to  the  Interior 
Department  to  receive  copies  of  the  official  reports  relative  to  Guam  and  Samoa  instead 
of  the  originals  direct.  (File  21393-26,  June  4,  1907.) 

60756°— 17 18 


272  GUAM. 

The  governors  of  Guam  and  of  Tutuila,  Samoa,  are  directed  to  forward  all  reports, 
etc.,  relating  to  territorial  matters,  as  distinguished  from  matters  of  purely  naval 
administration,  to  the  Navy  Department  in  duplicate  in  order  that  one  copy  may  be 
forwarded  to  the  Secretary  of  the  Interior.  File  21393-26,  June  6,  1907. 

GUARANTY. 

1.  Lost— Made  by  Government  contractor  to  Inspector  of  Machinery.    C.  M.  O.  41,  1915. 

GUARD. 

1.  Duty— Of  member  of  guard  when  prisoner  attempts  to  escape.    See  MANSLAUGHTER,  9. 

GUARD  DUTY. 

1.  Army.    See  MANSLAUGHTER,  9. 

2.  Marine  Corps.    See  MANSLAUGHTER,  9. 

3.  Sentence^-Under  no  circumstances  shall  an  offender  [marine]  be  placed  on  guard, 

or  required  to  perform  extra  guard  duty,  as  a  punishment  whether  serving  afloat  or 
on  shore.  (R-4184.)  In  a  case  where  a  general  court-martial,  among  other  things, 
sentenced  a  marine  to  "perform  extra  guard  duty"  the  department  remitted  that 
part  of  the  sentence  "  for  the  reason  that  the  imposition  of  extra  tours  of  guard  duty  as 
a  penalty  is  inconsistent  with  the  importance  of  such  service,  and  tends  to  degrade 
that  honorable  and  responsible  duty  of  the  soldier.  Extra  duty  of  that  character 
should  not,  under  any  circumstances,  be  imposed  as  a  punishment.  C.  M.  0 . 26, 1882. 

GUARDIAN. 

1.  Ad  lltem — Appointment  of  guardian  ad  litem  not  necessary  in  a  criminal  case.    File 

26251-6020  : 11,  Sec.  Navy,  July  7,  1913. 

2.  Death  gratuity.    See  DEATH  GRATUITY,  13. 

3.  Government  Hospital  for  the  Insane — Patient  at.    See  GOVERNMENT  HOSPITAL 

FOR  THE  INSANE,  2. 

4.  Infants — Allotments  should  be  made  to  guardians.    See  ALLOTMENTS,  5. 

5.  Same— Consent  of  guardian  for  enlistment  of.    C.  M.  O.  22,  1915,  9;  49,  1915,  25.    See 

also  FRAUDULENT  ENLISTMENT,  57;  MINORS,  10,  11. 

GUEST. 

1.  Drunk — Drunkenness  is  aggravated  by  fact  that  one  is  an  invited  guest  of  a  club. 

C.  M.  O.  9,  1906,  1. 

2.  Invited  guest — In  a  navy  yard  should  be  treated  with  courtesy.    C.  M.  O.  53,  1910,  2. 

GUILTY. 

1.  Evidence — Inconsistent  with  plea  of  "guilty."    See  STATEMENT  OF  ACCUSED,  15-16. 

2.  In  a  less  degree  than  charged.    See  GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED. 

3.  Judge  advocate— Not  to  suggest  that  accused  plead  "Guilty."    Sec  JUDGE  ADVO- 

CATE, 34. 

4.  Plea  of — Precludes  a  regular  defense.    See  ACCUSED,  38;  EVIDENCE,  50-51. 

5.  Same — Waives  defects  in  specifications.    See  ABSENCE  FROM  STATION  AND  DUTY 

WITHOUT  LEAVE,  29;  ACCUSED,  56. 
(i.  Statement  of  accused— Inconsistent  with  his  plea  of  guilty.    See  STATEMENT  OF 

ACCUSED. 
7.  Waiver— Of  defects  by  plea  of  guilty.    See  G.  C.  M.  Rec.  21478a,  p.  11;  GUILTY,  5. 

GUILTY  KNOWLEDGE.    See  C.  M.  O.  129,  1898,  6. 

GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED. 

1.  "  Absence  from  station  and  duty  after  leave  had  expired  " — On  charge  of  "De- 

sertion."   C.  M.  O.  49,  1915,  11.    See  also  C.  M.  O.  53,  1914,  5. 

2.  "  Absence  from  station  and  duty  without  leave" — Charged  with  "Scandalous 

conduct  tending  to  the  destruction  of  good  morals"  and  found  guilty  of.  C.  M.  O. 
11,  1905,  2. 

3.  "  Assaulting  with  a  deadly  weapon  and  wounding  another  person  "—Found 

proved  except  "wilfully  and  maliciously"  and  "assault."    See  ASSAULT.  28. 

4.  Assault  and  striking,  charged  with— Court  found  proved  except  "maliciously" 

and  "assault."    See  ASSAULT,  28. 


GUILTY    IX   A    LESS    DEGREE    THAN    CHARGED.  273 

5.  ««  Being  under  the  influence  of  liquor  on  guard  "—As  a  less  degree  finding  upon 

charge  of  "Drunkenness  on  guard"  is  to  be  regarded  as  substantially  a  finding  upon 
the  charge  of  "Drunkenness  on  guard."  C.  M.  O.  209,  1901,  3.  But  see  C.  M.  O.  26, 
1905,  1.  See  also  GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  23. 

6.  "  Conduct  to  the  prejudice  of  good  order  and  discipline  " — Is  lesser  degree  of  the 

offense  of  "Assaulting  with  a  deadly  weapon  and  wounding  another  person  hi  the 
service."  File  26251-6151 : 3,  J.  A.  G.,  May  24,  1912. 

7.  Same — Is  a  lesser  degree  than  "Refusing  to  obey  the  lawful  order  of  his  superior  officer." 

C.  M.  O.  37,  1909,  3. 

NOTE.— Limitation  of  punishment  for  "Conduct  to  the  prejudice  of  good  order  and 
discipline"  has  since  been  raised  to  15  years,  etc. 

8.  "  Conniving  In  an  attempt  to  lay  plans  toward  the  escape  of  a  prisoner,  and 

not  representing  same  to  his  commanding  officer  " — Charged  with  "  Enticing 
a  prisoner  to  escape"  and  found  guilty  of.  C.  M.  O.  48,  1889. 

9.  Court  is  not  obliged  to  accept  plea— Court  is  not  obliged  to  accept  plea  of  guilty 

in  less  degree  than  charged,  out  may  proceed  to  try  for  charge,  and  all  matters  of 
evidence  relating  to  the  charge  and  specification  should  be  admitted  as  though  such 
plea  had  not  been  made.  However,  where  court  decides  to  proceed  with  trial  for  the 
greater  offense,  the  plea  of  guilty  in  less  degree  than  charged  should  be  rejected,  and 
the  accused  advisea  by  the  judge  advocate  to  substitute  plea  of  "Not  guilty,"  and  if 
he  desires  to  do  so,  the  court  shall  direct  the  trial  to  proceed  as  if  he  had  offered  the 
latter  plea,  thus  putting  the  prosecution  to  the  proof  of  every  allegation  contained 
in  the  specification.  File  9919-03,  Nov.  30,  1903.  But  see  C.  M.  O.  25,  1902,  1. 

10.  Same — Should  the  accused  plead  "guilty  in  a  less  degree  than  charged,"  the  president 

shall  warn  him  that  he  thereby  precludes  himself  from  the  benefits  of  a  regular  defense 
as  to  the  acts  confessed  by  such  plea.  (Forms  of  Procedure,  1910,  p.  22.)  See 
WARNING,  2. 

11.  Same — Save  in  exceptional  cases,  a  court-martial  should  try  the  accused  for  the  offense 

as  charged — The  court,  in  general,  should  reject  the  plea  of  "guilty  in  a  less  degree 
than  charged"  and  try  the  accused  for  the  offense  as  charged.  C.  M.  O.  22,  1903; 
8, 1905,  3;  37, 1909,  8;  14, 1910,  6;  30,  1910,  5;  1,  1911,  4;  10,  1912,  7;  26,  1912,  4;  16.  1913,  4. 

12.  "Culpable  inefficiency  in  the  performance  of  duty" — "Negligence  in  performance 

of  duty"  is  a  lesser  degree  of.    C.  M.  O.  12,  1910, 1;  14,  1912,  2;  4.  1913,  54. 

13.  Same— "  Negligent  in  obeying  orders"  is  a  lesser  degree  of.    C.  M.  O.  12,  1904,  3. 

14.  Same — Found  guilty  of  "  Inefficiency  in  the  performance  of  duty."    C.  M.  O.  5, 1906, 1. 

15.  "Culpable  negligence  and  Inefficiency  in  the  performance  of  duty" — Found 

guilty  of  "Neglect  of  duty."    C.  M.  O.  6,  1911,  3;  8,  1914,  2. 

16.  Same — Charged  with  "Culpable  inefficiency  in  the  performance  of  duty,"  found  guilty 

of  "Inefficiency  in  the  performance  of  duty."    C.  M.  O.  4,  1914,  2. 

17.  Desertion— In  case  the  charge  is  "Desertion"  and  the  accused  desires  to  admit  the 

offense  of  "Absence  from  station  and  duty  without  leave"  or  "Absence  from  station 
and  duty  after  leave  had  expired"  only,  the  proper  form  of  pleading,  if  the  facts  set 
forth  in  the  specification  are  true  except  as  to  intent  and  the  accused  desires  to  admit 
them  without  proof,  is  as  follows:  To  the  specification — Guilty  except  to  the  words 
"desert"  and  "in  desertion,"  and  to  those  words,  not  guilty;  and  for  the  excepted 
words  should  be  substituted,  respectively,  the  words  "absent  himself  without  leave" 
and  "so  absent"  and  to  such  words,  guilty.  To  the  charge — Guilty  in  a  less  degree 
than  charged,  guilty  of  "Absence  from  station  and  duty  without  leave"  or  "Absence 
from  station  and  duty  after  leave  had  expired." 

18.  Same — Upon  examination  of  the  record  of  proceedings  of  a  general  court-martial  in  the 

case  of  an  enlisted  man,  it  appears  that  the  accused  pleaded  as  to  the  specification 
of  .the  first  charge  "guilty  except  to  the  words  implying  desertion,  and  to  such  words 
not  guilty,"  and  to  the  first  charge  "guilty  in  a  less  degree  than  charged,  guilty  of 
absence  without  leave."  The  court  accepted  this  plea  and  then  proceeded  to  the 
examination  of  a  witness  to  prove  the  offense  of  desertion.  The  court  erred  in  accept- 
ing this  plea  and  yet  proceeding  with  the  trial  upon  the  charge  as  preferred.  When 
the  court  decided  to  proceed  with  the  trial  of  the  accused  for  the  greater  offense  of 
"Desertion,"  admissions  previously  made  in  his  plea  should  have  been  regarded  as 
withdrawn,  thus  putting  the  prosecution  to  the  proof  of  every  allegation  contained 
in  the  specification,  and  the  judge  advocate  should  then  have  advised  the  accused 
to  substitute  for  his  plea  that  of  "not  guilty,"  and  had  he  declined  to  do  so,  the  court 
should  have  directed  the  trial  to  proceed  as'if  he  had  offered  the  latter  plea.  C.  M.  O. 
13, 1903,  4. 


274  GUILTY   IN    A    LESS    DEGREE    THAN    CHARGED. 

19.  Same — The  court  should  not.  except  in  exceptional  cases,  accept  plea  of  guilty  in'  a 

less  degree  than  charged.    C.  M.  O.  22,  1903. 

20.  Same— Charged  with  "Desertion"  found  guilty  of  "Unauthorized  absence."    See 

GENERAL  ORDER  No.  110,  JULY  27,  1914.  8;  FINDINGS,  2. 

21.  Same— Charged  with  "Desertion" — Found  guilty  in  a  less  degree  than  charged.    See 

GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  1, 17, 18. 

22.  "Disobeying  the  lawful  order"  etc. — Charged  with,  and  found  guilty  of  "Failure  to 

obey  the  lawful  order,"  etc.    C.  M.  O.  3,  1912,  3. 

23.  "  Drunkenness  on  guard  " — "Being  under  the  influence  of  liquor  on  guard"  is  re- 

garded substantially  as  a  finding  upon.  C.  M.  O.  209,  1901,  3.  But  see  C.  M.  O.  20, 
1905,  1. 

24.  "Enticing  a  prisoner  to  escape"— Charged  with,  and  found  guilty  of  "Conniving 

in  an  attempt  to  lay  plans  toward  the  escape  of  a  prisoner,  and  not  representing  same 
to  his  commanding  officer."  C.  M.  O.  48,  1889. 

25.  "Failure  to  obey  the  lawful  order"  etc. — Found  guilty  of  when  charged  with  "Dis- 

obeying the  lawful  order,"  etc.    C.  M.  O.  3,  1912,  3. 

26.  "Improperly  hazarding  the  vessel  under  his  command,  In  consequence  of 

which  she  was  run  upon  a  shoal  and  seriously  injured" — Charged  with  and 
found  guil  ty  of  "  Improperly  hazarding  the  vessel  under  his  command,  in  consequence 
of  which  she  was  run  upon  a  shoal  and  injured."  C.  M.  O.  2, 1914,  2. 

27.  "Inefficiency  in  the  performance  of  duty"— Found  guilty  of  when  charged  with 

"Culpable  inefficiency  in  the  performance  of  duty."    C.  M.  O.  5, 1900, 1. 

28.  Judge  advocate— Should  not  advise  court  to  accept  plea  of  guilty  in  a  less  degree  than 

charged.    C.  M.  O.  29,  1914,  6-7.    See  also  JUDGE  ADVOCATE,  123,  124. 

29.  Kindred  nature — It  is  well  settled  that  a  court-martial  may  find  a  prisoner  guilty  in 

a  less  degree  than  charged,  but  this  is  only  in  cases  where  there  is  a  kindred  nature 
between  the  oflense  charged  and  the  offense  found  proved;  as,  for  instance,  between 
"Murder"  and  "  Manslaughter,"  or  between  "Desertion"  and  "Absence  from  station 
and  duty  without  leave."  G.  O.  68,  Dec.  6,  1805. 

30.  "Malingering"— Is  not  lesser  degree  of  "Refusing  to  obey  the  lawful  order  of  his 

superior  officer."    C.  M.  O.  37,  1909,  3. 

31.  Manslaughter — Found  guilty  on  charge  of  "Murder."    C.  M.  O.  12,  1911,  5. 

32.  "Murder"— Charged  with  and  found  guilty  of  "Manslaughter."    C.  M.  O.  12,  1911,  5. 

33.  "Neglect  of  duty" — Charged  with  and  found  guilty  of ' '  Remissness  in  the  performance 

of  duty."    C.  M.  O.  10,  1906;  1. 

34.  Same— Found  guilty  of  "  Violating  a  lawful  regulation,"  etc.,  when  charged  with 

"Neglect  of  duty."  (Returned  to  court  which  found  guilty  of  oflense  as  charged.) 
C.  M.  O.  9,  1913,  1. 

35.  Same — Found  guilty  of  "Neglect  of  duty"  on  a  charge  of  "Culpable  negligence  and 

inefficiency  in  the  performance  of  duty."    C.  M.  O.  6,  1911,  3. 

36.  "Neglect  of  duty  while  on  guard" — Charged  with  "Sleeping  on  guard"  and  found 

guilty  of.    C.  M.  O.  11,  1889. 

37.  "Neglecting  to  discharge  a  pecuniary  obligation"—  Charged  with  "Scandalous 

conduct  tending  to  the  destruction  of  good  morals"  and  found  guilty  of.  C.  M.  O. 
12, 1899,  3. 

38.  "  Negligence  In  performance  of  duty  "—Is  a  lesser  degree  of  "Culpable  inefficiency 

in  the  performance  of  duty."    C.  M.  O.  12,  1910,  1;  14,  1912,  2;  4,  1913,  54. 

39.  "Negligent  In  obeying  orders  "—Charged  with  "Culpable  inefficiency  in  the  per- 

formance of  duty"  and  found  guilty  of.    C.  M.  O.  12,  1901,  3. 

40.  Refusing  to  obey  the  lawful  order  of  his  superior  officer — Irregular  where  court 

found  accused  guilty  of  "Malingering"  on  a  charge  of  "Refusing  to  obey  the  lawful 
order  of  his  superior  officer."  It  would  have  been  proper  for  the  court  to  have  found 
the  accused  guilty  of  "Conduct  to  the  prejudice  of  good  order  and  discipline."  C.  M 
O.  37,  1909,  3. 

NOTE. — The  Limitations  of  punishment  for  "conduct  to  the  prejudice  of  good 
order  and  descipline"  has  been  increased  to  15  years. 

41.  "Remissness  in  the  performance  of  duty  "—Charged  with  "Neglect  of  duty"  and 

found  guilty  of.    C.  M.  O.  10,  1906,  1. 

42.  "Scandalous  conduct  tending  to  the  destruction  of  good  morals"— Charged 

with  and  found  guilty  of  "Absence  from  station  and  duty  without  leave."  C.  M.  O. 
11,  1905,  2. 

43.  Same — Charged  with  and  found  guilty  of  "Neglecting  to  discharge  a  pecuniary  obli- 

gation."   C.  M.  O.  12,  1899,  3. 


GUILTY   IN   A   LESS   DEGREE   THAN   CHARGED.  275 

44   "  Sleeping  on  guard  "—Charged  with  and  found  guilty  of  "Neglect  of  duty  while  oo 

guard."    C.  M.  O.  11,  1889. 
45.  Specifications — "Circumstances  which  are  embodied  in  the  charges  and  upon  which 

constructive  guilt  is  charged,  are  necessarily  dependent  upon  motive,  by  which  th» 


That  is.  a  portion  of  the  specification  may  be  found,  and  other  points  declared  void 
of  criminality,  or  the  entire  circumstances  set  forth  be  proved,  and  yet  the  prisoner 
be  declared  without  guilt."  (De  Hart,  p.  180.)  C.  M.  O.  5, 1912, 11.  See  also  FIND- 
INGS, 27. 

46.  "  Through  Inattention  and  negligence  suffering  a  vessel  of  the  Navy  to  be 

run  upon  a  shoal  and  seriously  Injured" — Charged  with,  and  found  guilty  of 
"Through  inattention  and  negligence  suffering  a  vessel  of  the  Navy  to  be  run  upon 
a  shoal  and  injured."  C.  M.  O.  2,  1914,  2. 

47.  "  Through  negligence  suffering  a  vessel  of  the  Navy  to  be  run  upon  a  reef  and 

stranded,"  and  found  guilty  of — "Through  negligence  due  to  error  of  judgment, 
suffering  a  vessel  of  the  Navy  to  be  run  upon  a  reef  and  stranded."  C.  M.  O.  29, 1903. 

48.  "  Unauthorized  absence  "—Charged  with  "Desertion"  found  guilty  of  "Unauthor- 

ized absence.     See  GENERAL  ORDER  No.  110,  JULY  27, 1914,  8;  FINDINGS,  2. 

49.  "  Violating  a  lawful  regulation,"  etc. — Found  guilty  of,  when  charged  with  "Neg- 

lect of  duty."  Returned  to  court  which  found  guilty  of  offense  as  charged.  C.  M.  O. 
9,  1913,  1. 

50.  "Willful  Injury"— Charged  with  "Willful  destruction"  and  court  found  "Willful 

injury"  proved  instead?    C.  M.  O.  37, 1912,  1. 

GUII/TY  BUT  WITHOUT  CRIMINALITY.    See  DESERTION,  77;  FINDINGS,  69. 

GUILTY  BUT  WITHOUT  CULPABILITY.  See  ABSENCE  FROM  STATION  AND  DUTY 
AFTER  LEAVE  HAD  EXPIRED,  9;  FINDINGS,  44;  File  26251-12159,  Sec.  Navy,  Oct  30, 
1916,  p.  4. 

GUN  POINTER. 

1.  Loss  of  pay — For  both  summary  courts-martial  and  deck  courts  should  be  based  upon 
the  actual  pay,  not  including  extras  for  mess  cook,  gun  pointer,  acting  coxswain,  etc. 
C.  M.  O.  24,  1909,  3. 

GUNBOATS. 

1.  Asiatic  station— Commander  in  chief  stated  he  did  not  wish  to  discourage  commanding 
officers  of  small  gunboats  of  Asiatic  Fleet  from  taking  such  risks  in  the  navigation  of 
the  rivers  on  which  they  are  employed  as  are  necessary  and  justifiable,  but,  on  the 
contrary,  desired  to  encourage  their  familiarizing  themselves  as  far  as  possible  with  all 
the  difficulties  of  navigation  they  might  be  called  upon  to  surmount.  C.  M.  O.  19, 
1910,  3.  See  also  NAVIGATION,  86, 88. 

'GUNBOAT  COMMISSIONS."    See  COMMISSIONS,  23,  29. 

GUNNERS. 

1.  Acting  gunner.    See  ACTING  GUNNER,  1. 

2.  Cheating  during  examination— Tried  by  general  court-martial  and  dismissed.    See 

BLOTTER,  1. 

3.  Command— Exercise  of.    See  COMMAND,  21. 

4.  Drunk  on  duty.    C.  M.  O.  7, 1879. 

5.  Gouging.    See  BLOTTER,  1. 

6.  Promotion— To  ensign.    See  APPOINTMENTS,  18.  , 

7.  Theft.    C.  M.  O.  8, 1879. 

HABEAS  CORPUS.    See  also  FRAUDULENT  ENLISTMENT;  JURISDICTION. 

1.  Appeals.    See  HABEAS  CORPUS,  18. 

2.  Arrest  of  petitioner— After  discharge — An  enlisted  man  discharged  on  habeas  corpus 

proceedings  was  afterwards  arrested  on  charge  of  "Perjury,"  in  connection  with 
sworn  statements  when  enlisting,  and  held  for  trial  in  civil  courts  of  the  United  States 
at  the  instance  of  the  department.  (File  5939-1,  Oct.  12,  1906.)  Later  prosecution 
was  discontinued  because  of  the  peculiar  circumstances  of  hardship  it  involved,  the 
Secretary  of  the  Navy  concurring  in  the  United  States  attorney's  action  to  this 
effect.  (File  5939-7,  Feb.  18,  1907.)  See  also  U.  S.  v.  Churg  Shee,  71  Fed.  Rep.  277. 

3.  Charges  and  specifications— Sufficiency  of  can  not  be  reviewed.   (Ex  parte  Dickey, 

204  Fed.  Rep.  322.) 


276  HABEAS    CORPUS. 

4.  Contempt  of  civil  court — Enlisted  man  failing  to  make  a  return  to  writ  of  habeas 

corpus.    See  CIVIL  AUTHORITIES,  11. 

5.  Desertion.    See  DESERTION;  HABEAS  CORPUS,  16. 

6.  Drunk  at  time  of  enlistment — An  enlisted  man  arrested  by  a  civil  officer  as  a  de- 

serter from  the  Navy  will  not  be  discharged  on  habeas  corpus  upon  the  allegation  that 
he  was  intoxicated  at  the  time  of  enlistment.  "It  seems  to  me  illogical  to  say  that  a 
man  can  commit  a  crime  and  when  arrested  obtain  a  discharge  on  the  ground  that  the 
original  enlistment  was  not  regular  or  proper."  (In  re  Hamilton  and  Carroll,  Superior 
Court,  Fulton  County,  Ga.,  Atlanta  Circuit,  File  7969-04;  7988-04.  See  also  In  re 
McVey,  23  Fed.  Rep.  878;  In  re  Grimley,  137  U.  S.  147.) 

7.  Errors  in  procedure — Can  not  be  reviewed  by  civil  courts.    (In  re  McVey,  23  Fed. 

Rep.  878). 

8.  Federal  Courts.    See  GENERAL  ORDER  No.  121.  SEPT.  17,  1914,  11. 

9.  Fraudulent  enlistment— Concealing  discharge  obtained   by  habeas  corpus  pro- 

ceedings.   See  FRAUDULENT  ENLISTMENT,  17. 

10.  Same — De  facto  enlistment — A  fraudulent  enlistment  is  an  enlistment  and  subject 

to  jurisdiction  of  naval  courts-martial.    See  FRAUDULENT  ENLISTMENT,  22,  35. 

11.  Same — Drunk  when  enlisting.    See  HABEAS  CORPUS,  6. 

12.  Ineffective  though  discharged.    See  JURISDICTION. 

13.  Judge  advocate — Present  in  closed  court.    See  JUDGE  ADVOCATE,  105. 

14.  Military  guard— Charged  with  "Manslaughter."  (U.  S.  v.  Lipsett,  156  Fed.  Rep.  71; 

U.  S.  v.  Clark,  31  Fed.  Rep.  710).    See  MANSLAUGHTER,  9. 

15.  Minors — Fraudulently  enlisting  by  misrepresenting  age,  can  not  set  up  their  fraud  as 

a  defense  and  civil  courts  will  not  interfere.    See  FRAUDULENT  ENLISTMENT,  57,  60. 

16.  Same— An  enlisted  man  on  his  trial  for  "Desertion" — Admitted  all  the  facts  as  to  deser- 

tion and  the  evidence  showed  that  he  was  enlisted  when  only  10  years  of  age  without 
his  parents'  consent  or  knowledge.  The  accused  contended  that  his  enlistment 
was  illegal  and  void.  Such  a  man  if  found  guilty  and  sentenced  would  not  be  released 
on  habeas  corpus  proceedings.  C.  M.  O.  217,  1902,  3-4. 

17.  Officer— Acting  as  counsel  for  accused  should  not  institute  habeas  corpus  proceedings 

or  a  suit  for  damages  against  members.    File  84f>4-03.    See  also  COUNSEL,  29,  36. 

18.  Opinion — Of  the  court  should  be  forwarded  to  Judge  Advocate  General — The  Forms  of 

Procedure,  1910,  page  76,  provides: "  Should  the  court  order  the  discharge  of  the  party, 
the  officer  making  the  return,  or  counsel,  should  note  an  appeal  pending  instructions 
from  the  Navy  Department,  and  he  shall  report  to  the  Judge  Advocate  General  of 
the  Navy,  the  action  taken  by  the  court  and  forward  a  copy  of  the  opinion  of  the  court 
as  soon  as  it  can  be  obtained." 

The  above  instructions,  which  "have  full  force  and  effect  as  regulations"  (Navy 
Regulations,  1913,  R-901  (3), )  should  be  followed  strictly  in  every  case  in  which  a  de- 
cision adverse  to  the  United  States  is  rendered  in  habeas  corpus  cases.  File  26251- 
9965:21,  J.  A.  G.,  Oct.  4,  1915;  C.  M.  O.  35,  1915,  9. 

19.  Procedure,  errors  in.    See  HABEAS  CORPUS,  7. 

20.  Review  of  courts-martial  by  civil  courts.    See  JURISDICTION,  18,  28, 35^-39. 

21.  Sentences— If  sentence  imposed  is  not  legally  void  civil  courts  will  not  review. 

22.  Service  of  writs.— See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  11,  12. 

23.  State  courts.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914,  12. 

HAGUE  CONFERENCE.    See  RETIRED  OFFICERS,  38. 
HAIR  OF  PRISONERS  CLIPPED.    See  PRISONERS,  4. 

HAITI. 

1 .  Captains  of  the  port — Detail  of  chief  pay  clerks  and  pay  clerks.    File  5460-84,  Aug.  16, 

1916. 

2.  Collectors  of  custom— Detail  of  chief  pay  clerks  and  pay  clerks.    File  5460-84,  Aug.  16, 

1916. 

3.  Enlisted  man— Tried  by  general  court-martial  for  offense  committed  while  on  shore 

duty.    C.  M.  O.  10,  1915,  3.    See  also  C.  M.  O.  49,  1915,  12. 

4.  Gendarmerie.    See  OFFICERS  OF  THE  UNITED  STATES,  1. 

5.  General  court-martial— Convening  of,  on  foreign  territory.    C.  M.  0. 42, 1915, 10.    See 

also  C.  M.  O.  48,  1915;  JURISDICTION,  53. 

6.  Loss  of  property — Claim  of  the  director  general  of  the  Haitien  Wharf  Company  for 

certain  packages  claimed  to  have  been  lost  by  said  company  during  the  landing 
of  U.  S.  Naval  Forces  at  Port-au-Prince,  Haiti,  on  or  about  August  13,  1915.  File 
26893-206,  Sec.  Navy,  Nov.  16,  1915. 


HAITI.  277 

7.  Military  commissions.    See  MILITARY  COMMISSIONS;  PROVOST,  1. 

8.  Officer — Tried  by  general  court-martial  at  Marine  Barracks,  La  Caserne,  Port-au-Prince, 

Haiti.    C.  M.  O.  48,  1915.    See  also  C.  M.  O.  42,  1915,  10. 

9.  Pay  clerks,  etc.— On  duty  in  Haiti.    C.  M.  O.  30,  1916,  8. 
10.  Provost.    See  MILITARY  COMMISSIONS;  PROVOST,  1. 

HALF-WITTED.    C.  M.  O.  49,  1910,  17.    See  also  INSANITY,  19. 

HANDWRITING. 

1.  Acquittal — Should  be  recorded  in  handwriting  of  judge  advocate.    See  ACQUITTAL,  17. 

2.  Expert  witness.    See  EXPERT  WITNESSES,  3. 

3.  Findings — To  be  in  handwriting  of  judge  advocate.    See  FINDINGS,  48-50;  JUDGE  AD- 

VOCATE, 81. 

4.  Genuineness  of.    See  HANDWRITING,  6. 

5.  Identification  of — Handwriting  of  accused  to  prove  him  guilty  of  "Theft."    C.  M.  O.  1, 

1913,  6. 

6.  Proof  of— In  any  proceeding  before  a  court  or  judicial  officer  of  the  United  States  where 

tLo  genuineness  of  the  handwriting  of  any  person  may  be  involved,  any  admitted  or 
proved  handwriting  of  such  person  shall  be  competent  evidence  as  a  basis  for  compari- 
son by  witnesses,  or  by  the  jury,  court,  or  officer  conducting  such  proceeding,  to  prove 
or  disprove  such  genuineness.  (Act,  Feb.  26,  1913,  37  Stat.  683.) 

7.  Sentences— To  be  in  handwriting  of  judge  advocate.    See  SENTENCES,  52. 

8.  Same — In  revision — To  be  in  handwriting  of  judge  advocate.    See  REVISION,  18,  33-36; 

SENTENCES,  92. 

9.  Same— Not  to  be  typewritten.    G.  C.  M.  Rec.  22105;  22149. 

HANGAR,  DIRIGIBLE.    See  File  26842-8:4,  Sec.  Navy,  July  15,  1916. 

HARD  LABOR. 

1.  Conflnement-^In  all  cases  where  the  limitations  of  punishment  for  general  courts- 

martial  provide  for  confinement,  hard  labor  during  such  confinement  shall  be  included. 
(R-900  (8).)  See  also  CONFINEMENT.  16. 

2.  Extra  police  duties — All  sentences  01  general  court-martial  involving  confinement 

should  contain  a  provision  that  such  confinement  shall  be  at  hard  labor  instead  of 
involving  the  performance  of  extra  police  duties.  C.  M.  O.  6,  1909,  2;  42,  1909,  6;  47, 
1910,  4.  See  also  CONFINEMENT,  17. 

3.  Same — Where  a  court-martial  sentenced  an  accused  to  confinement  at  hard  labor  and 

also  adjudged  extra  police  duties  the  department  remitted  the  performance  of  extra 
police  duties  stating  in  part,  the  inclusion  of  extra  police  duties  "being  manifestly 
inappropriate,  as  its  execution  in  conjunction  with  confinement  at  hard  labor  would 
be  both  unnecessary  and  impracticable."  C.  M.  O.  46, 1902,  1. 

4.  Mandatory— Sentences  of  general  courts-martial  including  confinement  shall  contain 

a  provision  requiring  that  the  person  sentenced  shall  perform  hard  labor  while  so 
confined.  C.  M.  O.  47,  1910,  4;  23,  1912,  4;  G.  C.  M.  Rec.  21161;  22745. 

5.  Officers— Imprisonment  of  dismissed  officer  in  a  penitentiary  at  hard  labor.    C.  M.  O. 

173,  1902;  50,  1914.  See  also  CONFINEMENT,  18.  See  also  C.  M.  O.  10,  1916,  where 
a  Paymaster's  Clerk,  U.  S.  M.  C.,  was  sentenced  to  confinement  in  a  prison  or 
penitentiary  without  hard  labor. 

6.  Same— Officer  confined  in  penitentiary  without  hard  labor.    C.  M.  O.  15,  1908.  3. 

7.  Pay  clerk— A  pay  clerk  was  sentenced  by  general  court-martial  to  be  dismissed  and 

Imprisonment  at  hard  labor.  Since  the  Limitation  of  Punishment  did  not  provide 
for  hard  labor  for  the  offense  of  which  the  accused  had  been  convicted,  the  department 
remitted  that  part.  C.  M.  O.  173,  1902. 

"  HAULING  FIRES."    C.  M.  O.  37,  1915. 

HAVING  LIQUOR  IN  HIS  POSSESSION. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  63, 1892;  64, 1892. 

HAWAH. 

1.  Citizenship.    See  CITIZENSHIP,  21. 

2.  Customs— Right  of  a  collector  of  customs  to  enter  upon  a  naval  reservation  without 

assent  of  commandant.    File  3312-04,  3377-04,  J.  A.  G.,  Apr.  14,  1904. 

3.  General  Order  121.    See  GENERAL  ORDER  No.  121,  SEPT.  17, 1914, 13. 

4.  Woman— Chief  carpenter  tried  by  general  court-martial  for  improper  relations  with  a 

Hawaiian  woman.    C.  M.  O.  21, 1915. 


278  HAZING. 

HAZING.    See  also  MIDSHIPMEN. 

1.  "Board  of  Inquiry"— Finding  by— As  to  the  issues  of  fact.    See  "BOARD  OF  IN- 

QUIRY," 1;  HAZING,  6. 

2.  "Brutal"  hazing — "Court-martial"  may  adjudge  imprisonment.    See  HAZING,  6. 

3.  "Court-martial"— Of  midshipmen— Discretion  of  superintendent  and  "approval"  of 

Secretary  of  the  Navy.    See  HAZING,  (i:  MIDSHIPMEN,  27. 

4.  Same— Co'm posed  of  "not  less  than  three  commissioned  officers."    C.  M.  0. 31, 1915, 11. 

See  also  HAZING,  6;  MIDSHIPMEN,  27. 

5.  "  Cruel  "  hazing— "Court-martial "  may  adjudge  imprisonment.    C.  M.  0. 31, 1915, 11. 

6.  Defined  and  discussed— The  policy  of  Congress  is  to  leave  the  internal  administra- 

tion and  discipline  of  the  Naval  Academy  largely  in  the  hands  of  the  officials  at  the 
Academy. 

In  this  respect,  no  distinction  is  made  by  existing  law  between  hazing  and  other 
offenses  committed  by  midshipmen  against  good  order  and  discipline,  except  that 
no  midshipman  may  be  dismissed  for  a  single  act  of  hazing  without  trial  by  "court- 
martial." 

No  midshipman  is  to  be  tried  by  "court-martial"  for  hazing,  except  in  the  "dis- 
cretion" of  the  Superintendent  and  with  the  "approval"  of  the  Secretary  of  the 
Navy. 

The  "court-martial "  is  to  be  ordered  by  the  Superintendent  of  the  Naval  Academy, 
in  cases  of  hazing,  and  is  to  be  composed  of  "not  less  than  three  commissioned  officers. " 

The  "court-martial"  has  discretion  as  to  the  sentence  to  be  imposed  upon  con- 
viction. While  it  may  sentence  the  accused  to  dismissal  in  any  case,  and  to  imprison- 
ment also  in  cases  of  "brutal  or  cruel"  hazing,  it  is  not  mandatory  to  impose  a  sentence 
of  dismissal  or  imprisonment  in  any  case. 

The  "court-martial's"  finding  and  sentence  are  subject  to  review  by  the  convening 
authority  and  the  Secretary  of  the  Navy,  "as  in  the  cases  of  other  courts-martial." 
Although,  perhaps,  not  necessary,  it  is  advised  that  a  sentence  of  suspension  or  dis- 
missal be  submitted  to  the  President  for  confirmation. 

If  the  Superintendent  does  not  desire  to  bring  midshipmen  to  trial  for  hazing,  then 
under  the  law  no  trial  may  be  had,  but  the  offense  may  oe  dealt  with  by  the  Superin- 
tendent without  the  intervention  of  a  "court-martial."  In  that  event,  no  midship- 
man could  be  dismissed  for  hazing  except  upon  written  charges  by  the  Superintendent, 
an  opportunity  for  written  reply  by  the  accused,  a  finding  by  a  "board  of  inquiry" 
as  to  the  issues  of  fact,  and  a  decision  by  the  Secretary  of  the  Navy  to  dismiss  the 
accused,  which  decision  must  have  the  "written  approval  of  the  President." 

Proceedings  for  dismissal  without  trial  by  "court-martial"  can  not  behad  for  "a  sin- 
gle act  of  hazing."  The  accused  in  such  case  must  either  be  tried  by  "court-martial" 
or  punished  otherwise  than  by  dismissal.  The  words  "a  single  act  of  hazing"  are 
to  be  taken  in  their  literal  sense.  If  an  accused  was  guilty  of  but  one  "act"  of  hazing, 
he  can  not  be  dismissed  without  trial  by  "court-martial,"  notwithstanding  that 
several  different  persons  may  have  been  victims  of  the  "single  act."  Thus,  one  order 
obeyed  by  several  midshipmen  would  be  only  a  single  "act"  of  hazing,  although  it 
might  legally  be  more  than  one  "offense."  On  the  other  hand,  if  one  midshipman, 
in  hazing  another,  gives  several  orders  which  are  obeyed,  this  would  constitute 
several  "acts"  of  hazing  although  there  was  only  one  victim  and  the  several  distinct 
transactions  occurred  at  the  same  place  and  very  near  each  other  in  one  continuing 
attempt  to  defy  the  law.  (In  connection  with  the  above  conclusions  see  act  of  June 
23,  1874,  18  Stat.  203;  act  of  Mar.  2, 1895,  28  Stat.  838;  act  of  Mar.  3,  1903,  32  Stat.  1198; 
act  of  Apr.  9,  190*i,  34  Stat.  104.)  File  21.283-925,  J.  A.  G.,  Sept.  4,  1915;  C.  M.  O. 
31,  1915,  10-12.  See  also  File  5252-43,  J.  A.  G.,  Oct.  5,  1911.  For  the  act  of  Apr.  9, 
1906  (34  Stat.  104),  see  14  J.  A.  G.  100. 

7.  Midshipman— Charged  with.    C.  M.  O.  12,  1913,  1-3;  G.  C.  M.  Rec.  25933  (1912). 

In  the  fall  of  1885,  a  cadet  at  the  Naval  Academy  was  dismissed  after  trial  by  court- 
martial,  for  the  offense  of  hazing  (see  39  Executive  Let.  Book,  207).  Subsequently, 
however,  he  was  restored  to  the  Naval  Academy,  it  having  been  shown  that  his  offense 
consisted  in  maltreating  a  candidate  for  admission  to  the  Academy  who  had  not  at 
that  time  entered  the  fourth  class,  but  was  a  visitor  in  the  Academy  grounds,  and  that 
such  conduct  was  not  "the  offense  commonly  known  as  hazing"  within  the  meaning 
of  the  act  of  June  23,  1874  (18  Stat.  203).  File  10310-04,  J.  A.  G.,  Jan.  12,  1905.  See 
also  18  Op.  Atty.  Gen.  292. 

Midshipmen  dismissed  under  the  act  of  June  23,  1874  (18  Stat.  203).  Act  of  Mar.  3, 
1903  (32  Stat.  1198)  construed  with  reference  to  the  foregoing  statute.  File  8585-04, 
J.  A.  G.,  Oct.  13,  1904. 


HAZING.  279 

8.  Naval  Academy,  at.    See  HAZING,  6. 

9.  Powers  of  Secretary  of  Navy— To  dismiss.    See  MIDSHIPMEN,  80. 

10.  Reappointment  of  midshipman  dismissed  for  hazing.    See  MIDSHIPMEN,  5,  70. 

11.  "Stogie  act  of  hazing"— No  dismissal  without  trial  by  "court-martial."    See  HAZING, 

6. 

12.  Same — May  be  punished  otherwise  than  by  dismissal  if  no  "court-martial."    See 

HAZING,  6. 

13.  Same— The  words  "a  single  act  of  hazing"  are  to  be  taken  in  their  literal  sense.    See 

HAZING,  6. 

HEALTH  RECORD.    See  C.  M.  O.  42, 1915,  2;  File  4778-95,  Sec.  Navy,  Dec.  9, 1916. 

«•  HEREAFTER." 

1 .  Statutes — While  the  word  "hereafter  "  used  in  the  provisions  contained  in  appropriation 
acts  is  commonly  indicative  of  permanent  legislation,  other  language  may  have  the 
same  effect,  where  the  purpose  is  clear.  File  5942-192,  Sec.  Navy,  March  12,  1915; 
C.  M.  O.  12,  1915,  12.  See  aZso  Memo.  J.  A.  G.,  March  5,  1915. 

HERNIA. 

1.  Operation  for— Not  compellable.    See  SURGICAL  OPERATIONS,  3,  6. 

HEROISM. 

1.  Officers— Promotions.    See  PROMOTION. 

HEARSAY  EVIDENCE. 

1.  Certificate  of  civil  officer  as.    See  CERTIFICATES,  3-5. 

2.  Court. — Criticized  for  admitting  evidence,  which  was  clearly  hearsay,  over  the  objection 

of  counsel  for  the  accused.  C.  M.  O.  41, 1909, 1.  Seealso  C.  M.  0. 65, 1907;  17, 1910, 11; 
21,  1910,  16;  7,  1911,  9;  11,  1912,  2;  98,  1894,  2;  57,  1897,  2;  54,  1898;  19,  1915.  4. 

3.  Defined  and  discussed — The  accused  was  charged  with  "  Desertion"  and  pleaded  not 

guilty  to  the  charge  and  specification  thereof.  While  a  witness  on  the  stand  in  his 
own  behalf  he  testified  that  he  left  the  service  in  order  to  go  to  North  Wales  for  the 
purpose  of  claiming  an  inheritance  left  him  upon  the  recent  death  of  his  mother,  and 
that  he  intended  returning  to  the  United  States  and  to  the  Marine  Corps  as  soon  as  he 
might  be  able  to  adjust  his  affairs  in  North  Wales.  It  is  observed  that  he  was  asked 
the  following  question  by  the  court: 

"34.  Q.  Have  you  in  your  possession  any  papers  to  substantiate  the  evidence  you 
have  given? 

"A.  I  have  one  here  that  is  not  much,  but  it  will  give  some  light  on  the  subject." 

The  judge  advocate  objected  to  the  introduction  in  evidence  of  the  "paper"  in 
question  on  the  ground  that  it  was  not  subject  to  cross-examination,  but  the  record 
shows  that  the  court  overruled  the  objection  and  admitted  the  paper  in  evidence. 
This  "paper"  was  a  letter  addressed  to  the  accused.  In  the  opinion  of  the  depart- 
ment the  court  erred  in  its  ruling  upon  the  objection  interposed  by  the  judge  advocate. 
As  stated  by  the  Judge  advocate  in  his  objection,  the  paper  was  not  subject  to  cross- 
examination  and  its  admission  was  a  clear  violation  of  the  rule  against  the  admission 
of  hearsay  evidence.  As  stated  in  Greenleaf  in  his  work  on  Evidence,  sixteenth 
edition,  Volume  I,  pages  182  and  183: 

"The  term  'hearsay'  is  used  with  reference  to  that  which  is  written,  as  well  as  to 
that  which  is  spoken,  and  in  its  legal  sense  it  denotes  that  kind  of  evidence  which  does 
not  derive  its  value  solely  from  the  credit  to  be  given  to  the  witness  himself,  but 
rests  also  in  part  on  the  veracity  and  competency  of  some  other  person.  Hearsay 
evidence  as  thus  described  is  uniformly  held  incompetent  to  establish  any  specific 
fact  which  in  its  nature  is  susceptible  of  being  proved  by  witnesses  who  can  speak 
from  their  own  knowledge.  That  this  species  of  testimony  supposes  something  better 
which  might  be  adduced  in  the  particular  case  is  not  the  sole  ground  of  its  exclusion. 
Its  extrinsic  weakness,  its  incompetency  to  satisfy  the  mind  as  to  the  existence  of  the 
fact,  and  the  frauds  which  may  be  practiced  under  its  cover  combine  to  support  the 
rule  that  hearsay  evidence  is  totally  inadmissible. 

"Hearsay  rule,  then,  is  encountered  whenever  a  testimonial  assertion  is  offered  in 
evidence  without  being  subjected  to  oath  and  cross-examination.  Thus  three  dis- 
tinct groups  of  questions  present  themselves  in  connection  with  the  hearsay  rule, 
viz,  (a)  Is  the  hearsay  rule  applicable  to  the  case  in  hand,  i.  e.,  is  the  evidence  offered 
as  a  testimonial  assertion?  (6)  Is  there  any  exception  to  the  hearsay  rule  to  be  made 
for  the  evidence  offered?  (c)  If  the  hearsay  rule  is  applicable,  and  if  no  recognized 


280  HEARSAY    EVIDENCE. 

exception  covers  the  case  in  hand,  is  the  hearsay  rule  satisfactory,  i.  e.,  has  there  been 
in  fact,  an  oath  and  cross^xamination?  The  first  of  these  groups  of  questions  is 
treated  in  the  ensuing  sections  100-114;  the  second  in  sections  114a  to  162;  the  third. 
in  sections  163  to  168." 

While  it  is  true  that  there  are  real  and  apparent  exceptions  to  the  hearsay  rule,  the 
case  under  discussion  does  not  fall  within  either  of  the  classes  of  exceptions.  Courts- 
martial  are  bound,  in  general,  to  observe  the  rules  of  the  law  of  evidence  by  which  the 
United  States  courts  of  criminal  jurisdiction  are  governed  (Forms  of  Procedure, 
1910,  p.  135),  and  neither  the  letter  in  question  nor  the  second  letter  which  the  court 
permitted  the  accused  subsequently  to  introduce  should  have  been  admitted.  It 
is  to  be  noted,  however,  that  the  judge  advocate  did  not  object  to  the  introduction 
of  the  second  letter.  C.  M.  O.  30,  1912,  3-5.  See  also  C.  M.  O.  17,  1910,  12;  File 
26251-9019,  Sec.  Navy,  May  21,  1914. 

4.  Same— Greenleaf  states  that  hearsay  evidence  is  "  That  form  of  evidence  which  does 

not  derive  its  value  solely  from  the  consideration  to  be  given  to  the  witness  himself, 
but  rests  in  part  on  the  veracity  and  competency  of  some  other  person." 

Hearsay  evidence  is  objectionable,  (1)  because  it  is  secondary  evidence  and  the  law 
requires  primary  evidence;  (2)  the  real  witness  is  not  testifying  in  court  under  the 
sanction  of  an  oath;  and  (3)  the  opposite  party,  and  especially  the  defendant  in  a 
criminal  case;  has  no  opportunity  to  be  confronted  with  a  witness  against  him,  or 
to  exercise  his  right  of  cross-examination.  There  are,  of  course,  exceptions  to  this 
rule  of  exclusion;  and  again  there  are  some  exceptions  which,  upon  examination,  will 
be  found  to  relate  to  relevant  facts  and  to  be,  as  such;  not  liable  to  objection  as  hearsay. 
Thus,  where  the  question  at  issue  is  whether  certain  words  were  actually  spoken  by 
a  person  other  than  the  witness,  a  recital  of  the  words  by  the  witness  is  original  tes- 
timony and  admissible. 

The  principal  exceptions  to  the  inadmissibility  of  hearsay  evidence  are:  (1)  Con- 
fessions or  admissions  against  interest;  (2)  dying  declarations;  (3)  res  gestae.  (Forms 
of  Procedure,  1910,  p.  138.) 

5.  Example  of — A  witness  was  permitted  to  testify  to  a  statement  made  to  him  by  the 

corporal  of  the  guard  to  the  effect  that  the  accused  had  been  stationed  as  orderly 
at  the  cabin  door,  which  statement  was  not  made  in  the  presence  of  the  accused. 
C.  M.  O.  97,  1898.  See  also  G.  C.  M.  Eec.  30485,  pp.  78,  178-180  683;  DESERTION, 
111  (p.  178). 

6.  Same— In  general  court-martial  proceedings  against  commanding  officer  of  U.  S.  S. 

Culgoa  for  collision  with  a  schooner,  testimony  was  admitted  to  the  effect  that  "it 
was  a  matter  of  common  report  on  the  Culgoa  subsequent  to  the  collision  with  the 
'  Wilson  &  Hunting '  that  the  latter  was  in  the  habit  of  having  her  lights  ready  but  not 
lit."  Held:  That  this  testimony  should  have  been  excluded  as  hearsay.  C.  M.  O. 
38,  1905,  2-3. 

7.  Same— During  the  direct  examination  of  the  first  witness  for  the  prosecution,  he  testified 

to  statements  made  to  him  by  a  sentry  soon  after  the  escape  of  the  accused  from  the 
ship  (one  of  the  offenses  with  which  he  was  charged).  This  testimony  was  properly 
objected  to  by  the  counsel  for  the  accused  as  being  hearsay,  but  the  court  overruled 
the  objection  and  permitted  the  introduction  of  said  evidence.  This  decision  was 
entirely  erroneous,  but  it  did  not  result  in  injury  to  the  accused,  as  the  sentry  referred 
to  was  subsequently  called  as  a  witness,  and  substantially  the  testimony  in  question 
was  given  by  him.  C.  M.  O.  74,  1903,  1. 

8.  Same— The  record  discloses  no  substantial  defense.    The  direct  and  positive  evidence 

adduced  for  the  prosecution  stands  uncontradicted  except  in  one  particular,  the 
exception  referred  to  being  the  admission  by  the  court  of  the  testimony  of  a  reporter 
on  the  Providence  Journal,  who  stated  that  one  member  of  the  firm  of  *  *  *  had 
told  him  (the  witness)  that  the  firm  had  paid  no  commissions  to  the  accused.  This 
evidence  was  objected  to  by  the  judge  advocate,  very  properly,  upon  the  ground  that 
it  was  hearsay.  Its  admission  by  the  court,  however,  does  not  constitute  material 
error,  since  in  so  far  as  it  had  weight,  it  was  in  favor  of  the  accused.  C.  M.  O.  69 
1903,2. 

9.  Same — The  court  erred  when  it  asked  a  witness  to  repeat  unsworn  statements  made  to 

him  (during  his  investigation),  by  another  witness  who  had  been  before  the  court  and 
testified  for  the  prosecution.    C.  M.  O.  19,  1915,  4. 
10.  Statements  in  presence  of  accused.    See  ACCUSED,  58;  DESERTION,  123,  125. 


HOSPITAL   FUND.  281 

HIRE. 

1.  Definition — The  term  "hire"  has  application  to  the  more  menial,  manual,  or  mechanical 
employments,  and  commonly  implies  employment  for  short  periods,  as  a  day  or  a 
week;  and  is  distinguished  from  the  word  "salary,"  in  that  the  latter  has  reference 
to  the  more  mental  forms  of  employment  and  implies  greater  permanence  of  employ- 
ment and  payment  at  long  intervals.  Hire  is  more  on  the  plane  of  wages  than  of 
salary  though  in  a  sense  it  comprehends  both.  (2  W.  &  P.  (2d  ed.)  888).  File  4924- 
435,  J.  A.  G.,  June  20,  1916. 

HOLIDAY. 

1.  Court — May  not  adjourn  over  holiday  without  permission.    See  ADJOURNMENT  OF 

COURTS-MARTIAL. 

HOMESTEAD  ENTRY. 

1.  Information  concerning.    See  File  5166-6  (1907). 

HOMICIDE.    See  MANSLAUGHTER;  MURDER. 

"HOMICIDE  BY  MISADVENTURE."    See  MANSLAUGHTER,  12, 13. 

HONOR. 

1.  "Code  of  honor"  In  military  life— "In  military  life  there  is  a  higher  code  termed 
honor,  which  holds  its  society  to  stricter  accountability;  and  it  is  not  desirable  that 
the  standard  of  the  Army  [Navy]  shall  come  down  to  the  requirements  of  a  criminal 
code."  (Swaim  v.  U.  S.,  28  Ct.  Cls.  173.)  See  G.  C.  M.  Rec.  30485,  p.  767;  CON- 
DUCT UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  12. 

HONORS. 

1.  Acting  governor  of  Guam.    See  GUAM,  1. 

"HONORABLY  ACQUIT."    See  ACQUITTAL,  18. 

HONORABLE  DISCHARGE. 

1.  Blanks— Stolen.    File  26283-977. 

2.  Same— Sale  of.    File  26509-163:2,  July,  1916. 

3.  De  facto  enlistment  having  been  served— When  not  regularly  enlisted,  a  man  is 

nevertheless  entitled  to  an  honorable  discharge  where  he  serves  out  a  de  facto  enlist- 
ment. File  5839-04,  J.  A.  G.  See  also  DE  FACTO,  2. 

HOPE. 

1.  Confessions    See  CONFESSIONS,  16. 

HOSPITALS. 

1.  Army— Enlisted  men  of  naval  service  under  treatment  in.    See  File  2642-03. 

2.  Commanding  officers  of  naval  hospitals— Punishments  by— When  so  empowered 

by  the  Secretary  of  the  Navy  to  order  summary  courts-martial,  the  commanding 
officer  of  a  naval  hospital  or  hospital  ship  shall  be  empowered  to  order  such  courts 
and  deck  courts,  and  inflict  the  punishments  which  the  commander  of  a  naval  vessel 
is  authorized  by  law  to  inflict,  upon  all  enlisted  men  of  the  naval  service  attached 
thereto,  whetheV  for  duty  or  as  patients.  (Act,  Aug.  29,  1916,  39  Stat.  586.)  See  C.  M. 
O.  30, 1916. 

3.  Deck  courts— Convening  of,  at.    See  DECK  COURTS,  10, 14;  HOSPITALS,  2;  SUMMARY 

COURTS-MARTIAL,  21,  22. 

4.  Fund.    See  HOSPITAL  FUND. 

5.  Government  Hospital  for  the  Insane.    See   GOVERNMENT  HOSPITAL  FOR  THE 

INSANE. 

6.  Patients — Punishment  of.    See  HOSPITALS,  2. 

7.  Punishments — By  commanding  officers.    See  HOSPITALS,  2. 

8.  Summary  courts-martial — Convening  of,  at.    See  HOSPITALS,  2;  SUMMARY  COURTS- 

MARTIAL,  21,  22. 

HOSPITAL  APPRENTICES. 

1.  Clothing  outfits  for.    See  CLOTHING  OUTFITS,  1. 

HOSPITAL  FUND. 

1.  Checkage  of  2O  cents  per  month— For  support  of  hospital  fund  is  authorized  by 
Sections  1624,  4808,  Revised  Statutes.  File  3980-452 :2,  J.  A.  G.,  Dec.  8,  1909.  p.  6; 
22465-5,  J.  A.  G.,  Sept.  30, 1915. 


282  HOSPITAL   FUND. 

2.  Same — 20  cents  per  month  is  credited  to  hospital  fund  if  person  is  tinder  sentence  of 

general  court-martial  to  forfeit  pay.  (45  8.  and  A.  Memo.  662;  58  S.  and  A.  Memo. 
42;  106  S.  and  A.  Memo,  1305.) 

3.  Same — Can  not  be  made  if  no  pay  is  earned.    (116  S.  and  A.  Memo.  3475.)    File  22465-5. 

J.  A.  G.,  Sept.  30,  1915. 

4.  Expenditure— History  of.    See  14  Comp.  Dec.  602;  121  S.  and  A.  Memo.  1697. 

5.  Fleet  Naval  Reserve— File  28350-23,  p.  2, 

6.  Naval  auxiliary  service— "Deductions"  can  not  be  made  where  person  is  under  treat- 

ment for  venereal  disease,  no  pay  being  earned.  (See  Regulations  for  the  Naval 
Auxiliary  Service,  1914,  pars.  109,  95.)  File  22465-5,  J.  A.  G.,  Sept.  30, 1915. 

HOSPITAL  RECORDS. 

1.  Copy  requested— Policy  of  department.    File  5195-61:1,  J.  A.  G.,  Mar.  21,  1912.    See 
also  MEDICAL  RECORDS,  1. 

HOSPITAL  SHIPS. 

1.  Command  of.    See  File  15285-59:3. 

2.  Deck  courts— Convening  of  by  commanding  officer.    See  HOSPITALS,  2,3. 

3.  Pay  officer— Assignment  to.    See  File  7036-279,  J.  A.  G.,  Jan.  18,  1913. 

4.  Punishments  by  commanding  officer.    See  HOSPITALS,  2. 

5.  Summary  courts-martial— Convening  of  by  commanding  officer.    See  HOSPITALS,  2. 

HOUSEHOLD  GOODS.    See  CLAIMS,  2. 
HUSBAND  AND  WIFE.    See  WIFE. 

HYDROGRAPHIC  OFFICE.  See  File  24501-16,  Apr.  19,  1910;  24501-19,  Aug.  2,  1910; 
24501-19,  Aug.  3,  1910;  24501-22,  Dec.  29,  1910;  24501-23,  Jan.  31,  1911;  24501-24,  Mar. 
8,  1911;  24501-20:1,  Jan.  25,  1912;  24501-31,  Aug.  14,  1913;  6381-00,  J.  A.  G.,  Apr.  2, 
1904;  9386-14:18,  J.  A.  G.,  Jan.  20,  1916. 

HYDROGRAPHIC  OFFICE  CHART. 

1.  No.  967.    See  C.  M.  O.  2, 1914,  2;  3,  1914.    Sec  also  CHARTS,  3. 

HYPOTHETICAL  QUESTIONS. 

1.  Answers  to— Department's  policy — It  is  the  established  practice  of  the  department  not 

to  answer  hypothetical  questions.  (File  26504-192,  Sec.  Navy,  Oct.  28, 1913.)  The 
department  has  found  it  necessary  to  adopt  the  rule  that  decisions  and  legal  opinions 
should  not  be  rendered  upon  hypothetical  questions.  The  department  could  not 
grant  the  special  privilege  of  corresponding  with  and  giving  opinions  on  hypothetical 
questions  to  one  of  the  many  officers  in  the  naval  service  without  extending  the 
same  courtesy  to  all  other  officers;  and  the  current  necessary  work  in  the  office  of  the 
Judge  Advocate  General  is  amply  sufficient  to  keep  the  entire  office  force  therein  busy. 
(File  26252-76,  J.  A.  G.,  May  16,  1913.)  The  department  has  consistently  refused 
to  answer  hypothetical  questions  or  to  decide  what  would  be  its  action  under  certain 
circumstances  or  to  make  an  advance  decision.  File  9736-54:1,  J.  A.  G.,  June  17, 
1915;  C.  M.  O.  22,  1915,  8.  See  also  File  9736-12;  26287-1776;  26504-195;  27231-66:2, 
J.  A.  G.,  Oct.  21.  1915;  9736-68,  J.  A.  G.,  June  19,  1916;  26504-197:1,  J.  A.  G.,  Mar.  16, 
1914;  26510-221,  J.  A.  G.,  Sept.  25,  1916;  3157-03,  Apr.  6, 1903;  23,  J.  A.  G.,89. 

2.  Evidence — Since  the  data  to  be  assumed  as  the  basis  are  those  which  it  is  expected  or 

claimed  the  jury  will  subsequently  adopt  as  true,  it  would  be  both  wasteful  oftime  and 
misleading  to  assume  data  which  there  is  not  a  fair  chance  the  jury  will  accept;  and 
a  limitation  for  this  purpose  is  accepted  by  all  courts.  The  phrasing  differs;  usually 
it  is  said  that  there  must  be  "some  evidence  tending  to  prove"  them;  or,  that  they 
must  be  "within  the  possible  or  probable  range  of  the  evidence;"  or  that  they  must 
concern  facts  which  "the  jury  might  legitimately  find  upon  the  evidence." 

An  hypothetical  question  is  supposed  to  be  an  accurate  synopsis  of  the  testimony 
that  has  already  been  sworn  to  by  the  various  witnesses  who  have  preceded  the 
appearance  of  the  witness  to  whom  such  a  question  is  propounded.  It  would  there- 
fore appear  that  the  hypothetical  question  and  the  answer  thereto  can  not  properly 
be  considered  as  evidence  in  this  case.  C.  M.  O.  7,  1911,  16. 

3.  Same — In  putting  a  hypothetical  question,  facts  may  be  assumed  which  there  is  evi- 

dence on  either  side  tending  to  establish;  but  this  rule  requires  that  the  facts  embraced 
in  the  hypotheses  must  be  within  the  confines  of  the  evidence;  otherwise  the  opinion 
of  the  witness  will  be  inadmissible.  (Benjamin  v.  Metropolitan  St.  R.  Co.,  50  Mo. 
App.,  602.)  "Hypothetical  questions  are  allowed  to  be  put  to  experts,  but  the  by- 


HYPOTHETICAL   QUESTIONS.  283 

potheses  upon  which  they  are  examined  must  be  based  upon  facts  admitted  or  es- 
tablished by  the  evidence,  or  which,  If  controverted,  the  jury  might  legitimately 
find  on  weighing  the  evidence.  Purely  imaginary  or  abstract  questions,  assuming 
facts  or  theories  for  which  there  is  no  foundation  in  the  evidence  are  not  admissible 
as  matter  of  right."  (People  v.  Augsbert,  97  N.  Y.,  501.)  It  is  well  settled  that  an 
opinion  can  not  be  based  on  a  state  of  facts  of  which  there  is  no  evidence.  This, 
however,  does  not  mean  that  the  facts  upon  which  the  opinion  of  an  expert  is  sought 
must  be  proved.  It  is  sufficient  if  there  is  evidence  tending  to  establish  the  facts. 
Then  the  jury  must  determine  whether  the  evidence  submitted  proves  the  facts  upon 
which  the  opinion  is  based.  (Hurst  v.  Chicago,  etc.,  R.  Co.,  49  La.,  76;  see  also  State 
v.  Mianni,  20  Ann.  Cas.,  205  and  note;  6  Dec.  Dig.,  pp.  627,  628,  sec.  481,  1.)  The 
reason  for  the  rule  which  limits  hypothetical  questions  to  facts  actually  in  evidence 
is  to  avoid  the  opportunity  which  otherwise  would  be  offered  to  the  ingenuity  of 
counsel  to  frame  questions  so  as  to  suggest  a  state  of  facts  favorable  to  his  case  but 
wholly  unsupported  by  evidence.  In  the  present  case  the  witness  had  not  qualified 
as  an  expert,  and  his  testimony  related  only  to  facts  personally  observed  by  him  and 
which  might  as  well  have  been  testified  to  by  any  other  person  who  was  present  at 
the  tune.  "  On  cross-examination  such  abstract  or  theoretical  questions,  not  founded 
upon  the  facts  of  the  case  on  trial,  may  be  put  for  the  purpose  of  testing  the  knowledge 
and  information  of  the  witness  as  to  the  subject  upon  which  he  has  been  examined 
and  his  competency  to  give  the  opinion  which  he  may  have  pronounced  on  his  direct 
examination."  (People  v.  Augsbert,  97  N.  Y.  501).  Such  questions,  however,  when 
introducing  supposititious  statements,  must  not  purport  to  be  based  upon  the  facts 
of  the  case  on  trial,  being  objectionable  for  the  same  reasons  as  above  stated.  C.  M.  O. 
5,  1913,  7-8.  See  also  EXPERT  WITNESSES,  13  (p.  234). 

4.  Same — The  precedents  of  the  department  are  clear  that  hypothetical  questions  should 

be  based  on  facts  in  evidence.  (C.  M.  O.  7, 1911.  pp.  15-16;  5, 1913,  pp.  7-8;  24, 1914,  20; 
51,  1914,  8;  Index-Digest,  1914,  p.  23.)  C.  M.  O.  49,  1915,  12,  14. 

5.  Form  of  letter.    See  File  26504-197:1,  Sec.  Navy,  Mar.  16,  1914. 

1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

IDEALS.    C.  M.  0. 14.  1915,  1;  17,  1915,  3.    See  also  OFFICERS,  62. 

IDENTITY  OF  ACCUSED. 

1.  Fraudulent  enlistment— Essential  in  proving  fraudulent  enlistment.  See  FBAUDU- 
LENT  ENLISTMENT,  51. 

IDIOCY.    See  C.  M.  O.  16,  1916,  8;  INSANITY,  20,  35;  WITNESSES,  52  (p.  651). 

IDIOSYNCRASY. 

1.  Death— Caused  by  idiosyncrasy  due  to  anesthetic.     See  LINE  OF  DUTY  AND  MISCON- 
,  DUCT  CONSTRUED,  63. 

IGNORANCE  OF  FACT.    See  C.  M.  0. 10, 1913,  4. 

IGNORANCE  OF  LAW. 

1.  Excuse  —Everyone  is  presumed  to  know  the  law,  and  ignorance  thereof  furnishes  no 
exemption  from  criminal  responsibility.  See  COURT,  87;  DESERTION,  77, 110;  EX- 
CUSE, 3;  FRAUDULENT  ENLISTMENT,  23. 

ILLEGAL  ORDERS.    See  ORDERS. 

ILLEGAL  EXAMINATIONS. 

1.  Promotion— Upon  illegal  examination— Of  no  legal  effect.    See  COMMISSIONS,  20. 

ILLEGAL  SENTENCES.    See  SENTENCES. 

ILLEGALLY  CONSTITUTED  COURTS-MARTIAL.    See  COURT,  37-41,  44,  47,  48. 

"IMMEDIATE   SUPERIOR   IN   COMMAND."    C.  M.  O.  30,    1916,  6-8;  SUMMARY 
COURTS-MARTIAL,  38. 

IMMIGRATION  ACTS. 

1.  Reference  to.    See  File  26260-697  and  1392,  3.  A.  G.,  June  29, 1911,  p.  20. 

IMMORAL  HABITS. 

1.  Disease— Contracted  by  officer  in  consequence  of  his  immoral  habits.    C.  M.  0. 40, 1889. 


284  IMPERSONATION. 

IMMUNITIES. 

1.  Accused.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED. 

2.  Witnesses.    See  SELF-INCRIMINATION. 

IMPEACHMENT. 

1.  Answers  to  irrelevant  or  collateral  matters — The  answers  of  a  witness  to  irrele- 

vant or  collateral  matters  is  conclusive  against  the  party  asking  the  question,  who  will 
not  be  allowed  to  impeach  the  witness  as  to  such  answers.  (Greenleaf,  v.  1,  448.) 

2.  Character  ol  witnesses.    See  EVIDENCE,  12-22. 

3.  Court  of  inquiry  record— As  evidence  to  impeach  testimony  of  a  witness.    See 

COURTS  OF  INQUIRY,  19,  27. 

4.  Degrading  questions.    See  SELF-INCRIMINATION,  11, 12. 

5.  Exceptions  as  to  impeachment  ol  one's  own  witness— A  party  may  not  impeach 

the  credibility  of  a  witness  whom  he  calls  (G.  C.  M.  Rec.  30485.  p.  t>10.  See  also 
C.  M.  O.  47, 1910,  5;  G.  C.  M.  Rec.  28052,  p.  19)  except  (1)  when  the  witness  appears 
to  be  hostile  to  the  party  that  calls  him;  (2)  when  the  party  that  called  him  had  no 
option,  but  was  compelled  to  do  so;  and  (3)  when  the  party  that  called  him  is  unduly 
surprised  at  the  evidence  elicited.  (G.  C.  M.  Rec.  28681,  pp.  45-47.) 

6.  Former  witness  sustained— A  former  witness  may  be  sustained  by  proving  general 

bad  character  of  the  impeaching  witness.  If  impeached  by  proof  of  contradictory 
statements,  he  may  be  sustained  by  proof  of  general  good  character,  the  effect  of  the 
evidence  to  be  determined  by  the  court. 

7.  Foundation  lor  impeachment— To  lay  the  foundation  the  witness  may  be  recalled 

at  any  time.  It  is  not  necessary  to  lay  the  foundation  when  the  previous  statement 
was  made  under  oath  and  recorded  before  an  official  lawfully  empowered  to  administer 
an  oath.  C.  M.  O.  19,  1915,  5.  See  also  G.  C.  M.  Rec.  30485,  pp.  125, 149,  176;  WIT- 
NESSES, 40. 

8.  Impeaching  a  witness — A  witness  may  be  impeached  (1)  by  disproving  the  facts 

testified  to  by.  him;  (2)  by  proof  of  contradictory  statements  previously  made  by  him 
as  to  matters  relevant  to  his  testimony  and  to  the  case;  and  (3)  by  evidence  as  to  his 
general  bad  character.  (G.  C.  M.  Rec.  30485,  pp.  410,  412-419.)  See  also  C.  M.  O.  88, 
1895,  16;  57,  1897,  2. 

9.  Same— While  a  witness  for  the  defense  was  still  on  the  stand  and  undergoing  cross- 

examination  the  judge  advocate  irregularly  and  improperly  introduced  his  (the 
witness's)  current  enlistment  record,  reading  therefrom  extracts  sho  whig  previous  con- 
victions by  courts-martial;  also  a  letter  from  the  adjutant  and  inspector,  United  States 
Marine  Corps,  to  the  commanding  officer  of  the  naval  prison  at  the  navy  yard,  Ports- 
mouth, N.  II.,  in  reference  to  the  change  of  the  witness's  name;  all  of  which  was  done 
to  discredit  his  testimony. 

The  offenses  concerning  which  extracts  from  the  enlistment  record  were  read, 
with  but  one  exception,  had  nothing  to  do  with  the  credibility  of  the  witness.  They 
were  strictly  military  offenses  and  in  no  way  affected  his  general  character  as  to 
truthfulness.  The  exception  is  that  of  "Fraudulent  enlistment,"  in  which  false 
swearing  was  involved.  C.  M.  O.  47, 1910,  5. 

10.  Procedure  before  contradictory  statements  can  be  proved — Before  contradictory 

statements  of  a  witness  can  de  proved  against  him  his  attention  must  be  called  with 
as  much  certainty  as  possible  to  the  time,  place,  attending  circumstances,  and  the  per- 
son to  whom  made.  If  the  previous  statement  was  in  writing,  it  should  be  shown  or 
read  to  him  unless  the  absence  of  the  writing  is  accounted  for. 

11.  Questions  to  Impeaching  witness— The  impeaching  witness  may  be  asked  as  to 

his  knowledge  of  the  general  character  of  the  witness  whose  testimony  is  to  be  im- 
peached; as  to  the  latter's  general  character;  but  particular  transactions  or  opinions 
can  not  be  inquired  into  except  in  seeking  for  the  extent  and  foundation  of  the  wit- 
ness's knowledge;  as  to  whether  he  would  believe  the  latter  under  oath :  and,  when 
desired,  he  may  be  asked  as  to  the  extent  and  foundation  of  his  knowledge.  These 
questions  are  asked  only  when  it  is  attempted  to  impeach  by  evidence  of  general  bad 
character. 

12.  Relationship  of  witness — The  state  of  the  feelings  of  the  witness  and  his  relation- 

ship to  the  parties  may  always  be  proved  for  the  consideration  of  the  court. 

IMPERSONATION. 

1.  Department  of  Justice — In  cases  in  which  persons  fraudulently  impersonate  officers 
and  enlisted  men  of  the  naval  service,  the  Attorney  General  causes  criminal  prose- 
cutions to  be  instituted  where  the  matter  is  brought  to  his  attention  by  the  Secretary 
of  the  Navy.  File  21355. 


IMPERSONATION.  285 

2.  Enlisted  man— Impersonation  of  an  enlisted  man  and  passing  worthless  checks.    File 

21355-27:  1,  Sec.  Navy,  Dec.  8.  1915. 

3.  Officer— Impersonation  of  recruiting  officer.    File  21355-25,  J.  A.  G.  Nov.  1,  1915. 

4.  Officer,  dismissed— A  dismissed  officer  impersonated  an  officer.    File  21355-29. 

5.  Worthless  checks— Civilian  in  Navy  uniform  passing  worthless  checks.    File  21355-77, 

J.  A.  G.,  Dec.  3,  1915. 

IMPLICATION,  REPEAL  BY.  See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 
109. 

IMPLIED  INTENT.    See  EMBEZZLEMENT,  25;  INTENT,  29. 
IMPLIED  PARDON.    See  DESERTION,  41;  PARDONS,  44. 
IMPOSTORS.   See  IMPERSONATION. 

IMPROPERLY  HAZARDING  THE  VESSEL  UNDER  HIS  COMMAND,  IN 
CONSEQUENCE  OF  WHICH  SHE  WAS  RUN  UPON  A  SHOAL  AND 
SERIOUSLY  INJURED. 

1.  Officer— Charged  with.    C.  M.  O.  2, 1914. 

IMPROPERLY  HAZARDING  A  VESSEL  UNDER  HIS  COMMAND  IN  CONSE- 
QUENCE OF  WHICH  SHE  WAS  SERIOUSLY  INJURED. 

1.  Officer— Charged  with.    C.  M.  O.  31,  1916. 

IMPROPERLY  HAZARDING  THE  VESSEL  UNDER  HIS  COMMAND  IN  CON- 
SEQUENCE OF  WHICH  SHE  WAS  RUN  UPON  A  ROCK  AND  LOST. 

1.  Officer— Charged  with.    C.  M.  O.  20,  1883. 

IMPROPERLY  HAZARDING  THE  VESSEL  UNDER  HIS  COMMAND  IN  CON- 
SEQUENCE OF  WHICH  SHE  WAS  RUN  UPON  A  SHOAL  AND 
SERIOUSLY  INJURED. 

1.  Officers— Charged  with.    C.  M.  O.  17,  1913;   26,  1916. 

IMPROPERLY  HAZARDING  THE  VESSEL  UNDER  HIS  COMMAND  IN  CON- 
SEQUENCE OF  WHICH  SHE  WAS  RUN  UPON  A  SHOAL. 

1.  Officer— Charged  with.    C.  M.  O.  32,  1913;  19,  1917. 

IMPROPERLY  HAZARDING  A  VESSEL  OF  THE  NAVY,  IN  CONSEQUENCE 
OF  WHICH  SHE  WAS  RUN  UPON  A  SHOAL  AND  SERIOUSLY  IN- 
JURED. 

1.  Officer— Charged  with.    C.  M.  O.  27,  1916. 

IN  JOINDER.    See  JOINDER,  TRIAL  IN. 

INADEQUATE  SENTENCES.    See  ADEQUATE  SENTENCES. 

INCLINING  EXPERIMENTS. 

1.  Stability  of  vessel — An  officer  was  tried  by  general  court-martial  for  failing  to  cause 
result  of  inclining  experiment  to  be  determined  and  failing  to  notify  commandant 
of  his  doubts  of  the  stability  of  a  ship  which  was  sent  to  sea  in  an  unsafe  condition 
and  was  lost.  C.  M.  O.  32,  1909. 

INCOME-TAX  RETURNS. 

1.  Oath.   See  OATHS,  24. 

INCOMPETENCY. 

1.  Charges  of — Against  any  rated  person — When  the  offense  charged  is  incompetency, 

it  is  essential  to  set  forth  the  particular  acts  or  neglect  upon  which  the  specification 
is  based;  and  it  is  necessary  that  more  than  one  instance  of  such  incompetency  be 
alleged. 

In  the  case  of  a  person  found  guilty  of  incompetency  the  sentence  of  disrating  is 
mandatory,  and  such  sentence  is  the  only  authorized  punishment  therefor.  See 
File  5710,  Sec.  Navy,  Sept.  18,  1906. 

2.  Counsel.   See  COUNSEL,  37. 

INCRIMINATION.    See  SELF-INCRIMINATION. 


286  INDICTMENT. 

INDEBTEDNESS.    See  DEBTS. 

INDECENT  ASSAULT. 

1.  Paymaster's  Clerk— Charged  with.    C.  M.  O.  35,  1913. 

INDECENT  BEHAVIOR. 

1.  Officer— Charged  with.    C.  M.  O.  47,  1906. 

INDEMNITY. 

1.  Chilean  Indemnity  Fund.   See  CHILEAN  INDEMNITY  FUND. 

INDEX. 

1.  Board  of  Investigation.    See  INDEX,  3. 

2.  Court  of  Inquiry.    See  INDEX,  3. 

3.  General  court-martial — If  a  general  court-martial  case,  or  that  of  a  court  of  inquiry, 

investigation,  or  board  of  investigation,  exceeds  20  pages  in  length,  it  shall  be 
preceded  by  an  index  showing  upon  what  page  each  step  of  the  trial  and  of  the 
examination  of  the  several  witnesses,  giving  their  names,  may  be  found;  also,  in 
case  a  witness  corrects  his  testimony,  the  pages  where  such  correction  is  referred  to 
and  where  made.  Forms  of  Procedure,  1910,  p.  10.  See  also  C.  M.  O.  7,  1911,  p.  13; 
8,  1911,  p.  4;  21,  1912,  p.  4;  28,  1912,  p.  3;  36, 1914,  p.  6;  20,  1915,  p.  5;  G.  C.  M.  Rec. 
30485. 

4.  Insanity— Claim  that  the  preparation  of  an  index  by  a  naval  officer  caused  insanity 

and  suicide.    See  INDEX,  8. 

5.  Interspersed  throughout  record — The  judge  advocate  of  a  general  court-martial  of 

an  officer  was  criticized  by  the  department  for  not  arranging  the  index  properly. 
.    The  department  stated:  "The  index  was  interspersed  throughout  the  record,  pre- 
ceding the  record  of  each  day's  proceedings,  thus  being  of  little  value  as  an  index." 
C.  M.  O.  20,  1915,  5. 

6.  Precede  case — In  reviewing  the  records  of  proceedings  of  several  general  courts-martial 

the  department  observed  that  the  index  was  placed  after  the  charges  and  specifica- 
tions instead  of  preceding  the  case.  The  index  should  precede  the  case  and  there- 
fore be  the  first  paper  beneath  the  cover.  Forms  of  Procedure,  1910,  p.  10.)  C.  M.  O. 
36,  1914,  6. 

7.  Returned  for  revision — Record  was  returned  to  the  court  because  of  the  failure  to 

index  the  record  as  required  by  Forms  of  Procedure,  1910,  p.  10. 

8.  Suicide— Claim  that  the  preparation  of  an  index  caused  insanity  which  led  to  suicide. 

File  26250-230:  24,  J.  A.  G.  June  28,  1913. 

INDIANS. 

1.  Annuity — Authority  of  commanding  officer  to  administer  oath  for  an  Indian  to  make 

application  for  an  annuity  or  any  other  sum  due  him.    See  OATHS,  38. 

2.  Clemency — Extended  because  accused  was  an  American  Indian.    In  view  of  the  fact 

that  the  accused  was  a  full-blooded  American  Indian  and  under  the  conditions  at 
the  time  of  the  commission  of  his  offense  did  not  appreciate  the  full  gravity  of  his 
acts,  the  department  mitigated  the  sentence.  C.  M.  O.  114, 1903,  4. 

3.  Enlistment  of — An  Indian  who  belonged  to  the  Seneca  Nation  in  the  State  of  New  York 

is  prima  facie  not  a  citizen  of  the  United  States,  and  should  be  required  to  establish 
his  citizenship  by  satisfactory  evidence  when  he  applies  for  enlistment  in  the  Navy. 
Suggested,  however,  as  there  is  no  law  making  citizenship  a  condition  precedent  to 
enlistment,  the  Navy  Department  is  authorized  to  enlist  such  Indians,  regardless 
of  citizenship,  if  considered  desirable,  this  being  a  matter  of  departmental  regulation. 
File  9212-48,  Aug.  3,  1914. 

4.  Medical  Reserve  Corps  of  the  Navy— An  Indian  born  in  Indian  Territory  and  who 

had  resided  in  Oklahoma  after  its  admission  as  a  State  was  held  to  be  a  citizen  of  the 
United  States  by  virtue  of  the  various  acts  of  Congress,  and  accordingly  eligible,  if 
otherwise  qualified,  for  appointment  as  an  assistant  surgeon  in  the  Medical  Reserve 
Corps  of  the  Navy.  File  26252-99,  May,  1915. 

INDIAN  HEAD. 

1.  Jurisdiction.   See  JURISDICTION,  83,84. 

INDICTMENT. 

1.  Certified  copy  of.   See  also  CIVIL  AUTHORITIES,  16. 

2.  Common  law  indictment.    C.  M.  O.  23,  1911,  5.    See  also  MANSLAUGHTER,  13. 


INDICTMENT.  287 

3.  No  existence  In  naval  service — Counsel  for  accused,  in  argument,  repeatedly  referred 

to  summary  court-martial  specifications  before  the  court  as  an  "indictment,"  thus 
falling  into  an  error  scarcely  to  be  expected  of  a  naval  officer  appearing  as  counsel 
before  a  military  court— indictment,  as  expressly  recognized  by  the  Constitution  of 
the  United  States,  having  no  existence  in  cases  arising  in  the  land  and  naval  forces. 
File  26287-3475,  Sec.  Navy,  July  5,  1916.  See  also  RECORD  OF  PROCEEDINGS,  31. 

4.  Presentment  and  indictment — By  grand  jury.    See  CONSTITUTIONAL  RIGHTS  OF 

ACCUSED,  13. 

INDORSEMENTS. 

1.  Adjutant  and  Inspector,  U.S.  M.C. — Indorsement  on  letter  of,  as  evidence.    C.  M.  O. 

47,  1910,  5.    See  also  LETTERS.  4,  5. 

2.  Bureau  of  Navigation— As  evidence.    C.  M.  O.  49, 1910, 10. 

3.  Same— Published  in  Court-Martial  Orders.    See  BUREAU  OF  NAVIGATION,  1. 

4.  Commanding  officer,  Presidio,  San  Francisco.    C.  M.  O.  49,  1910,  10. 

5.  Letter — Indorsement  on  letter  to  show  previous  conviction.    See   PREVIOUS  CON- 

VICTIONS, 15. 

6.  Same — Indorsement  on  letter  as  evidence.    C.  M.  O.  47,  1910,  4. 

INEFFICIENCY.    See  C.  M.  O.  129,  1898,  6. 

"  INEVITABLE  ACCIDENT." 
1.  Collision — As  a  defense  in  a  collision.    See  COLLISION,  12,  17. 

INEXPERIENCE. 

1.  Clemency — Members  of  court-martial  recommended  accused  to  clemency  because  of 
inexperience.    See  CLEMENCY,  27. 

INFANTS.    See  MINORS. 

INK  ERADICATOR. 

1.  Use  of— Prohibited  In  Bureau  of  Supplies  and  Accounts.    File  22590;  S.  &  A.  File  99550; 
66  S.  &  A.  Memo.  154. 

INQUESTS. 

1.  Autopsy.   See  AUTOPSY. 

2.  Boards  of  inquest.   See  BOARDS  OF  INQUEST. 

3.  Confession.    See  CONFESSIONS,  10. 

4.  Coroners.    See  CONFESSIONS,  10. 

5.  Evidence — Coroner's  inquest  record.    See  CONFESSIONS,  10. 

6.  Naval  reservation— Right  of  coroners  to  hold  an  inquest  in.    File  1766-03;  3726-97; 

7101.    See  also  JURISDICTION,  22-24. 

INSANITY. 

1.  Absence  from  station  and  duty  without  leave — Court  should  not  find  specifica- 

tion proved  but  not  guilty  of  charge — From  a  review  of  the  case  of  an  officer  tried  by 
general  court-martial  on  the  charge  of  "Absence  from  station  and  duty  without 
leave,"  the  offense  alleging  an  absence  after  expiration  of  leave  of  about  three  days, 
it  is  noted  that  the  court  found  the  specification  proved  but  the  accused  not  guilty 
of  the  charge. 

The  defense  offered  in  this  case  was  that  the  accused  was  irresponsible  for  his 
actions  on  account  of  mental  disorder,  and  the°court  apparently  accepted  this  condi- 
tion as  relieving  him  of  responsibility  in  connection  with  the  offense  charged. 

It  might  be  remarked  that  a  more  proper  finding  on  the  specification  would  have 
been  "proved  but  without  culpability  (or  criminality)."  C.  M.  O.  23,  1910,  7.  But 
see  FINDINGS,  44,  69,  70. 

2.  Acquitted— Because  of.    C.  M.  O.  42,  1909,  12.    See  also  INSANITY,  1. 

3.  Clemency— Extended  to  accused  because  among  other  things  "the  infractions  of  the 

law  and  Navy  Regulations  took  place  when  the  accused  was  under  unusual  mental 
strain."  C.  M.  O.  30,  1905,  1. 

4.  Same-^The  accused  was  found  guilty  and  sentenced.    The  recommendation  to  clem- 

ency indicated  that  the  members  had  some  doubt  as  to  the  sound  mental  condition 
of  the  accused,  in  consequence  of  which  a  board  of  medical  officers  was  directed  to 
inquire  into  his  physical  and  mental  condition.  In  view  of  the  report  of  the  board 
and  further  reports  no  action  was  taken  on  the  record,  but  the  accused  was  discharged 
from  the  naval  service.  C.  M.  O.  86, 1901. 

50756°— 17 19 


288  INSANITY. 

5.  Same— A  recommendation  to  clemency  read  in  part:  "It  appears  to  us  probable  that 

the  condition  of  the  accused  on  December  30, 1907,  was  at  least  in  part  due  to  mental 
disturbance,  although  also  in  part  due  to  alcoholic  stimulant."  'C.  M.  O.  3,  1908,  1. 

6.  Same — A  report  of  a  medical  board  ordered  to  examine  into  the  mental  condition  of 

the  accused  reported  in  part  as  follows:  He  "is  of  feeble,  untrained  mind,  and  evi- 
dently is  deficient  in  will  power,"  and  the  clemency  was  accordingly  extended  by 
the  department.  C.  M.  O.  30, 1892, 1. 

7.  Conviction,  Insane  after— If  accused  becomes  insane  after  conviction,  judgment  can 

not  be  given  or  sentence  pronounced  so  long  as  he  is  in  such  condition;  nor  can  he  be 
executed  if  he  becomes  insane  after  judgment  and  sentence.  C.  M.  O.  24,  1914,  4. 

8.  Defense— To  establish  a  defense  on  the  ground  of  insanity,  it  must  be  clearly  proved 

that,  at  the  time  of  the  committing  of  the  act,  the  party  accused  was  laboring  under 
such  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and  quality 
of  the  act  he  was  doing;  or,  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what 
was  wrong.  C.  M.  O.  24, 1914,  8. 

9.  Definition— "The  terms  'lunatic,'  'insane,'  'of  unsound  mind,'  and  'non  compos 

mentis '  are  convertible  and  generic  terms,  and  include  all  the  specific  forms  of  mental 
disease  recognized  by  the  text  writers  and  medical  authorities."  (22  Cyc.,  1110.) 
C.  M.  O.  24,  1914,  3. 

10.  Delusion,  Insane.    See  C.  M.  0. 24, 1914,  9. 

11.  Drunkenness— Resulting  in  insanity.    See  ASSAULT,  17. 

12.  Dying  declaration — An  insane  person  can  not  make  an  admissible  dying  declara- 

tion.   See  DYING  DECLARATIONS,  1. 

13.  Excuse-^-The  law  does  not  excuse  criminal  acts  committed  under  the  impulse  of  an 

appetite  or  passion  which,  by  long  indulgence,  has  acquired  mastery  over  the  accused. 
C.  M.  O.  24, 1914, 15. 

14.  Feeble  mind.   See  INSANITY,  6. 

15.  Fraudulent  enlistment— Insanity  as  a  defense.    See  CLEMENCY,  36;  FINDINGS, 

62,  55;  FRAUDULENT  ENLISTMENT,  23. 

16.  Government  Hospital  for  the  Insane— Allowances  for  prisoners  and  patients  at. 

See  GOVERNMENT  HOSPITAL  FOR  THE  INSANE,  2. 

17.  Same — Allotments — By  patients  at.    See  GOVERNMENT  HOSPITAL  FOR  THE  INSANE,  1. 

18.  Same— Discharge  of  insane  prisoners  at.    See  File  26251-4927;  G.  C.  M.  Rec.  23817. 

See  also  DISCHARGE,  25. 

19.  Half-witted— If  the  accused  was  half-witted  and  irresponsible  at  the  time  of  his  trial, 

he  was  not  competent  to  conduct  his  defense,  and  upon  the  court  arriving  at  such 
a  conclusion  it  became  its  duty  to  suspend  the  proceedings  in  the  case  and  inform  the 
department  of  its  opinion  in  the  matter,  in  which  case,  if  the  circumstances  war- 
ranted, a  medical  survey  would  have  been  ordered  to  determine  his  condition. 
C.  M.  O.  49,  1910,  17;  24,  1914,  5. 

20.  Idiocy.    See  C.  M.  0. 16, 1916,  8;  INSANITY.  35;  WITNESSES,  52. 

21.  Indexing— As  a  cause  of  insanity  and  suicide.    See  INDEX,  8. 

22.  Irresistible  impulse— Is  not  a  defense  to  crime  where  accused  had  mental  capacity 

to  distinguish  between  right  and  wrong,  and  to  know  that  the  particular  act  charged 
was  wrong.  The  law  does  not  excuse  criminal  acts  committed  under  the  impulse 
of  an  appetite  or  passion  which,  by  long  indulgence,  has  acquired  mastery  over  the 
accused.  C.  M.  O.  24,  1914,  1.  See  also  C.  M.  O.  51,  1914,  4. 

23.  Lunatics.    See  INSANITY,  9. 

24.  Medical  test— Can  not  be  adopted  if  society  is  to  be  protected  against  crime.    Medical 

science  would  acquit  by  the  wholesale  criminals  who  did  not  resist  "impulses"  which 
they  well  knew  were  wrong.  The  department  has  no  intention  of  encouraging  any 
such  theories.  No  such  doctrine  is  recognized  as  law  by  the  Federal  courts  nor  by 
the  weight  of  authority  in  the  State  courts.  C.  M.  0. 24, 1914, 8, 19.  Seealso  C.  M.  O. 
61, 1914,  4. 

25.  Mental  strain.    See  INSANITY,  1,  3. 

26.  Mentally  Incapacitated.    See  CLEMENCY,  36.    Seealso  INSANITY,  1,  5  ,6,  27. 

27.  Mental  irresponsibility— If  intended  to  mean  "insane"  courts-martial  should  use 

the  latter  expression,  which  in  law  includes  all  the  specific  forms  of  mental  disease 
recognized  by  text  writers  and  medical  authorities.  C.  M.  O.  24, 1914,  1,  6. 

28.  Mentally  unbalanced.    See  INSANITY,  1,  5,  6,  27. 

29.  Moral  obliquity.    See  INSANITY,  37. 

30.  Non  compos  mentis.    See  INSANITY,  9. 

31.  Partial  insanity.   See  C.  M.  O.  24,  1914,  9,  17. 


INSANITY.  289 

32.  Procedure— If  the  court  is  of  the  opinion  that  accused  is  insane  during  trial,  its  duty 

is  to  suspend  proceedings  and  inform  convening  authority  of  its  opinion,  in  order 
that,  if  the  circumstances  warrant,  a  board  of  medical  survey  may  be  ordered.  When, 
instead  of  doing  this,  the  court  proceeds  with  the  trial  and  records  findings  on  the 
charges  and  specifications,  it  is  the  duty  of  the  convening  authority  to  decline  to  accept 
the  court's  findings;  and  the  record  should  be  returned  to  the  court  in  order  that  such 
findings  may  be  revoked,  as  there  has  been  no  legal  trial,  the  accused  has  not  been 
placed  in  jeopardy,  and  the  status  of  his  case  is  the  same  as  though  he  had  never  been 
arraigned.  C.  M.  0. 24, 1914, 1.  SeealsoC.lA.  0.42,1909, 13;  117,1902, 9;  INSANITY,  41. 

33.  Rape— Insanity  as  defense  to.    See  C.  M.  O.  24,  1914,  16. 

34.  Resignation— Of  an  officer.    See  RESIGNATIONS,  13. 

35.  "  Right  and  wrong  "  test — Rule  for  determining  criminal  responsibility  in  law — 

If  a  person  is  incapable,  because  of  idiocy  or  insanity,  of  distinguishing  between 
right  and  wrong  as  to  a  particular  act  at  the  time  he  commits  it,  he  is  not  to  be  held 
criminally  responsible  therefor.  C.  M.  O.  24, 1914,  8;  51, 1914,  4.  See  also  RESPONSI- 
BILITY FOB  CRIME,  1. 

36.  Same — Legal  test — "Right  and  wrong"  test  is  the  test  of  criminal  responsibility  laid 

down  by  Federal  courts,  has  been  adopted  by  the  department,  and  should  be  applied 
by  naval  courts-martial.  C.  M.  O.  24,- 1914,  16;  51,  1914,  4. 

37.  Sentence — Confirmed— The  following  is  the  confirmation  of  the  President  indorsed 

thereon: 

"WHITE  HOUSE, 
"  November  £6, 1902. 

"The  sentence  in  the  case  of  Ensign    '*    *    *'    U.  S.  Navy,  is  hereby  confirmed. 

"*   *   *." 

Subsequently  to  the  action  taken  as  above  stated,  in  the  case  of  Ensign  *  *  *, 
U.  S.  Navy,  the  question  having  been  raised  as  to  his  mental  condition,  the  matter 
was  referred  to  a  board  of  medical  officers,  which  found  as  follows: 

"The  board  finds  that  there  is  evidence  of  moral  obliquity  associated  with  a  lack 
of  mental  appreciation  of  the  gravity  of  his  acts." 

The  report  of  the  board  was  duly  submitted  to  the  President,  who,  under  date 
of  the  llth  instant,  directed  that  the  sentence  of  the  general  court-martial  in  this 
case  be  carried  into  effect.  Ensign  *  *  *,  U.  S.  Navy,  has  accordingly  to-day 
been  dismissed  from  the  naval  service  of  the  United  States.  C.  M.  O.  230, 1902. 

38.  Same — Disapproved  because  of  mental  condition  of  accused — Accused  charged  with 

"  Desertion,"  found  guilty  of  "Absence  from  station  and  duty  without  leave."  Rec- 
ommended for  clemency  because  of  the  evidence  "showing  some  doubt  as  to  his 
mental  condition." 

Department  approved  the  proceedings  but  disapproved  the  findings  and  sentence 
of  dismissal,  stating  in  part,  "In  view  of  the  recommendation  to  clemency  signed 
by  a  majority  of  the  court  showing  that  there  was  a  doubt  as  to  the  mental  condition 
of  the  accused  during  his  absence  without  leave,  and  as,  from  a  careful  review  of  the 
evidence  adduced,  this  doubt  seems  to  be  a  reasonable  one,  the  court  should,  in  my 
opinion,  have  found  the  accused  not  guilty."  C.  M.  O.  80, 1907.  See  also  INSANITY, 
32,  41,  for  C9rrect  procedure. 

39.  Same — But  in  view  of  the  unanimous  recommendation  of  the  members  of  the  court 

that  the  sentence  be  remitted  for  the  reason  that,  in  their  opinion,  the  accused 
(officer)  was,  at  the  time  the  offense  was  committed,  irresponsible  for  his  acts, 
because  of  his  physical  and  mental  condition,  the  sentence  was  remitted.  C.  M.  O. 
56, 1889,  2.  See  INSANITY,  32,  41,  for  correct  procedure. 

40.  Suicide — Caused  by  insanity.    See  INDEX,  8;  LINE  OF  DUTY  AND  MISCONDUCT  CON- 

STRUED, 89,  91,96. 

41.  Trial— Insane  at  time  of  trial— Procedure— If  the  court,  after  hearing  the  testimony 

of  the  doctor,  entertained  only  a  doubt  as  to  the  sanity  of  the  accused  at  the  time 
he  committed  the  offense,  or  if  the  testimony  had  conclusively  shown  that  the 
accused  was  insane  at  the  time  of  his  trial,  in  which  event  he  would  not  have  been 
competent  to  conduct  his  defense,  the  proper  procedure  would  have  been  to  have 
suspended  the  proceedings,  reported  the  facts  as  found  to  the  department,  and,  if 
the  circumstances  warranted,  a  medical  survey  would  then  have  been  directed. 
C.  M.  0. 42, 1909, 13.  See  also  INSANITY,  32. 


290  INSANITY. 

42.  "Unsound  mind."    See  INSANITY,  9. 

43.  "Untrained  mind."    See  INSANITY,  6. 

44.  Weak-minded.    See  INSANITY,  6. 

45.  Will  power— Deficient  in.    See  INSANITY,  6. 

INSIGNIA  OF  BANK  STRIPPED  OFF.    See  C.  M.  O.  7,  1888,  1. 

INSPECTOR  OF  MACHINERY. 

1.  Neglect  of  duty  of.   C.  M.  O.  41, 1915.    See  also  BUREAU  OF  STEAM  ENGINEERING,  1. 

INSTRUCTIONS  FOR  RECRUITING    OFFICERS  OF   THE  UNITED  STATES 
NAVY.    See  C.  M.  0. 12, 1911,  4;  FRAUDULENT  ENLISTMENT,  78. 

INSTRUCTIONS  OF  DEPARTMENT.  * 

1.  Court-martial  orders,  In— Are  in  such  easily  accessible  form  that  ignorance  of  or 
inattention  to  them  are  inexcusable.    See  COUBT-MARTIAL  ORDERS,  8. 

INSUBORDINATE  CONDUCT  TO  THE  PREJUDICE  OF  GOOD  ORDER  AND 
DISCIPLINE. 

1.  Officer— Charged  with.    C.  M.  O.  6, 1883. 

INSUBORDINATION. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  35. 1893;  78, 1893. 

2.  Punishment  for.    C.  M.  O.  49,  1915,  17, 19. 

INSULAR  AUTHORITIES. 

1.  Arrests— Upon  naval  territory  by.    See  ARREST,  20:  JURISDICTION,  11,  94, 106, 108. 

2.  San  Juan,  P.  R,— Arrest  by  service  of  process.    See  JURISDICTION,  108. 

INSURANCE  COMPANY. 

1.  Blanks— Signing  of  by  medical  officers.    See  MEDICAL  RECORDS,  5. 

INTENT. 

1.  Absence  from  station  and  duty  without  leave— With  intent  to  desert  should  be 

charged  as  desertion.    C.  M.  0 .  23,  1910,  6. 

2.  Absence,  unauthorized — Whether  absence  without  leave  is  of  that  class  of  statutory 

offenses  where  intent  is  immaterial  is  apparently  settled,  for  it  has  been  held  by  the 

•"-4200,  Jan.  25,  1911)  that— 

'was  fully  conscious  of  what  he  was 


department  (file  26251-3252,  Apr.  28,  1910;  26251-4200,  Jan.  25,  1911)  that^ 
"Where   *   *   *    it  appears  that  the  accused 'wa 


"  Upon  a  charge  like  that  of  absence  without  leave,  where  it  is  not  necessary  to  allege 
or  prove  any  specific  intent,  it  may  very  well  happen  that  all  the  facts  alleged  in  the 
specification  may  be  found  proved,  and"^  yet  the  accused  be  wholly  free  from  blame; 
the  absence,  for  example,  being  entirely  involuntary  on  his  part." 

The  offense  of  absence  over  leave,  therefore,  is  one  in  which  no  specific  intent  is 
required  to  be  shown,  but  that  upon  proof  of  the  commission  of  the  act  the  general 
intent  usually  necessary  in  criminal  offenses  is  presumed.  The  question  here  recurs 
whether  this  statutory  offense  is  one  to  which  no  defense  may  be  interposed  beyond 
denial  of  the  commission  of  the  act  charged;  whether,  for  example,  the  man  was 
engaged  in  some  lawful  pursuit  while  on  liberty  and  while  so  engaged  was  placed  in 
such  a  position  or  condition  not  the  result  of  any  wrongful  or  unlawful  act  of  his  own 
volition,  whereby  he  is  rendered  incapable  of  returning  to  his  vessel  or  station  at  the 
expiration  of  his  authorized  liberty.  Under  such  circumstances  can  he  introduce 
evidence  of  the  facts  and  be  found  "not  guilty,"  or  must  the  proof  of  such  facts  merely 
be  considered  by  the  reviewing  authorities  in  deciding  whether  or  not  clemency  may 
be  extended. 

If  the  Articles  for  the  Government  of  the  Navy  be  examined,  many  acts  and  neglects 
will  be  found  which  are  made  punishable  where  only  a  general  intent  is  necessary; 
that  is,  where  merely  doing  the  act  or  omitting  to  so  some  duty  constitutes  the  offense, 
the  presumption  of  a  general  wrongful  intent  being  raised  by  proof  of  such  act  or 
omission.  Some  of  these  are  "Sleeping  upon  watch."  "Leaving  his  station  before 
being  regularly  relieved,"  "  Profane  swearing,"  etc., "  Negligent  or  careless  in  obeying 
orders," ' '  Violating  or  refusing  obedience  to  any  lawful  general  order,"  etc.,  "Suffering 
a  vessel  of  the  Navy  to  be  stranded,"  and  many  others. 


INTENT.  291 

If,  as  suggested  by  the  remarks  of  the  reviewing  authorities,  proof  of  the  mere  act 
or  neglect  is  all  that  is  necessary  to  render  the  accused  amenable  to  punishment,  and 
that  proof  of  exculpatory  facts  should  only  be  made  the  basis  of  a  recommendation 
to  clemency  j  then  it  could  very  possibly  happen  in  some  cases  that  the  reviewing 
authority  might  not,  for  any  one  of  various  possible  reasons,  feel  inclined  to  exercise 
clemency,  with  the  result  that  the  accused  would  be  punished  for  something  for  which 
he  was  really  excusable.  That  such  view,  as  above  stated,  can  not  be  the  proper 
one  and  that  matters  of  defense  may  properly  be  considered  in  deciding  whether  the 
accused  is  guilty  or  innocent,  in  contemplation  of  law,  the  following  from  Felton  v. 
United  States  (97  U.  S.,  699,  703)  may  be  quoted: 

"The  law_  *  *  *  is  not  so  unreasonable  as  to  attach  culpability,  and  conse- 
quently to  impose  punishment,  where  there  is  no  intention  to  evade  its  provisions, 
and  the  usual  means  to  comply  with  them  are  adopted.  All  positive  legislation 
contemplates  some  relation  between  guilt  and  punishment.  To  inflict  the  latter 
where  the  former  does  not  exist  would  shock  the  sense  of  justice  of  everyone."  Fur- 
thermore, absence  without  leave  in  the  Army  is  forbidden  and  made  punishable 
by  the  thirty-second  Article  of  War,  which  reads  as  follows: 

"Any  soldier  who  absents  himself  from  his  troop,  battery,  company,  or  detach- 
ment, without  leave  from  his  commanding  officer,  shall  be  punished  as  a  court-martial 
may  direct." 

This  is  a  statutory  offense  likewise,  and  yet  as  to  matters  of  defense  thereto,  Win- 
throp,  in  his  Military  Law  and  Precedents  (2d  ed.,  p.  939),  says: 

"It  will  be  a  good  defense  that  the  party,  while  absent  on  pass  or  furlough,  was 
prevented  from  returning  at  the  proper  time  by  sickness  or  other  disability,  but  to 
establish  this  excuse  medical  testimony  willgenerally  be  required.  That  theaccused 
was  involuntarily  detained  by  the  force  of  the  elements ,  the  action  of  the  civil  authori- 
ties, the  operations  of  the  enemy,  or  by  being  taken  prisoner  by  the  latter,  may  also 
constitute  a  valid  defense;  but  where  he  has  once  deliberately  absented  himself  with- 
out authority,  the  fact  that  he  was  detained  away  longer  than  he  had  intended  by 
some  agency  beyond  his  control,  will  be  no  sufficient  answer  to  the  accusation." 

Referring  to  the  same  offense,  O'Brien,  in  American  Military  Law  and  Courts- 
Martial  (p.  92),  says: 

"It  is,  of  course,  open  to  the  accused  to  show  by  evidence,  the  causes  of  his  length- 
ened absence,  and  if  he  can  satisfy  the  court  that  he  was  innocent  of  a  criminal  inten- 
tion, but  unavoidably  prevented,  in  spite  of  his  efforts,  from  returning  at  the 
appointed  time,  he  must  be  acquitted. 

"Though  the  prosecution  may,  if. possible,  negative  this  excuse  by  counter- 
testimony,  it  can  never  produce  in  aggravation  of  the  crime  charged,  any  misconduct, 
etc.;  committed  during  the  unauthorized  absence.  If  such  matters  are  to  be  brought 
against  the  accused,  they  must  come  under  separate  charges,  the  accused  being  held 
accountable  only  for  the  specific  acts  alleged  against  him." 

For  an  absence  over  leave  to  be  excusable  it  must  have  been  in  some  lawful  manner 
unavoidable. 

Furthermore,  section  879  of  the  Revised  Statutes  of  the  United  States  provides 
that  a  Federal  court  may,  in  criminal  cases  of  which  it  has  jurisdiction,  "require  of 
any  witness  produced  against  the  prisoner,  on  pain  of  imprisonment,  a  recognizance, 

And  section  881,  Revised  Statutes,  provides  that  in  case  of  a  necessary  witness  on 
a  trial  in  which  the  United  States  are  parties,  etc.,  the  court  may  compel  such  wit- 
ness to  give  a  recognizance  to  appear  and  testify,  and  may  arrest  the  witness  for  that 
purpose,  and  further  provides  that — 

"If  the  person  so  arrested  neglects  or  refuses  to  give  recognizance  in  the  manner 
required,  the  judge  may  issue  a  warrant  of  commitment  against  him,  and  the  officer 
shall  convey  him  to  the  prison  mentioned  therein.  And  the  said  person  shall  remain 
in  confinement  until  he  is  removed  to  the  court  for  the  purpose  of  giving  his  testi- 
mony, or  until  he  gives  the  recognizance  required  by  saia  judge. " 

The  State  laws  also  very  generally,  and  probably  universally,  provide  that  neces- 
sary witnesses  in  criminal  cases  may  be  required  to  give  a  recognizance,  with  sureties, 
to  secure  their  attendance  at  the  trial,  in  default  of  which  they  may  be  committed  to 
jail. 

If  any  person  belonging  to  the  naval  service  is  lawfully  on  shore  on  leave  of  absence 
or  on  liberty  and,  without  any  fault  whatever  on  his  part,  should  be  a  witness  to 
some  occurrence  for  which  he  could  beheld  by  the  civil  authorities,  under  authority 


292  INTENT. 

of  law  as  above  shown,  it  would  be  manifestly  a  legal  excuse,  and  the  presentation  of 
proper  evidence  as  to  the  reason  for  his  detention  on  shore  should  be  sufficient  before 
a  court-martial  to  secure  his  acquittal  of  a  charge  of  absence  over  leave. 

As  an  example  of  what  might  very  possibly  occur  to  persons  in  the  service,  as  well 
as  to  others,  the  following  instance  is  quoted  from  the  Review  (vol.  1,  No.  8;  August, 
1911),  a  monthly  periodical  published  by  the  National  Prisoners'  Aid  Association 
(p.  13): 

"In  Springfield  some  time  ago  one  Giuseppi  Ferreri  was  charged  with  murder. 
Two  witnesses  of  the  crime  alleged,  Antonio  and  Joseph  Galetto,  were  held  as  wit- 
nesses. To  assure  their  nresence  at  the  time  of  trial,  these  two  witnesses  were  required 
to  furnish  bonds  in  SI, 000.  Being  poor,  they  were  unable  to  do  this  and  are  now 
languishing  in  jail.  There  they  will  stay  for  months,  perhaps,  separated  from  their 
families  and  friends,  and  denied  the  privilege  of  earning  a  living. 

"What  has  happened  to  these  two  men  is  likely  to  happen  to  anybody.  They 
are  in  jail  not  because  they  committed  a  crime,  but  because  they  are  supposed  to 
have  seen  one  committed/'  C.  M.  O.  5,  1912,  4-14.  See  also  C.  M.  O.  10,  1911,  0; 
ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  20. 

3.  Assault— Specific  intent  not  necessary  in  simple  assault.    See  ASSAULT,  23. 

4.  Same — Drunkenness.    See  ASSAULT,  17, 18;  DRUNKENNESS,  7-9;  INTENT,  5.  42. 

5.  Assault  and  battery — Specific  intent  need  not  be  alleged  in  assault  (ana  battery) 

the  general  criminal  intent  to  commit  the  act  being  presumed.  Evidence  of  drunk- 
enness is  inadmissible  as  a  defense,  except  in  cases  where  specific  intent  is  necessary 
(robbery,  perjury,  forgery,  burglary,  larceny  (theft),  etc.)  C.  M.  0. 8, 1911,  4-0.  See 
also  ASSAULT,  18. 

6.  Assault,  willful  and  malicious—Drunkenness  is  a  defense  in  so  far  as  it  aflects  the 

capacity  of  the  accused  to  form  the  necessary  specific  intent.    C.  M.  O.  47,  1910,  8. 

7.  Assault  with  Intent  to  kill.    See  ASSAULT,  17. 

8.  Assaulting  and  wounding— No  specific  intent  necessary.    See  ASSAULT,  18. 

9.  Assaulting  with  a  deadly  weapon  and  wounding  another  person  In  the  serv- 

ice.  See  ASSAULT,  17. 

10.  Burglary— Specific  intent  necessary.    See  BURGLARY,  3,  6;  INTENT,  2,  5,  49. 

11.  Carelessly— As  expressing  intent.    See  CHARGES  AND  SPECIFICATIONS,  52. 

12.  Carelessness — A  general  principle,  recognized  in  all  authorities,  is  that  there  may  be 

such  character  of  negligence  or  carelessness  as  will  take  the  place  of  criminal  intent. 
C.  M.  O.  4, 1914,  10. 

13.  Charges  and  specifications— In  cases  where  law  has  adopted  certain  expressions  to 

show  intent,  etc.    See  CHARGES  AND  SPECIFICATIONS,  52;  INTENT,  33. 

14.  Conduct  to  the  prejudice  of  good  order  and  discipline.    C.  M.  O.  42,  1909.  10. 

15.  Constructive  Intent.    See  C.  M.  0. 23, 1911,  5.    See  also  MANSLAUGHTER,  12. 

16.  Corruptly— Expressing  intent.    See  CHARGES  AND  SPECIFICATIONS,  52. 

17.  Criminal  Intent.    See  DESERTION,  77  (p.  175);  EMBEZZLEMENT;  INTENT,  51. 

18.  Desertion.    See  DESERTION. 

19.  Drunkenness — As  affecting  the  intent.     (Roberts  v.  People,  19  Mich.  401.)    See 

ASSAULT,  15-19;  BURGLARY.  3;  DRUNKENNESS,  12,  20,  22,  49-52,  89;  INTENT,  42; 
STATEMENT  OF  ACCUSED,  16. 

20.  Embezzlement.    See  EMBEZZLEMENT,  15, 16. 

21.  Enlistment  record— To  prove  specific  intent  in  desertion.    See  SERVICE  RECORDS, 

10-14, 16. 

22.  "Feloniously"— Intent  alleged  by  use  of  word  "feloniously."    C.  M.  O.  42,  1909,  9-10. 

See  also  ASSAULT.  13, 14;  FELONIOUSLY;  INTENT,  50. 

23.  Forgery— Specific  intent  required.    See  INTENT,  5,  42.  49. 

24.  Fraudulent  enlistment — Intent  to  fraudulently  enlist  as  affected  by  typhoid  fever. 

See  FRAUDULENT  ENLISTMENT,  27. 

25.  Fraudulent  intent.    C.  M.  O.  37,  1883,  6.    See  C.  M.  O.  4,  1914,  4,  for  "intent  to 

defraud." 

26.  General  Intent— Distinguished  from  specific  intent.    See  INTENT,  49. 

27.  Same — Simple  assault.    See  ASSAULT,  15, 16. 

28.  Implied  by  negligence.   See  EMBEZZLEMENT,  18. 

29.  Implied  Intent.   See  C.  M.  O.  23, 1911,  5.    See  also  MANSLAUGHTER,  12. 

30.  Inference— Intent  is  inferred  from  act.    See  INTENT,  49. 

31.  "Intentionally"— As  expressing  intent.    See  CHARGES  AND  SPECIFICATIONS,  52. 

32.  Kill— Intent  to  kill.   See  ASSAULT,  17. 


INTENT.  2915 

33.  "Knowingly"— In  cases  where  the  law  has  adopted  certain  expressions  to  show  the 

Intent  with  which  an  offense  is  committed,  the  intent  shall  be  expressed  by  the 
technical  word  prescribed.  For  example,  a  charge  made  against  an  officer  for  making 
or  for  signing  a  false  muster  must  be  laid  to  have  been  done  "knowingly."  See 
CHARGES  AND  SPECIFICATIONS,  52. 

34.  Language — In  tent  of  language.    See  LANGUAGE,  2. 

35.  Larceny.    See  DRUNKENNESL,  49;  INTENT,  5, 42, 49;  THEFT,  9. 

36.  "Leaving  his  station  before  being  regularly  relieved"— Specific  intent  not  neces- 

sary.   See  INTENT,  2. 

37.  "  Maliciously  " — Intent  expressed  by.    See  CHARGES  AND  SPECIFICATIONS,  52. 

38.  Murder.    See  DRUNKENNESS,  22;  MURDER,  6, 13. 

39.  Natural  and  necessary  consequences — Every  man  of  sound  mind  is  assumed  to 

intend  the  natural  and  necessary  consequences  of  his  own  deliberate  acts.  See 
ACTS,  3. 

40.  Neglect  or  careless  In  obeying  orders,  etc.— Specific  intent  not  necessary.   See 

INTENT,  2. 

41.  Perjury— Specific  intent  required.    See  INTENT,  5,  42,  49. 

42.  Presumption  from  acts— The  accused  was  tried  by  general  court-martial  (station 

case)  on  the  charge  of  "Assaulting  with  a  deadly  weapon  and  wounding  another 
person  in  the  service,"  the  specification  thereunder  alleging  that  the  accused  did 
"willfully,  maliciously  and  feloniously  and  without  justifiable  cause  assault,  and 
cut  with  a  knife"  another  person  in  the  service. 

The  charge  in  this  case  is  based  upon  the  third  clause  of  article  8  of  the  Articles 
for  the  Government  of  the  Navy,  which  reads  as  follows: 

"  Such  punishment  as  a  court-martial  may  adjudge  may  be  inflicted  on  any  person 
in  the  Navy  *  *  *. 

"3.  Or  quarrels  with,  strikes,  assaults,  or  uses  provoking,  or  reproachful  words, 
gestures,  or  menaces  toward  any  person  in  the  Navy." 

Under  the  foregoing  it  is  not  necessary  to  allege  that  the  act  was  done  with  any 
specific  intent,  and  in  the  case  of  United  States  v.  Gallagher  (2  Paine  447;  Fed.  Cas. 
No.  15,  185),  which  was  a  case  of  assault  with  a  dangerous  weapon,  the  court  held 
that  it  was  not  necessary  to  charge  that  the  assault  was  committed  feloniously,  or 
with  intent  to  commit  a  felony. 

In  this  case,  therefore,  the  general  criminal  intent  was  presumed,  and  the  intoxi- 
cation of  the  accused  furnished  no  excuse  for  the  natural  and  probable  consequences 
of  his  act. 

"  The  condition  of  the  prisoner's  mind  not  being  an  element  of  the  offense  of  assault 
and  battery,  evidence  of  the  intoxication  at  the  time  of  the  alleged  offense  is  not 
admissible."  (A.  &  E.  Enc.,  v.  17,  p.  412.) 

"When  a  person  voluntarily  drinks,  and  becomes  intoxicated,  and  while  in  such 
a  condition,  commits  an  act  which  would  be  a  crime  if  he  were  sober,  he  is  nevertheless 
responsible,  the  settled  rule  being  that  voluntary  drunkenness  is  no  excuse.  A 
person  may  be  so  drunk  when  he  commits  an  act  that  he  is  incapable,  at  the  time, 
of  knowing  what  he  is  doing;  but  in  case  of  voluntary  intoxication  a  man  is  not  the 
less  responsible  for  the  reasonable  exercise  of  his  understanding,  memory,  and  will. 
A  drunken  man,  equally  with  a  sober  man,  is  presumed  to  intend  his  acts,  and  the 
natural  and  ordinary  consequences." 

Exceptions  to  the  foregoing  principle  arise  when  a  specific  intent  to  injure  or  to 
do  other  wrong  is  necessary  to  constitute  the  act  charged,  as  in  burglary,  forgery, 
perjury,  and  in  larceny  and  robbery  where  a  specific  intent  to  steal  the  goods  taken 
is  necessary.  But  there  is  no  such  necessary  specificintent  in  an  assault  and  battery. 

"If  injury  would  be  the  natural  consequence  of  the  overt  act  on  the  part  of  the 
aggressor,  an  unlawful  intent  is  presumed,  unless  such  presumption  is  repelled  by 
the  evidence."  (A.  &  E.  Enc.,  v.  2,  p.  954.)  C.  M.  0. 8, 1911, 5.  See  also  ASSAULT  23. 

43.  "Profane  swearing,"  etc. — Specific  intent  not  necessary.    See  INTENT,  2. 

44.  Rape.    See  INTENT,  49. 

45.  Resisting  arrest.    C.  M.  O.  23,  1910,  6.    See  also  RESISTING  ARREST. 

46.  Seditious  words.    See  INTENT,  57;  SEDITION. 

47.  Service  records. — Proof  of  specific  intent  to  desert.    See  SERVICE  RECORDS. 

48.  "  Sleeping  on  watch  " — No  specific  intent  necessary.    See  INTENT,  2. 

49.  Specific  and  general  intent  distinguished — As  to  general  intent: 

"A  presumption  of  a  criminal  intention  may  arise  from  proof  of  the  commission 
of  an  unlawful  act.  The  general  rule  is  that  if  it  is  proved  that  the  accused  committed 
the  unlawful  act  charged  it  will  be  presumed  that  the  act  was  done  with  a  criminal 
intention,  and  it  is  for  the  accused  to  rebut  this  presumption."  (12  Cyc.  152.) 


294  INTENT. 

"  When  the  proof  shows  that  the  unlawful  act  was  done,  the  law  presumes  the  intent, 
and  the  proof  of  the  act,  that  being  in  itself  a  violation  of  the  law,  is  the  proof  of  the 
intent.  So  that  if  these  defendants  are  shown  by  the  evidence  to  have  done  acts  which 
in  themselves  are  violations  of  law,  the  law  presumes  the  intent  and  the  jury  need 
not  look  beyond  the  proof  of  the  unlawful  act  for  proof  of  an  intent  to  violate  the  law." 
(U.  S.  v.  Baldridge,  11  Fed.  Rep.  552,  554.) 

The  foregoing  fairly  describes  what  the  law  means  when  it  speaks  of  a  general  intent. 
As  to  a  specific  intent,  the  rule  above  stated  is  different.  As  set  forth  in  12  Cyc.  152. 

"  The  rule,  however,  does  not  apply  in  the  cases  of  crimes  like  burglary,  assault  with 
intent  to  kill,  or  rape,  etc.,  for  which  a  specific  intent  is  necessary.  Here  the  burden 
is  on  the  State  to  prove,  by  either  direct  or  circumstantial  evidence,  that  the  act  was 
done  with  the  requisite  specific  intent.  But  it  is  sufficient  in  such  cases  to  prove 
facts  from  which  the  specific  intent  may  be  inferred."  (12  Cyc.  152.) 

Thus,  in  robbery  and  in  larceny,  the  specific  intent  is  to  deprive  the  owner  of  his 
property;  in  burglary,  it  is  to  commit  some  felony,  after  breaking  and  entering  the 
dwelling  house  of  another  in  the  nighttime;  in  the  military  offense  of  desertion,  it  is 
the  intent  to  abandon  the  service  or  the  pending  contract  of  enlistment;  and  in  all 
such  cases  the  specific  intent  must  be  proved,  either  directly  or  circumstantially. 
C.  M.  O.  5,  1912,  8-9.  See  also  DESERTION,  77  (p.  175). 

50.  Statutory  intent — "As  a  general  rule,  where  an  act  is  prohibited  and  made  punish- 

able by  statute,  the  statute  is  to  be  construed  in  the  light  of  the  common  law,  and  the 
existence  of  a  criminal  intent  is  essential.  The  legislature,  however,  may  forbid  the 
doing  of  an  act  and  make  its  commission  criminal  without  regard  to  the  intent  of  the 
doer,  and  if  such  an  intention  appears  the  courts  must  give  it  effect  though  the  in- 
tention may  have  been  innocent.  Whether  or  not  in  a  given  case  a  statute  is  to  be  so 
construed  is  to  be  determined  by  the  court  by  considering  the  subject  matter  of  the 
prohibition  as  well  as  the  language  of  the  statute  and  thus  ascertaining  the  intention 
of  the  legislature."  (12  Cyc.  148.) 

"The  legislature  may  enact  laws  for  the  mere  violation  of  which,  irrespective  of 
the  criminal  intent,  penalties  are  attached;  as  for  selling  liquors  to  minors,  selling  adul- 
terated food  and  drugs,  allowing  minors  to  frequent  saloons,  changing  and  obstruct- 
ing public  roads,  maintaining  a  nuisance,  disposing  of  mortgaged  property." 
(8  A.  and  E.  Enc.  L.  291.) 

"There  are  many  instances  where  an  act  may  be  criminal  in  its  character  without 
there  being  a  criminal  intent.  Gross  carelessness  by  which  a  person  may  be  injured 
or  killed,  while  it  may  reduce  the  offense  from  murder  to  manslaughter,  or  modify  the 
penalty,  does  not  wholly  relieve  the  person  guilty  of  it  from  criminal  responsibility. 
Governments,  both  national  and  State,  and  even  municipal,  make  laws  for  protection 
against  articles  such  as  powder  or  glycerine  from  accidents  resulting  from  negligence 
where  no  intention  exists  to  cause  an  injury.  If  persons  violate  those  laws  they 
become  liable  to  the  penalty  prescribed,  because  the  necessity  .for  strict  care  and 
caution  in  regard  to  such  dangerous  substances  requires  that  carelessness  in  regard 
thereto,  from  which  damage  might  result,  should  be  punished  notwithstanding  there 
may  be  an  absence  of  any  criminal  or  felonious  intent."  (In  re  McCoy,  127  U.  S.  731, 
754.) 

"While  intent  is  in  a  certain  sense  essential  to  the  commission  of  a  crime,  and  in 
some  classes  of  cases  it  is  necessary  to  show  moral  turpitude  in  order  to  make  out  a 
crime,  there  is  a  class  of  cases  within  which  we  think  the  one  under  consideration 
falls  where  purposely  doing  a  thing  prohibited  by  statute  may  amount  to  an  offense, 
although  the  act  does  not  involve  turpitude  or  moral  wrong."  (Armour  Packing 
Co.  v.  U.  S.,  209  U.  S.  56,  85,  86.)  C.  M.  O.  5,  1912,  7-8. 

51.  Same — Criminal  intent  is  the  intention  to  do  the  act  charged  and  not  the  intention  of 

violating  the  law — "There  is  nothing  at  all  unusual  in  a  man's  wilfully  and  de- 
liberately doing  the  acts  in  violation  of  laws  of  which  he  is  ignorant.  The  court  is 
not  supposed  to  investigate  and  determine  whether  or  not  the  accused  knew  the  law, 
the  onlyquestion  being  whether  he  willfully  and  deliberately  did  the  acts  with  which 
he  is  charged.  As  plainly  stated  *  *  *  in  Court-Martial  Order  No.  4,  1913,  it  is 
the  intention  to  do  the  act  charged  and  not  the  intention  of  violating  the  law  which 
constitutes  criminal  intent."  (G.  C.  M.  Rec.  26032.)  C.  M.  0. 10, 1913,  4. 

52.  "Suffering  a  vessel  of  the  Navy  to  be  stranded,"  etc. — Specific  intent  not  required. 

See  INTENT,  2. 

53.  Theft.   See  DRUNKENNESS.  49;  INTENT,  5,  42,  49;  THEFT,  9. 

54.  Threatening  to  assault  his  superior  officer  while  in  the  execution  of  the  duties 

of  his  office.    C.  M.  O.  23, 1910, 6. 


INTENT  295 

55.  Unavoidable  force  and  compulsion— It  is  stated  in  De  Hart's  Military  Law  (p. 

164),  referring  to  "compulsion  or  inevitable  necessity"  as  a  plea  in  bar  of  judgment, 
quoting  from  Blackstone's  Commentaries  (4  Com.  26): 

"These  are  a  constraint  upon  the  will,  whereby  a  man  is  urged  to  do  that  which 
his  judgment  disapproves;  and  which  it  is  presumed  his  will  (if  left  to  itself)  would 
reject.  As  punishments,  therefore,  are  only  inflicted  for  the  abuse  of  that  free  will, 
which  God  has  given  to  man,  it  is  highly  just  and  equitable  that  a  man  should  be 
excused  for  those  acts  which  are  done  through  unavoidable  force  and  compulsion. " 
C.  M.  O.  5, 1912, 11. 

56.  Using  abusive,  obscene,  and  threatening  language  toward  his  superior  officer 

C.  M.  0.23,1910,  6. 

57.  Uttering  seditious  words.    C.  M.  0. 14, 1910, 14-15.    See  also  SEDITION. 

58.  "Violating  or  refusing  obedience  to  any  lawful  general  order,"  etc.— No  specific 

intent  necessary.    See  INTENT,  2. 

59.  "  Willfully  "—Intent  expressed  by.    See  CHARGES  AND  SPECHTCATIONS,  52. 

60.  "Wrongfully" — As  expressing  intent.    See  CHARGES  AND  SPECIFICATIONS,  52. 

INTERCRANIAL  HEMORRHAGE.    C.  M.  O.  12,  1915,  9.    See  also  LINE  OF  DUTY  AND 
MISCONDUCT  CONSTRUED,  9. 

INTERFERING  WITH  A  SENTINEL. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 102, 1903,  2. 

INTERLINEATIONS. 

1.  Findings— Should  be  free  from.    See  FINDINGS,  7, 54. 

2.  Sentences— Should  be  free  from.    See  SENTENCES,  58. 

INTERLOCUTORY  PROCEEDINGS.    See  ARGUMENTS,  4. 

INTERNATIONAL  LAW. 

1.  Citizenship— See  CITIZENSHIP. 

2.  Civil  Courts  of  Cuba — Sentenced  an  enlisted  man  to  confinement.    See  CONFINE- 

ment.  6. 

3.  Expatriation — Evidence  of.    See  EXPATRIATION. 

4.  Extradition  treaty— Deserters.    See  JAPAN,  3;  TREATIES. 

5.  Haiti — Convening  of  general  courts-martial  on  foreign  territory.    See  JURISDICTION,  53. 

6.  Same — Gendarmerie.    See  OFFICERS  OF  THE  UNITED  STATES. 

7.  Internment.    See  INTERNMENT. 

8.  Judge  Advocate  General — Duties  with  reference  to  question  of  international  law. 

See  JUDGE  ADVOCATE  GENERAL,  17. 

9.  Jurisdiction— Convening  naval  courts-martial  on  foreign  territory.    See'  JURISDIC- 

TION, 53. 

10.  Marine  League.    See  TARGET  PRACTICE;  WORDS  AND  PHRASES. 

11.  Naturalization— Of  aliens.    See  CITIZENSHIP. 

12.  Same— Filipinos.    See  FILIPINOS,  2, 3. 

13.  Neutral— Engaged'  in  business  in  an  enemy's  country  during  war,  is  regarded  as  a 

citizen  or  subject  of  that  country.    See  CITIZENSHIP,  18. 

14.  Officer  of  the  United  States— Accepting  office  from  a  foreign  state.    Se«  OFFICERS 

OF  THE  UNITED  STATES,  1. 

15.  Philippine  Islands — Naturalization  of  native  Filipino  by  enlistment  in  Navy.    See 

FILIPINOS,  2. 

16.  Prisoners  of  war.    File  28573-6.    See  also  PRISONERS  OF  WAR. 

17.  Retired  officer— Civilemployment  by  foreign  corporation.    See  RETIRED  OFFICERS, 31. 

18.  Spanish  subjects — Who  were  inhabitants  of  the  Philippine  Islands  on  April  11, 1899, 

other  than  those  who  had  elected  to  preserve  their  allegiance  to  Spain,  were  by  the 
act  of  July  1,  1902  (32  Stat.,  691),  declared  "to  be  citizens  of  the  Philippine  Islands 
and  as  such  entitled  to  the  protection  of  the  United  States."  See  FILIPINOS,  3. 

19.  Treaty  with  Japan.    See  JAPAN,  3;  TREATIES. 

20.  Treaty  of  peace  ratified— With  Spain  on  April  11,  1899—  Philippines  were  ceded  to 

United  States.    See  FILIPINOS,  3. 

21.  War  Prisoners.    See  PRISONERS  OF  WAR. 

22.  War  vessels — A  war  vessel  is,  throughout  the  civilized  world,  accorded  rights  of  ex- 

territoriality.   File  3973-136:2,  J.  A.  G.,  Feb.  26, 1916.    See  also  WORDS  AND  PHRASES 

(EXTEBRITOBIAUTY). 


296  JEOPARDY,   FORMER. 

INTERNMENT. 

1.  Belligerents— Interned  in  a  neutral  state.    File  28573-10;  27715-82. 

2.  Neutral  state — Belligerents  interned  in.    See  INTERNMENT,  1. 

3.  Parole— Of  officers  of  a  belligerent  ship  interned  in  a  neutral  state.    File  27715-82. 

INTERPRETATION  OP  STATUTES.    See  STATUTORY  CONSTRUCTION  AND  INTER- 
PRETATION. 

INTERROGATORIES.    See  DEPOSITIONS,  3. 

INTOXICATED  ON  DUTY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  33,  1893.    See  DRUNKENNESS  ON  DUTY, 
4,  for  proper  charge. 

INTOXICATION.    See  also  DRUNKENNESS. 

1.  Acting  sallmaker— Charged  with.    O.  C.  M.  Rec.  0178.    Should  have  been  charged  as 
"Drunkenness." 

INVESTIGATION. 

1.  Index  for.    See  INDEX,  3. 

2.  Oath — Administering  oath  to  witnesses.    See  GOVERNMENT  CONTRACTORS,  5. 

INVESTIGATION,  BOARD  OF.    See  BOARDS  OF  INVESTIGATION. 

INVOLUNTARY  RETIREMENT. 

1.  Laws  relating  to.    See  RETIREMENT  OF  OFFICERS,  28-31. 

IRONS.   See  ARMY,  7;  DOUBLE  IRONS;  SINGLE  IRONS. 

IRREGULARITY  AND  CARELESSNESS  IN  REGARD  TO  DISCHARGE   OF 
PECUNIARY  OBLIGATIONS. 

1.  Officer— Officer  charged  with  "Fraud"  in  violation  of  article  14,  etc.,  and  found  guilty 
in  a  less  degree  of  the  above  offense.    C.  M.  O.  4, 1916,  2. 

IRRESPONSIBLE  MENTALLY.    See  INSANITY,  27. 

JACK-OF-THE-DUST. 

1.  Enlistment  of.    U.  S.  Navy  Reg.  Cir.  No.  5,  June,  1877. 

JAPAN. 

1.  Civil  and  naval  authorities.    See  JURISDICTION,  66. 

2.  Citizenship.    See  CITIZENSHIP,  23. 

3.  Deserters — Extradition  treaty.    File  27403-132,  1916.    See  also  TREATIES. 

4.  Target  practice — Within  territorial  waters  of  Japan.    See  TARGET  PRACTICE. 

JEOPARDY,  FORMER. 

1.  Accumulation  of  charges.   See  ACCUMULATION  OF  OFFENSES;  PLEA  IN  BAR,  1. 

2.  Acquittal  or  conviction.    See  JEOPARDY,  FORMER,  3,  4, 38. 

3.  Commanding  officer  is  not  a  "court-martial"— Counsel  for  accused  conceded 

that  to  constitute  former  jeopardy  there  must  have  been  a  trial  by  a  duly  constituted 
court  and  that  punishment  imposed  without  trial  does  not  bar  subsequent  proceedings 
by  court-martial.  Counsel,  however,  argues  that  the  commanding  officer  of  a  naval 
vessel  in  administering  punishments  without  trial  by  court-martial  is  himself  "a 
duly  constituted  and  legal  court;"  that  the  action  of  the  commanding  officer  in  such  a 
case  is  "purely  judicial,"  and  accordingly  "that  the  accused  has  been  tried  and  con- 
victed and  punished." 

The  Supreme  Court  of  the  United  States  has  said  that  the  commanding  officer  of 
a  naval  vessel  in  punishing  enlisted  men  under  his  command  occupies  a  position  which 
is  "quasi  judicial."  (  Witkes  v.  Dinsman,  7  How.,  88, 129.)  This  accordingly  disposes 


between  two  objects."  (2  Bouvier,  802.)  Furthermore,  the  commanding  officer  of 
a  naval  vessel  does  not  as  a  court  possess  any  power  to  compel  witnesses  to  testify 
under  oath  when  investigating  complaints,  nor  nas  he  any  power  as  a  court  to  compel 
the  attendance  of  witnesses,  although  he  may,  as  commanding  officer,  compel  the  at- 
tendance of  such  witnesses  in  the  case,  if  any,  as  may  be  under  his  command.  It  will 
therefore  be  seen  that  the  commanding  officer's  investigation  of  charges  is  necessarily 


JEOPARDY,   FORMER.  297 

"informal  in  a  judicial  sense,"  more  so  even  than  the  investigation  of  charges  by  a  court 
of  inquiry,  which  has  power  to  compel  the  attendance  of  witnesses,  even  civilians, 
to  take  testimony  under  oath,  and  to  punish  contempts. 

In  an  opinion  of  the  Attorney  General,  he  held  that  a  reprimand  issued  as  a  punish- 
ment by  a  commander  in  chief  is  no  bar  to  subsequent  trial  for  the  same  offense.  In 
that  case  the  punishment  was  inflicted  for  the  offense  pursuant  to  law  and  regulation, 
after  careful  investigation  by  a  court  of  inquiry — a  tribunal  established  by  law. 
(25  Op.  Atty.  Gen.,  623.)  Certainly  such  investigation,  in  which  the  members  of  the 
court,  the  judge  advocate,  and  the  witnesses  are  all  under  oath  and  in  which  the  pro- 
ceedings are  conducted  with  the  formalities  of  a  court-martial,  including  the  power 
to  punish  witnesses  for  contempt,  is  far  more  formal  than  an  investigation  conducted 
by  a  commanding  officer.  Furthermore,  as  the  commander  in  chief  has,  by  law, 
far  more  power  in  a  disciplinary  way  than  the  commanding  officer  of  a  single  vessel, 
his  power  extending  even  so  far  as  to  include  the  ordering  and  reviewing  of  general 
courts-martial,  certainly  a  reprimand  administered  by  him  as  a  punishment,  especi- 
ally after  the  facts  have  all  been  developed  and  reported  to  him  by  a  court  of  inquiry, 
should  be  more  far-reaching  as  a  plea  in  bar  than  a  punishment  inflicted  by  a  com- 
manding officer  after  an  informal  investigation  not  under  path  and  of  which  no  record 
is  required  to  be  kept.  If  a  court  of  inquiry  after  completing  an  exhaustive  investiga- 
tion should  decide  that  the  accused  is  not  to  blame  and,  therefore,  recommend  that 
no  further  action  be  taken,  this  is  not  an  acquittal  nor  is  it  conclusive  upon  superior 
authority;  so,  as  held  by  the  Attorney  General,  if  the  court  of  inquiry  finds  the  accused 
was  to  blame  and  recommends  that  ne  be  punished  by  the  commander  in  chief,  such 
recommendation  and  punishment  imposed  pursuant  thereto  does  not  bar  subsequent 
trial  by  court-martial  for  the  same  offense.  This  being  the  case,  it  is  reductio  ad  ab- 
surdum  to  contend  that  an  informal  investigation  conducted  by  the  commanding 
officer,  who  decides  that  the  accused  is  free  from  blame,  is  an  acquittal  by  a  duly 
constituted  and  legal  court,  and,  therefore,  is  a  bar  to  trial  by  general  court-martial. 
C.  M.  O.  7,  1914,  8-9.  See  also  G.  C.  M.  Rec.  13370. 

A  person  who  has  been  punished  by  his  commanding  officer  for  an  offense,  if  subse- 
quently brought  to  trial  therefor,  may  show  such  fact  in  evidence  in  mitigation  of  such 
sentence  as  the  court,  in  the  event  of  conviction,  may  impose.  File  26251-8144, 
J.  A.  G.,  Nov.  22,  1913. 

4.  Constitutional  provision — The  principle  of  the  Constitution  that  no  person  shall 
"  be  subject  for  the  same  offense,  to  be  twice  put  in  jeopardy  of  life  or  limb  "  is  derived 
to  us  immediately  from  the  common  law.  To  give  benefit  to  this  it  is  necessary  that 
he  should  have  been  actually  acquitted  or  convicted  on  a  former  trial  and  the  record 
of  this  fact  must  be  produced.  C.  M.  O.  7, 1914, 5. 

It  is  a  principle  of  common  humanity,  a  universal  rule  of  law,  and  an  express  pro- 
vision of  the  Constitution,  that  no  man  shall  be  twice  put  in  jeopardy  for  the  same 
offense.  The  law  protects  an  officer  from  being  tried  even  once  for  an  offense  more 
than  two  years  old.  File  26260-1392,  697,  J.  A.  G.,  June  29,  1911,  pp.  27-28. 

5.  Constitutional  right — The  right  of  an  accused  to  plead  former  jeopardy  before  a 

naval  court-martial  can  not  be  directly  claimed  under  the  Constitution,  in  view  of 
the  decisions  of  the  Supreme  Court  that  "the  power  of  Congress,  in  the  government 
of  the  land  and  naval  forces  and  of  the  militia,  is  not  at  all  affected  by  the  fifth  or 
other  amendment."  File  26251-2993,  J.  A.  G.,  March  10, 1910.  See  also  JEOPARDY, 
FORMER,  24. 

6.  Court— Illegally  constituted— No  former  jeopardy.    See  DECK  COURTS,  26. 

7.  Court  of  inquiry — Punishment  imposed,  pursuant  to  findings  and  recommenda- 

tions of  a  court  of  inquiry,  by  a  commander-in-chief  does  not  bar  subsequent  trial  by 
court-martial  for  same  offense.  C.  M.  O.  7,  1914, 9.  See  also  COURTS  OF  INQUIRY,  29; 
JEOPARDY,  FORMER,  3;  PRIVATE  REPRIMANDS,  3. 

Where  the  convening  authority  of  a  court  of  inquiry  (fleet)  states  that  "no  further 
proceedings  recommended,"  the  department  may  either  reconvene  the  court  of 
inquiry  or  convene  a  court-martial  for  the  trial  of  defendants.  File  2639-04. 

8.  Court-martial  trial — The  only  disciplinary  action  by  naval  authority  which  would 

bar  subsequent  trial  by  court-martial  for  an  offense  is  a  former  trial  by  court-martial 
for  the  same  offense,  and  the  commanding  officer  is  not  in  any  sense  a  "court-martial " 
within  the  meaning  of  this  rule.  C.  M.  O.  7,  1914,  1;  31,  1914,  1.  See  also  C.  M.  O. 
49, 1910, 16;  JEOPARDY,  FORMER.  3. 

9.  Deck  court.    See  DECK  COURTS,  26. 

10.  Department's  letter— Of  reprimand;    See  JEOPARDY,  FORMER, 30. 


298  JEOPARDY,    FORMER. 

11.  Foreign  court— The  fact  that  an  officer  was  punished  by  a  Mexican  court  does  not 

bar  his  trial  by  general  court-martial  for  the  same  misconduct;  nor  does  the  fact  that 
he  was  suspended  by  his  commanding  officer  for  unoflicerlike  conduct,  based  upon 
the  same  occurrences,  bar  court-martial  proceedings.  File  26251-8144,  J.  A.  G.,  Nov. 
22, 1913.  See  also  JEOPARDY,  FOKMER,  45,  46;  STATE,  7. 

12.  Formal  reprimand.    See  JEOPARDY,  FORMER,  19. 

13.  Former  punishment— Every  kind  of  "former  punishment"  does  not  constitute  a 

valid  bar  to  subsequent  trial  by  court-martial.  The  punishment,  to  constitute  a 
valid  bar,  must  be  "punishment"  in  its  legal  sense  and  not  a  mere  punishment  ad- 
ministered by  some  authority  whose  inherent  power  authorizes  him  so  to  do.  14, 
J.  A.  G.,  359J. 

14.  Insanity— Where  accused  is  insane  at  time  of  trial.    See  INSANITY.  32. 

15.  Jurisdiction  of  court— Offense  committed  while  under  Army  jurisdiction  and  accused 

tried  by  naval  court-martial.  C.  M.  O.  31,  1915,  &-10.  See  also  MARINES  SERVING 
WITH  ARMY,  2, 3, 7. 

16.  Same— Regular  Navy  on  board  Naval  Militia  ship.    C.  M.  O.  49,  1915,  16-20.    See 

also  C.  M.  O.  10,  1915.  11-12;  NAVAL  MILITIA,  39-41: 

17.  Limitations.    See  C.  M.  O.  21, 1885, 11. 

18.  Mexican  civil  court.   See  JEOPARDY,  FORMER,  11. 

19.  Navy  Regulations,  19O9— Provided:  "  No  officer  who  has  been  formally  reprimanded 

for  an  offense  shall  be  subsequently  tried  therefor,  nor  shall  that  offense  be  the  subject 
again  of  inquiry,  except  when  it  may  be  indispensable  to  prove  a  particular  habit 
charged;  a  private  reprimand,  however,  is  no  bar  to  subsequent  investigation  and 
trial. "  (Art.  265.)  "Whenever  any  person  in  the  Navy  who  has  been  placed  under 
suspension,  in  arrest,  or  confinement,  or  otherwise  punished  for  misconduct,  is  released 
and  entirely  discharged  by  competent  authority,  such  discharge  shall  be  a  bar  to 
further  disciplinary  proceedings  in  the  case  by  any  naval  authority. "  (Art.  280.) 
Both  of  these  provisions,  however,  were  stricken  out  before  Navy  Regulations,  1913 
were  issued.  See  C.  M.  O.  50, 1893,  5;  File  1493-04,  overruling  C.  M.  O.  9,  1893. 

20.  Philippine  Islands  civil  court.   See  JEOPARDY.  FORMER,  45,  46. 

21.  Previous  punishment — "The  accused  pjeaded,  in  bar  of  trial,  that  he  had,  by  pun- 

ishment, already  expiated  the  offense."  G.  O.  137,  Sept.  7,  1869.  See  also  C.  M. 
O.  57, 1900. 

22.  Previous  punishment  by  commanding  officer— By  reduction,  confinement,  and 

working  under  custody  of  a  sentinel  does  not  constitute  a  good  bar.  C.  M.  O.  7, 
1914  5. 

23.  Principles  of — In  an  opinion  rendered  by  the  Attorney  General,  August  29, 1819  (1  Op 

Atty.  Gen.,  294),  it  was  held  that— 

A  plea  before  a  court-martial  of  a  former  arrest  and  discharge  is  bad;  a  former 
trial,  only,  is  a  defense  under  the  eighty-seventh  article  of  the  Rules  and  Articles 
of  War. 

The  principle  of  the  Constitution  that  no  person  shall  "be  subject  for  the  same 
offense,  to  be  twice  put  in  jeopardy  of  life  or  limb"  is  derived  to  us  immediately 
from  the  common  law.  It  is  a  maxim  of  this  law  "that  a  man  shall  not  be  brought 
into  danger  of  his  life  more  than  once  for  the  same  offense;"  but  to  give  the  benefit 
of  this  maxim  it  is  necessary  that  he  should  have  been  actually  acquitted  or  convicted 
on  a  former  trial  and  the  record  of  this  fact  must  be  produced. 

In  an  opinion  rendered  July  31,  1883,  by  the  Bureau  of  Military  Justice,  War 
Department,  the  rule  with  respect  to  the  effect  of  punishment  imposed  by  command- 
ing officers  was  stated  as  follows: 

"In  this  case  the  prisoner  was  arraigned  on  the  charge  of  drunkenness  on  duty 
while  a  sergeant  in  command  of  a  guard  having  charge  of  prisoners  en  route  to  the 
military  prison.  He  pleaded  in  bar  of  trial  that  he  had  been  previously  punished 
for  the  offense  by  reduction,  confinement,  and  working  under  custody  of  a  sentinel. 
The  court  sustained  the  plea  and  the  case  is  now  submitted  for  the  action  of  the 
convening  officer.  The  redaction  and  confinement  of  this  man  as  stated  constituted 
no  good  bar  to  his  trial  for  offense  charged,  however  it  might  affect  the  quantum 
of  punishment  to  be  adjudged  upon  conviction  of  the  offense.  The  action  of  the 
court  is  unusual  and  without  sanction  of  law."  (R.  47,  p.  242,  Dig.  J.  A.  G.  Army 
Digest,  1912,  p.  519(2).) 

"  Former  punishment. — The  plea  of  former  punishment,  i.  e.,  that  the  accused  has 
already  been  adequately  punisned  for  his  offense  by  his  commanding  officer,  though 
recognized  in  the  English  practice,  is  not  known  to  our  military  law,  and  when 
made  on  our  military  trials  nas  been  properly  overruled.  Where  indeed  an  accused 


JEOPARDY,    FORMER.  299 

has,  prior  to  trial,  been  subjected,  on  account  of  his  offense,  to  any  physical  punish- 
ment, or  to  reduction  to  the  ranks,  or  to  a  protracted  arrest,  or  other  unusual  or 
unauthorized  discipline,  he  may  properly  show  the  fact  in  evidence  on  the  general  is- 
sue, in  mitigation  of  such  sentence  as  the  court,  in  the  event  of  his  conviction,  may 
impose.  But.  except  in  this  form,  he  can  not  avail  himself  of  such  circumstances, 
upon  a  trial.''  (1  Winth.,  p.  411.) 

"The  Constitution  of  the  United  States,  Article  V,  provides  that  no  person  shall 
'be  subject,  for  the  same  offense,  to  be  twice  put  In  jeopardy  of  life  or  limb,'  and 
this  guarantee  is  applied  to  persons  subject  to  military  jurisdiction  by  the  terms  of 
the  one  hundred  and  second  article  of  war,  which  are  as  follows: 

"ABTICLE  102. — No  person  shall  be  tried  a  second  time  for  the  same  offense. 

"'Tried,'  as  here  used,  means  duly  prosecuted  before  a  legally  organized  and  com- 
petent court-martial  to  final  conviction,  or  acquittal.  Nothing  short  of  'conviction' 
or  'acquittal'  will  justify  acceptance  of  the  plea."  (Dudley,  p.  99,  par.  194.) 

In  an  opinion  rendered  by  the  Attorney  General,  June  15,  1906  (25  Op.  A.  G., 
623),  it  was  held,  quoting  syllabus: 

"A  private  reprimand,  administered  by  the  commander  in  chief  of  a  fleet  to  a 
naval  officer  in  accordance  with  the  recommendation  of  a  court  of  inquiry,  as  a  pun- 
ishment for  an  offense,  such  as  neglect  of  duty,  is  no  bar  to  a  subsequent  trial  of  such 
officer  by  general  court-martial  for  the  same  offense. 

"The  proceedings  of  a  board  of  inquest  or  of  a  court  of  inquiry  are  in  no  sense  a 
trial  of  an  issue  or  of  an  accused  person.  These  boards  perform  no  real  judicial 
function,  but  are  convened  only  for  the  purpose  of  informing  the  department  in  a 
preliminary  way  as  to  the  facts  involved  in  the  inquiry. 

"The  jeopardy  of  the  law  means  real  peril,  originally  of  life  or  limb,  and  always 
of  substantial  punishment  or  penalty.  There  must  be  a  trial  upon  an  indictment 
for  an  offense,  or  upon  some  equivalent  charge^nd  presentment,  as  by  court-martial, 
submitting  a  definite  issue  and  involving  conviction  or  acquittal." 

To  the  same  effect  sec  also  Forms  of  Procedure  for  Courts  and  Boards  in  the  Navy 
and  Marine  Corps,  1910,  p.  23: 

"Plea  of  former  jeopardy,— The  jeopardy  of  the  law  means  a  real  peril,  originally 
of  life  or  limb,  and  always  of  substantial  punishment  or  penalty.  A  fundamental 
idea  is  that  there  must  be  a  trial  upon  am  ndictment  for  an  offense,  or  upon  some 
equivalent  charge  and  presentment,  as  by  a  court-martial,  submitting  a  definite 
issue  and  involving  conviction  or  acquittal.  The  person  must  be  in  danger  of  con- 
demnation; a  mere  inquiry  or  other  informal  proceeding  (informal  in  a  judicial  sense) 
ending  in  a  reprimand  does  not  satisfy  either  element  of  the  principle  of  second  jeop- 
ardy. Of  course,  if  there  is  a  trial  in  some  form,  which  might  result  In  conviction 
and  punishment,  the  jeopardy  is  none  the  less  complete  and  valid  as  a  bar  to  another 
trial  because,  in  fact,  it  issues  in  a  simple  rebuke;  for  absolute  acquittal,  if  the  peril 
is  real,  is  equally  a  bar.  This  plea  is,  therefore,  a  valid  bar  when  the  accusea  has 
been  duly  prosecuted  before  a  court-martial  to  a  final  conviction  or  acquittal;  he 
may,  however,  waive  objection  to  a  second  trial.  (25  Opins.  A.  G.,  623.)"  C.  M.  O. 
7,  1914,  5-6. 
24.  Same — The  fifth  amendment  to  the  Constitution  of  the  United  States  provides: 

"Nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb." 

"This  principle  is  derived  to  us  immediately  from  the  common  law"  (1  Op.  Atty. 
Gen.  294;  6  Op.  Atty.  Gen.  204). 

It  embodies  the  common-law  rule  in  criminal  trials  as  expressed  in  the  pleas  of 
"autresfoits  acquit"  (former  acquittal),  and  "autresfoits  convict"  (former  conviction) 
(1  Op.  Atty.  Gen.  240). 

It  follows  that  no  person  can  be  twice  tried  for  the  same  offense  unless  he  expressly 
or  impliedly  waives  nis  right  to  plead  his  former  trial  in  bar  to  the  second  prosecution. 

However  "every  citizen  of  the  United  States  is  also  a  citizen  of  a  State  or  a  Terri- 
tory. He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and  may  be  liable  to 
punishment  for  an  infraction  of  the  laws  of  either.  The  same  act  may  be  an  offense 
or  transgression  of  the  laws  of  both.  Thus,  an  assault  upon  the  marshal  of  the  United 
States,  and  hindering  him  in  the  execution  of  legal  process,  is  a  high  offense  against 
the  United  States,  for  which  the  perpetrator  is  liable  to  punishment;  and  the  same 
act  may  be  also  a  gross  breach  of  the  peace  of  the  State,  a  riot,  an  assault,  or  a  murder, 
and  subject  the  same  person  to  a  punishment,  under  the  State  laws,  for  a  misdemeanor 
or  a  felony.  That  either  or  both  may  (if  they  see  fit)  punish  such  an  offender  tan 
not  be  doubted.  Yet  it  can  not  be  truly  averred  that  the  offender  has  been  twice 


JEOPARDY,    FORMER. 

punished  for  the  same  offense;  but  only  that  by  one  act  he  has  committed  two  offenses, 
for  each  of  which  he  is  justly  punishable."  (Moore  v.  Illinois,  14  How.  20. ) 

It  will  be  seen  from  the  foregoing  that  while  no  person  may  be  twice  tried  for  the 
same  offense,  where  an  officer  or  enlisted  man  of  the  Navy  violates  the  law  of  a  State 
and  the  same  act  is  also  a  violation  of  the  law  of  the  United  States,  to  wit.  the  Articles 
for  the  Government  of  the  Navy,  he  may  be  tried  by  the  State  court  for  violations 
of  the  State  law,  and  may  thereafter  be  tried  by  naval  court-martial  for  his  offense 
against  the  law  of  the  United  States  involved  in  the  same  act.  Held,  an  officer  or 
an  enlisted  man  of  the  naval  service  who  has  been  tried  by  a  State  court  and  acquitted 
or  convicted,  may  be  tried  for  the  same  act  by  a  naval  court-martial.  File  26504-285, 
J.  A.  G.,  July  15,  1916.  Seealso  G.  0. 137, 1869;  152,  March  29, 1870;  C.  M.  O.  9, 1893,  4; 
44,  1893;  50,  1893;  33,  1896;  18,  1897,  2;  90,  1897,  2;  104,  1897;  155,  1901,  3;  164,  1901;  169, 
1901;  29,  1914;  13  J.  A.  G.  123;  JEOPARDY.  FORMER,  45,  46;  STATE,  7. 

25.  Private  reprimand— A  private  reprimand  is  not  such  a  punishment  as  to  constitute 

an  effective  plea  in  bar  of  further  proceedings  before  a  general  court-martial,  under 
the  jeopardy  clause  of  the  Constitution.  File  4579-7;  Op.  Atty.  Gen.,  June  15, 1906 
(25  Op.  Atty.  Gen.  623).  File  4579-7.  See  also  JEOPARDY,  FORMER,  19. 

26.  Same— "The  accused  pleaded  in  bar  of  trial  the  fact  that  he  had  been  privately  repri- 

manded for  the  offenses  for  which  he  was  about  to  be  tried,  which  plea  was  over- 
ruled by  the  court."  Accused  was  acquitted.  C.  M.  O.,  28, 1907,  3. 

27.  Public  reprimand— See  JEOPARDY,  FORMER,  29,  30;  PLEA  IN  BAR,  6. 

28.  Real  "legal "  peril— There  must  be  some  real  "legal"  peril.    A  mere  inquiry,  ending 

in  a  reprimand,  is  not  sufficient  to  prevent  a  subsequent  trial  for  the  offense.  File 
26251-2993,  J.  A.  G.,  March  10, 1910. 

29.  Reprimand — A  reprimand  administered  to  an  enlisted  man  does  not  bar  subsequent 

trial  of  such  enlisted  man  by  general  court-martial  provided  that  the  reprimand  was  not 
administered  pursuant  to  sentence  of  court-martial.  File  26836-16,  J.  A.  G.,  Dec.  9, 
1913.  See  also  File  26251-2993,  J.  A.  G.,  March  10,  1910. 

30.  Same^The  accused  pleaded  in  bar  of  trial  on  the  ground  of  former  jeopardy,  he  having 

received  a  letter  of  reprimand  from  the  department  which  ended  with  these  words, 
"  You  will  acknowledge  receipt  of  this  communication,  a  copy  of  which  will  be  placed 
with  your  record  and  the  incident  will  be  considered  closed."  The  court  overruled 
the  plea  and  found  the  accused  guilty.  The  department  approved.  The  case  was 
sent  to  the  Attorney  General  who  upheld  the  action  of  the  court  and  the  department. 
G.  C.  M.  Rec.  21478;  21478 a,  p.  5.  Seealso  Op.  Atty.  Gen.,  June  15, 1906  (25  Op.  Atty. 
Gen.,  623);  File 26251-6297:9;  PLEA  IN  BAR,  6. 

Letters  of  reprimand  were  addressed  by  a  commander  in  chief  of  a  fleet  to  an  officer, 
in  consequence  of  the  recommendation  of  a  court  of  inquiry.  Later  this  officer  was 
brought  to  trial  by  general  court-martial  for  the  same  offense  for  which  he  had  been 


31.  Same — A  reprimand  administered  to  an  enlisted  man  does  not  bar  subsequent  trial 

of  such  enlisted  man  by  general  court-martial  provided  that  the  reprimand  was  not 
administered  pursuant  to  sentence  of  court-martial.  File  26836-16,  J.  A.  G.,  Dec. 
9, 1913. 

32.  Restored  to  duty — Restoration  to  duty  between  the  date  of  arrest  and  the  date  of 

trial  can  not  be  the  basis  of  a  valid  plea  in  bar  of  trial.  This  has  heretofore  been  de- 
cided in  specific  cases  in  accordance  with  the  opinions  of  the  Attorney  General,  and 
the  regulations  which  at  one  time  provided  that  men  should  not  be  tried  after  restora- 
tion to  duty  were  revoked  some  years  ago.  Accordingly  there  is  no  authority  for  the 
statement  that  such  action  bars  trial  by  naval  court-martial.  File  26251-6297:9. 
Sec.  Navy,  Dec.  28,  1914;  C.  M.  O.  6,  1915,  15.  See  also  File  26251-8539:1. 

33.  Restriction— Previous  punishment  by  restriction  to  the  ship  on  which  accused  was 

serving.  Court  overruled  the  plea  in  bar  and  accused  then  pleaded  "guilty". 
Department  stated  that  the  court  erred  in  so  doing.  C.  M.  O.  38,  1894,  3.  This 
decision  of  the  department  has  been  overruled  by  its  later  decision  in  C.  M.  O.  4, 
1914. 

34.  Revision— Evidence  may  not  be  admitted  in  revision  because  the  accused  having 

once  been  "placed  in  jeopardy"  and  the  trial  once  been  finished  he  is  protected 
against  being  again  tried  in  whole  or  in  part  for  that  offense,  which  is  in  effect  what 
would  be  done  were  additional  testimony  permitted  in  revision.  C.  M.  O.  5, 1914,  6. 
Returning  the  record  for  a  revision  of  its  findings  or  sentence  does  not  constitute 
trying  the  accused  a  second  time  for  the  same  offense.  (Ex  parte  Reed,  100  U.  S.  13; 


JEOPARDY,    FORMER.  301 

i 

Swaim  v.  U.  8.,  165  U.  S.  553;  Carter  v.  McClaughry,  183  U.  S.  365;  6  Op.  Atty.  Gen. 
204,  205.) 

35.  Secretary  of  the  Navy— The  Secretary  of  the  Navy  has  the  right  to  censure  a  sub- 

ordinate, publicly  or  privately,  for  negligence  or  inefficiency  in  the  performance  of 
duty,  or  for  conduct  bringing  discredit  upon  the  service.  Such  rebuke  may  be  pub- 
lished to  the  service  in  such  manner  as  the  department  may,  in  its  discretion,  decide, 
and  does  not  constitute  a  bar  to  subsequent  trial  for  that  offense  by  court-martial. 
It  is  the  mere  exercise  of  the  Secretary's  right  of  administration  of  discipline  and  is 
in  no  wise  connected  with  his  power  of  reviewing  authority  wherein  he  merely 
executes  the  sentence  of  public  reprimand  imposed  by  the  court.  File  26251-2993, 
J.  A.  G.,  March  10, 1910.  See  also  SECRETARY  OF  THE  NAVY,  63. 

36.  Specifications— Struck  out  by  court — Where  the  court,  on  motion  of  counsel  for  the 

accused,  strikes  out  a  charge  and  specification  because  they  "alleged  several  distinct 
and  separate  offenses,  "•  the  accused ' '  may  still  be  tried  for  the  off  enses  stated  therein, " 
inasmuch  as  the  charge  and  specification  in  question  were  stricken  out  as  invalid 
C.  M.  0. 16, 1911,  4. 

Proceedings  upon  a  "fatally  defective"  specification  do  not  constitute  former 
jeopardy.    C.  M.  O.  22,  1916,  6.    See  also  DECK  COURTS,  59. 

37.  Same— Faulty  deck  court  specifications.    See  DECK  COURTS,  59. 

38.  Same — When  called  upon  to  plead  before  a  summary  court-martial,  the  accused, 

through  his  counsel,  objected  to  the  specification  as  "fatally  defective."  The  court 
sustained  the  objection  of  the  accused  and  notified  the  convening  authority  as  re- 
quired by  Forms  of  Procedure  that  the  accused  submitted  a  plea  in  bar  of  trial  which 
tne  court  decided  was  a  valid  one.  Thereupon  the  convening  authority  withdrew 
the  specification  and  directed  prosecution  thereon  be  discontinued. 


cour 

in  the  previous  case.  The  accused  was  represented  by  the  same  counsel,  who  now 
entered  a  plea  of  former  jeopardy,  in  support  of  which  he  contended  that  the  accused 
had  already  been  tried  for  the  same  offenses. 

The  court  overruled  the  plea  of  former  jeopardy  thus  interposed  by  the  accused, 
who  thereupon  "noted  an  objection"  and  "stood  mute"  upon  arraignment.  The 
court  found  both  specifications  proved,  with  a  slight  modification  in  o,ne,  and 
adjudged  a  sentence. 

That  the  accused  was  not  placed  in  jeopardy  upon  the  original  specification,  and 
that  the  court  properly  overruled  his  plea  on  this  ground,  is  established  by  precedent. 
(SeeC.  M.  O.  7,  1914;  see  also  U.  S.  v.  Rogoff,  163  Fed.  Rep.  311.)  In  the  case  last 
cited,  it  was  said  by  the  court: 

"It  is  difficult  to  see  how  the  dismissal  of  an  indictment  before  the  case  goes  to 
the  jury,  when  this  dismissal  is  had  upon  the  ground  that  no  charge  sufficient  in 
law  has  ever  been  made  against  the  defendant,  can  be  said  to  have  placed  him  in 
jeopardy.  The  entire  transaction,  from  the  finding  of  the  indictment  to  the  dis- 
missal, is  made  a  nullity,  and  the  defendant  comes  before  the  court  upon  the  second 
indictment  as  if  the  first  charge  had  never  been  made. 

"The  court,  having  jurisdiction  of  the  defendant  nevertheless  had  no  jurisdiction 
over  the  offense  which  was  attempted  to  be  charged,  inasmuch  as  no  offense  was 
charged,  and  the  defendant  was  therefore  never  in  a  position  of  jeopardy  before  a 
jury  which  was  called  to  pass  upon  any  sufficient  criminal  charge.  Tie  matter 
was  disposed  of  as  a  question  of  law,  with  the  same  effect  as  if  it  had  been  argued 
upon  demurrer  to  the  indictment." 

The  point  which  particularly  deserves  the  department's  notice  in  this  connection 
is  the  fact,  as  shown  above,  that  we  here  have  the  same  accused,  before  the  same 
court,  and  represented  by  the  same  counsel— an  officer  of  the  Navy — first  contending 
that  the  original  specification  against  him  was  "fatally  defective,"  and  then,  when 
he  had  secured  a  favorable  ruling  upon  this  point,  wholly  changing  front  and  contend- 
ing that  the  aforesaid  specification  was  a  "valid  indictment." 

The  evils  that  would  result  were  accused  persons  permitted  to  assume  inconsistent 
positions  in  court  as  their  interests  might  happen  to  change  in  the  course  of  criminal 
proceedings  are  so  obvious  as  to  require  little  comment.  The  opportunity  thus 
presented  for  the  guilty  to  escape  punishment  would  result  in  placing  a  premium 
upon  the  ability  of  ingenious  attorneys  to  confuse  and  mislead  the  court  in  order 
to  obtain  decisions  in  their  favor,  only  to  insist  upon  the  incorrectness  of  such  deci- 
sions when,  after  conviction,  it  should  become  to  the  interest  of  their  clients  to  do  so. 


302  JEOPARDY,    FORMER. 


"  But  the  principle  is  well  settled  that,  in  criminal  as  well  as  in  civil  cases,  a 
defendant  must  beheld  to  the  position  which  he  assumes  and  upon  which  he  requests 
and  secures  a  favorable  judgment  or  other  personal  advantage."  (People  v.  Moakim, 
61  Hun.  (N.  Y.)327.) 

In  the  case  cited,  the  court,  upon  a  former  trial,  had  directed  an  acquittal  upon  the 
ground  of  a  variance  between  the  proof  and  the  facts  charged  in  the  indictment.  A 
second  indictment  was  found  for  the  same  offense,  upon  the  trial  of  which  the  defend- 
ants urged  that  in  fact  there  was  no  material  variance  between  the  proof  upon  the 
former  trial  and  the  allegations  of  the  first  indictment;  that  therefore  the  defendants 
had  been  once  put  in  jeopardy;  and  consequently  the  second  indictment  was  within 
the  constitutional  prohibition. 

The  court,  however,  declined  to  consider  the  question  thus  attempted  to  be  raised, 
holding  that  "whether  the  variance  referred  to  was  or  was  not  material,  we  think 
the  defendants  can  not  now  be  permitted  to  question  the  position  which  they  took 
upon  that  head  on  the  former  trial.  The  record  of  that  trial  distinctly  shows  that 
the  defendants  there  claimed  that  the  variance  was  material;  *  *  *  having 
requested  the  court  to  rule  in  their  favor  in  these  particulars,  and  the  court  having 
thereupon  directed  an  acquittal  upon  these  very  grounds,  they  can  not  now  be  heard 
to  say  that  there  was  no  material  variance.  *  *  *  In  other  words,  they  must, 
under  such  circumstances,  take  the  acquittal  as  it  was  directed  and  record'ed,  and' 
they  can  not  now  be  permitted  to  go  behind  the  record  as  it  was  thus  made  up." 

The  principle  has  been  stated  in  accordance  with  this  case  by  Bishop  in  his  work 
on  Criminal  Law  (7th  ed.,  sec.  1000)  and  has  been  applied  in  numerous  reported 
decisions,  for,  as  was  said  by  the  court  in  United  States  v.  Jones  (31  Fed.  Rep.  725), 
"while  counsel  may  go  to  great  length  in  defense  of  one  charged  with  crime,  they 
can  not  be  heard  to  "blow  hot  and  cold  upon  the  same  issue  in  the  same  record."  (See 
also  State  v.  Meekine.  41  La.  Ann.  543:  United  States  v.  RogofT.  163  Fed.  Rep.  311). 

Without  further  citation  of  authorities,  it  is  sufficiently  clear  that  the  original 
specification  preferred  against  Corpl.  *  *  *  must  now  be  taken  as  "fatally  defec- 
tive" in  accordance  with  counsel's  contention  which  was  sustained  by  the  court. 
This  being  so,  there  is  an  end  to  the  matter,  the  plea  of  former  jeopardy  based  upon 
proceedings  which,  at  the  instance  of  the  accused,  were  declared  a  nullity,  having 
no  support  in  law  wholly  aside  from  the  fact  that  said  proceedings  did  not  advance 
to  the  stage  required  under  the  citations  given  above  to  operate  as  a  bar  of  trial  File 
26287-3475,  J.  A.  G.,  July  5,  1916,  approved  by  Sec.  Navy,  July  5,  1916;  C.  M.  O.  22, 
1916,  6-8. 

39.  State  courts.    See  JEOPARDY,  FORMER,  24,  45, 46. 

40.  Summary  court-martial  trial — Court  sustained  the  plea  in  bar  of  trial  the  accused 

proving  that  he  had  been  tried  by  summary  court-martial  for  the  offenses.  G.  O. 
152,  March  29,  1870. 

41.  Suspension  from  duty — By  commanding  officer,  although  imposed  as  punishment 

for  an  offense,  does  not  bar  subsequent  trial  by  general  court-martial  for  the  same 
offense.  C.  M.  O.  7,  1914, 1;  31, 1914,  1.  See  also  G.  C.  M.  Rec.  13370. 

42.  Same— Where  an  officer  suspended  from  duty  for  a  few  hours  was  subsequently  court- 

martialed,  his  suspension  can  not  be  regarded  as  punishment  for  the  same  offense. 
Bishop  v.  U.  S.  (38  Ct.  Cls.  473,  474). 

43.  Tagged  "Thief"— Accused  charged  with  theft  and  pleaded  guilty.    After  the  trial 

was  finished  it  came  to  the  knowledge  of  the  court  that  the  accused  had  been  pun- 
ished by  having  the  tag  "  Thief"  hung  about  his  neck.  In  the  interests  of  substantial 
justice,  the  court  reopened  the  case,  and  permitted  the  accused  to  enter  a  plea  in 
bar  of  trial.  File  799-94.  SeealsolZ  J.  A.  G.  457,  Aug.  18, 1905,  where  accused  pleaded 
in  bar  that  the  Academic  Board  had  already  punished  him  by  giving  him  a  mark 
of  zero  in  seamanship  and  navigation,  and  court  improperly  sustained  plea.  But  see 
JEOPARDY,  FORMER,  8, 13,  22,  23,  24,  28,  overruling  these  decisions. 

44.  Tried  twice  for  same  offense— Man  should  not  be  tried  twice  for  the  same  offense 

under  different  charges,  the  facts  alleged  in  the  specifications  being  the  same.  Where 
man  was  tried  by  deck  court  for  jumping  ship  and  convicted,  and  was  later  tried 
and  convicted  of  absence  without  permission,  the  facts  alleged  in  the  specifications 
of  both  offenses  being  the  same,  the  second  case  was  disapproved  by  the  depart- 
ment. File  27217-21.  See  also  C.  M.  O.  49,  1910,  16;  STATE,  7.  But  see  C.  M.  O.,3, 
1916,  7-8. 

45.  United  States  courts— A  person  may  not  be  tried  twice  for  the  same  offense  (by 

different  courts)  where  both  tribunals  derive  their  jurisdiction  and  authority  from 
the  United  States,  as  in  the  case  of  a  court-martial  and  civil  court  in  the  Philippine 
Islands.  (Grafton  v.  U.  S.,  206  U.  S.  333,  tried  May  27, 1907).  See  JEOPARDY,  FOR- 
MER, 24,  46. 


JEOPARDY,   FORMER.  303 

46.  Same — Where  the  same  act  constitutes  an  oflense  under  a  state  law,  as  well  as  an 
offense  under  a  law  of  the  United  States,  the  State  court  has  jurisdiction  to  punish 
the  offense  under  its  law,  as  has  also  the  Federal  court.  (Fox  v.  Ohio  (5 How.  433); 
.  U.  S.  v.  Marigold  (9  How.  569);  Moore  v.  Illinois  (14  How.  19);  Ex  Parte  Siebold 
(100  U.  S.  390);  Cross  V.  North  Carolina  (132  U.  S.  131).)  14  Op.  J.  A.  O.,  188,  Aug. 
14, 1909.  See  JEOPARDY,  FORMER,  24,  45;  STATE,  7. 

JOINDER,  TRIAL  IN. 

1.  Accused— Where  men  are  tried  in  joinder  they  should  be  referred  to  in  the  record  as 

"each  of  the  accused."    See  JOINDER,  TRIAL  IN,  14, 15. 

2.  Acquittal— Of  each  person  tried  in  joinder  should  be  separately  recorded.    See  JOINDER, 

TRIAL  IN,  15. 

3.  Challenges.    See  JOINDER,  TRIAL  IN,  18. 

4.  Collision.    See  JOINDER,  TRIAL  IN,  5. 

5.  Commanding  officer  and  offlcer-of-the-deck— Tried  in  joinder  for  collision  with 

a  merchant  schooner.    C.  M.  O.  44, 1883. 

6.  Convening  authority  should  indicate — When  the  convening  authority  does  not 

join  the  accused  in  the  charges  and  specification,  but  indicates  that  he  desires  them 
tried  separately  by  preferring  separate  charges  and  specifications,  with  separate  letters 
of  transmittal,  courts-martial  should  not  try  them  in  joinder.  C.  M.  O.  10,  1911. 
3-5;  42,  1914,  4. 

7.  Court  should  not  try  men  in  Joinder  without  authority— Two  men  were  charged 

with  "Desertion"  the  specifications  being  identical;  tried  in  joinder  by  court  with- 
out authority  of  convening  authority  (Secretary  of  the  Navy);  did  not  desire  counsel; 
made  no  objection  to  being  tried  in  joinder;  department  disapproved,  stating  that 
the  action  of  the  court  in  trying  the  men  in  joinder  was  "unlawful,"  that  such  trial 
was  "illegal"  etc.  C.  M.  O.  39, 1905,  2;  G.  C.  M.  Rec.  12835.  But  see  JOINDER,  TRIAL 
IN,  9. 

In  the  above  case  the  department  severely  criticized  the  court.  The  action  of  the 
court  was  certainly  irregular  and  constituted  a  usurpation  by  the  court  of  the  pre- 
rogative of  the  convening  authority.  It  should  be  distinctlv  impressed  upon  officers 
serving  as  members  of  courts-martial  that  the  question  whether  or  not  the  accused 
shall  be  tried  in  joinder  is  one  of  the  matters  which  is  to  be  determined  in  all  cases  by 
the  convening  authority,  and  that  for  such  officers  to  assume  that  they  have  the 
right  to  determine  such  a  question  for  themselves,  without  instructions  from  the 
convening  authority,  is  an  indication,  at  the  least,  of  ignorance  on  their  part  of  the 
duties  devolving  upon  them  and  concerning  which  an  efficient  officer  is  expected  to 
be  informed. 

8.  Same— Convening  authority  was  Secretary  of  the  Navy— Two  men  were  charged  sep- 

arately with  "Scandalous  conduct  tending  to  the  destruction  of  good  morals"  and 
"Drunkenness  on  duty;"  one  specification  under  each  charge;  everything  was  sepa- 
rate and  the  department  desired  them  tried  separately  but  the  court  tried  them  in 
joinder;  no  objection  was  made  by  the  accused  in  the  above  case  against  being  tried 
in  joinder;  accused  were  represented  by  civilian  counsel;  as  the  offenses  were  several 
in  character  the  department  disapproved  the  proceedings,  findings  and  acquittals. 
C.  M.  0. 10, 1911,  3-5;  G.  C.  M.  Rec.  23473.  See  al?o  JOINDER,  TRIAL  IN,  9. 

9.  Same — Separate  specifications  preferred — On  March  28,  1916,  the  convening  authority 

ordered  the  trial  by  summary  court-martial  of  a  fireman  first  class,  preferring  two 
specifications,  each  alleging  an  offense.  On  the  same  date,  the  same  convening  au- 
thority preferred  similar  specifications,  separately,  against  two  other  enlisted  men 
directing  their  trial  by  summary  court-martial  on  board  the  same  ship  and  before 
the  same  summary  court-martial.  The  cases  of  these  men  were  entirely  separate 
and  distinct,  having  separate  specifications  which  did  not  allege  that  the  offenses 
were  committed  in  collusion  or  in  concert.  The  court  tried  the  men  in  joinder  with- 
out instructions  so  to  do  by  the  convening  authority.  At  the  trial  each  of  the  accused 
was  represented  by  the  same  naval  officer  as  his  counsel.  Not  only  was  there  no 
objection  to  the  procedure  of  trying  these  men  in  joinder  made  by  co'unsel  or  any  of 
the  accused,  but  the  record  expressly  disclosed  the  statement  that  each  of  the  accused 
declared  "that  he  desired  to  be  tried  in  joinder  with  other  two  accused." 

The  Supreme  Court  of  the  United  States,  in  Logan  v.  United  States  (144  U.  S.  263, 
296),  held  that  where  objection  was  not  made  to  the  consolidation  of  indictments 
in  a  case  similar  to  this,  the  question  whether  such  consolidation  was  or  was  not  legal 
would  not  be  considered  in  review. 

50756°— 17 20 


304  JOINDER,   TRIAL   IN. 

Also  the  Attorney  General  has  stated  in  an  opinion  (4  Op.  Atty.  Gen.,  171): 

"It  is  a  vain  conceit,  that  because  the  proceedings  are  irregular,  and  fatally  irregu- 
lar (if  the  exception  be  taken  in  proper  time),  therefore  the  judgment  once  suffered  to  be 
entered  up  is  void.  Thus  there  are  many  things  *  *  *  in  the  conduct  of  a  trial, 
that  make  the  verdict  void;  yet,  if  advantage  be  not  taken  of  them  by  motion  in 
arrest  of  judgment,  no  writ  of  error  lies,  even  where  there  is  a  competent  court  of 
errors  (Rob.  Abr..  783;  4  Cro.  Eliz.,  616),  and  it  is  very  proper  it  should  be  so;  *  *  * 
and  the  repose  of  society,  and  the  putting  an  end  to  controversy  and  litigation,  are 
more  desirable  than  mere  accuracy  of  procedure,  or  even  the  justice  of  a  particular 
case— not  to  mention  that  acquiescence  implies  consent,  and  consent  cures  error." 

It  does  not  appear  that  the  accused  in  this  case  were  prejudiced  by  their  trial  in 
joinder,  but  on  the  contrary  thrtr  statement  that  they  "desired  to  be  tried  in  joinder 
with  other  two  accused"  would  indicate  that  they  regarded  such  procedure  advan- 
tageous to  their  interests.  Furthermore  the  court-martial  reached  separate  findings 
and  adjudged  separate  sentences  in  the  case  of  each  of  the  accused,  who  were  also 
separately  arraigned.  Held,  the  procedure  followed  was  not  such  as  to  invalidate 
the  proceedings.  (The  following  precedents  of  the  department  have  been  carefully 
considered:  C.  M.  O.  44,  1883;  39,  1884;  15,  1896;  32,  1904,  p.  2;  39,  1905,  p.  2;  78,  1905; 
37,  1909,  p.  7;  10, 1911,  pp.  3-5;  42,  1914,  p.  4;  Index-Digest,  1914,  p.  25;  G.  C.  M.  Eec. 
Nos.  11835;  20916;  23473;  23743.) 

In  a  case  similar  to  this  the  Secretary  of  the  Navy  approved  an  opinion  of  the  Judge 
Advocate  General  which  read  in  part  as  follows:  "However,  the  action  of  the  court 
while  not  illegal  under  the  circumstances  of  the  case,  was  certainly  irregular  and 
constituted  a  usurpation  by  the  court  of  the  prerogative  of  the  convening  authority. 
It  should  be  distinctly  impressed  upon  officers  serving  as  members  of  courts-martial 
that  the  question  whether  or  not  accused  shall  be  tried  in  joinder  is  one  of  the  matters 
which  is  to  be  determined  in  all  cases  by  the  convening  authority,  and  that  for  such 
officers  to  assume  that  they  have  the  right  to  determine  such  a  question  for  them- 
selves, without  instructions  from  the  convening  authority,  is  an  indication,  at  the 
least,  of  ignorance  on  their  part  of  the  duties  devolving  upon  them  and  concerning 
which  an  efficient  officer  is  expected  to  be  informed."  (File  26251-4794.  Sec.  Navy, 
June  8, 1911;  G.  C.  M.  Rec.  No.  23743). 

The  findings  and  sentences  in  this  case  were  accordingly  approved.  File  26287- 
3381,  J.  A.  G.,  April  27,  1916;  C.  M.  O.  13,  1916,  5-6. 

10.  Same — Convening  authority  was  department — Three  men  were  charged  separately 

with  "Knowingly  and  willfully  misappropriating  and  applying  to  his  own  use  and 
benefit,  property  of  the  United  States,  furnished  and  intended  for  the  naval  service 
thereof,1'  and  "Wrongfully  and  knowingly  selling  property  of  the  United  States, 
furnished  and  intended  for  the  naval  service  thereof";  court  of  its  own  initiative 
tried  these  three  men  in  joinder;  all  three  of  the  accused  were  represented  by  civilian 
counsel;  no  objection  to  being  tried  in  joinder;  department  did  not  disapprove  this 
case  because  the  "collusion  "  existed  here  to  make  it  a  proper  offense  to  try  in  joinder 
citing  22  Cyc.  373  and  Logan  v.  U.  S.  with  reference  to  "not  objecting."  G.  C.  M. 
Rec.  23743.  But  see  JOINDER,  TRIAL  m,  9. 

11.  Same — Convening  authority  was  commander  in  chief  of  the  Pacific  Squadron — Four 

men  were  charged  with  "Desertion"  and  "Violation  of  the  eighth  clause  of  the  four- 
teenth article  of  the  Articles  for  the  Government  of  the  Navy;"  one  specification 
under  each  charge  each  man  being  properly  referred  to  in  it ;  tried  in  joinder;  accused 
were  represented  by  an  officer;  no  objection  was  made  to  being  tried  in  joinder  on 
these  offenses;  convening  authority  (same  officer)  approved  without  comment; 
department  set  aside  the  proceedings,  findings  and  sentences  on  the  ground  that 
these  offenses  were  several.  C.  M.  O.  32,  1904,  2;  G.  C.  M.  Rec.  11835.  But  see 
JOINDER,  TRIAL  IN,  9. 

12.  Enlisted  men — Two  enlisted  men  tried  in  joinder  on  the  charges  of  "Theft"  and 

"Disobedience  of  the  lawful  orders  of  their  superior  officer."    C.  M.  O.  39,  1884. 

13.  Same — Four  enlisted  men  tried  in  joinder  on  the  charge  of  "Conduct  to  the  prejudice 

of  good  order  and  discipline."  The  court's  finding  was  that  the  four  men  were 
"jointly  and  severally  of  the  charge,  'Guilty.'"  One  sentence  was  used  but  it 
contained  the  names  of  all  of  the  men.  The  department  approved  without  com- 
ment as  to  the  trial  in  joinder.  C.  M.  O.  15,  18%.  See  also  C.  M.  O.  37,  1904,  7;  G. 
C.  M.  Rec.  20916;  JOINDER,  TRIAL  IN,  9. 

14.  Same — Two  enlisted  men  tried  in  joinder  on  the  charge  of  "Scandalous  conduct  tend- 

ing to  tho  destruction  of  good  morals."  The  department  criticised  the  procedure 
as  the  record  disclosed  the  fact  that  when  referred  to  the  two  men  accused  were 


JOINDER,    TRIAL    IX.  305 

referred  to  as  "the  accused"  instead  of  "each  of  the  accused";  also  because  each  of 
the  accused  was  not  arraigned  separately.  For  these  irregularities  and  others  of  a 
more  serious  nature  the  department  set  the  sentences  aside  and  directed  that  each 
of  the  accused  be  discharged  as  undesirable  as  an  independent  proceedings.  C.  M.  O. 
78, 1905, 1.  See  also  C.  M.  O.  30,  1910,  8. 

15.  Finding,  sentence  (or  acquittal) — Of  each  person  tried  in  joinder  should  be  sepa- 

rately recorded.  Reference  in  the  record  to  "the  accused"  is  in  error,  as  it  should 
be  recorded  as  "each  of  the  accused."  C.  M.  O.  78, 1905, 1;  30, 1910,  8. 

16.  Method — If  the  convening  authority  desires  to  try  men  in  joinder  the  proper  pro- 

cedure is  to  prefer  only  one  set  of  charges  and  specifications,  and  write  only  one  letter 
of  transmittal.  C.  M.  O.  37,  1909,  7;  42,  1914,  4. 

17.  Procedure — In  an  actual  trial  in  joinder  is  described  in  Forms  of  Procedure,  1910, 

pp.  24,  41.  (See also,  C.  M.  O.  37,  1909,  p.  7;  30,  1910,  p.  8;  10,  1911,  pp.  3^5;  G.  C.  M. 
Record  20916;  23743.)  C.  M.  O.  42,  1914,  4. 

18.  Record  of  proceedings — Should  show  that  if  all  or  any  of  the  accused  take  the  stand 

they  did  so  at  their  own  request;  that  they  were  severally  given  opportunity  to 
challenge  members;  that  they  severally  expressed  themselves  ready  for  trial  and  that 
they  were  severally  afforded  opportunity  to  cross-examine  all  witnesses  produced 
by  the  prosecution.  C.  M.  O.  37,  1909,  7.  Set  also  JOINDEK,  TRIAL  IN,  14. 

19.  When  trials  In  joinder  may  be  had— It  is  observed  that  the  accused  persons  were 

tried  in  joinder  upon  the  charges  of  "Desertion"  and  "Violation  of  the  eighth  clause 
of  the  fourteenth  article  of  the  Articles  for  the  Government  of  the  Navy." 

It  is  further  observed  that  the  specification  of  the  second  charge  was  defective 
in  that,  while  the  accused  were  charged  with  violating  the  eightn  clause  of  the  four- 
teenth article  of  the  Articles  for  the  Government  of  the  Navy,  the  allegation  con- 
tamed  in  the  specification  was  not  set  forth  in  the  terms  used  in  the  article.  The 
specification  should  have  alleged  that  each  of  the  accused  "wrongfully  and  knowingly" 
disposed  of  certain  arms,  etc.,  instead  of  which  it  was  alleged  simply  that  the  accused 
unlawfully  disposed  of  certain  arms,  etc.  The  accused  were  improperly  tried  in 
joinder,  it  not  oeing  alleged,  nor  was  any  evidence  adduced  at  the  trial"  to  prove, 
that  the  offenses  were  committed  together,  much  less  in  concert. 

Attention  is  invited  to  Army  Digest,  1901,  art.  715,  as  follows: 

Properly  to  warrant  the  joining  of  several  persons  in  the  same  charge  and  the 
bringing  them  to  trial  together  thereon,  the  offense  must  be  such  as  requires  for  its 
commission  a  combination  of  action  and  must  have  been  committed  by  the  accused 
in  concert  or  in  pursuance  of  a  common  intent.  The  mere  fact  of  their  committing 
the  same  offense  together  and  at  the  same  time,  although  material  as  going  to  show 
concert,  does  not  necessarily  establish  it.  Thus  the  fact  that  several  soldiers  have 
absented  themselves  together  without  leave,  will  not,  in  the  absence  of  evidence 
indicating  a  conspiracy  or  concert  of  action,  justifv  their  being  arraigned  together 
on  a  common  charge,  for  they  may  merely  have  been  availing  themselves  of  the 
same  convenient  opportunity  for  leaving  their  station.  Nor  is  desertion,  of  which 
the  gist  is  a  certain  personal  intent,  ordinarily  chargeable  as  a  joint  offense. 

But  where  two  or  more  soldiers  have  in  fact  deserted  together  as  the  result  of  a 
concerted  plan  they  may  properly  be  jointly  or  severally  charged  with  desertion, 
the  specification  in  either  case  describing  in  proper  terms  a  "desertion  in  the  execu- 
tion of  a  conspiracy." 

But  whenever  the  offense  is,  in  its  nature,  several  there  can  be  no  joinder. 

Where  the  offense  indicted  doth  not  wholly  arise  from  the  joint  act  of  all  the 
defendants,  but  from  such  act  joined  with  some  personal  and  {particular  defect  or 
omission  of  each  defendant,  without  which  it  would  be  no  offense,  *  *  *  the 
indictment  must  charge  them  severally  and  not  jointly. 

The  mere  fact  that  several  persons  happen  to  have  committed  the  same  offense 
at  the  same  time  does  not  authorize  their  being  joined  in  the  charge.  Thus  where 
two  or  more  soldiers  take  occasion  to  desert,  or  absent  themselves  without  leave, 
in  company,  but  not  in  pursuance  of  a  common  unlawful  design  and  concert,  the 
case  is  not  one  of  a  single  joint  offense,  but  of  several  separate  offenses  of  the  same 
character,  which  are  no  less  several  in  law  though  committed  at  the  same  moment. 

Prisoners  will  not  be  joined  in  the  same  charge  nor  tried  on  joint  charges,  unless 
for  concert  of  action  in  the  same  offense.  (Winthrop,  pp.  208-209.) 

No  previous  deliberate  concert  was  alleged  in  the  specifications,  nor  proved  by 
any  evidence  adduced  at  the  trial,  and  it  does  not  anywhere  appear  that  the  persons 


306  JOINDER,   TRIAL   IN. 

accused  in  this  case  acted  in  pursuance  of  a  «ommon,  unlawful  design  and  concert. 
They  were,  therefore,  improperly  tried  in  joinder. 

It  may  be  added  that  the  misjoinder  here  was  of  vital  effect,  for  evidence  of  an 
alleged  voluntary  statement  on  the  part  of  one  of  the  accused  in  reference  to  himself 
alone  was  heard  at  the  trial  of  each  and  all  the  accused. 

The  proceedings,  findings,  and  sentence  were  set  aside,  and  the  accused  released 
from  confinement  and  restored  to  duty.  C.  M.  O.  32,  1904,  2.  But  see  JOINDER, 
TRIAL  IN,  9. 

JUDGE. 

1.  Deck  court  officer  as.    C.  M.  O.  14,  1911,  7.    See  also  DECK  COURTS,  27. 

2.  Members  of  courts-martial— Capacity  as  judges.    See  COURT,  103;  MEMBERS  OF 

COURTS-MARTIAL,  25. 

JUDGE  ADVOCATE. 

1.  "Absence  from  station  without  leave"— Judge  advocate  tried  by  general  court- 

martial.    C.  M.  O.  104,  1896. 

2.  Accused — Relation  of  judge  advocate  to  accused  as  counsel.    See  JUDGE  ADVOCATE, 

28-44. 

3.  Acquittals— Should  be  in  handwriting  of  judge  advocate.    See  ACQUITTAL,  17. 

4.  Admissions  by  Judge  advocate— Of  contents  of  officer's  record.    See  REPORTS  ON 

FITNESS,  5. 

5.  Same — In  open  court  that  a  person  would  give  certain  testimony  if  he  were  summoned 

and  testified  before  court.    See  ADMISSIONS,  3. 

6.  Admonished  and  censured — A  letter  of  admonition  and  censure  was  placed  on  the 

military  record  of  an  officer  who  acted  as  judge  advocate  because  of  the  numerous 
occasions  upon  which  it  became  necessary  to  return  records  of  general  courts-martial 
because  of  clerical  errors  and  erroneous  statements.  File  26504-65,  Sec.  Navy,  Dec. 
2,1909. 

7.  Adviser  to  court.    See  JUDGE  ADVOCATE,  49-59. 

8.  "Alcoholism"— Judge  advocate  placed  on  sick  list  for.    See  ALCOHOLISM,  1. 

9.  Alterations— In  findings  and  sentence.    See  FINDINGS,  7;  SENTENCES,  10. 

10.  Arguments,  closing.    See  ARGUMENTS. 

11.  Same— Upon  admisslbility  of  evidence,  etc.    See  ARGUMENTS,  4. 

12.  Arraignment.    See  ARRAIGNMENT. 

13.  Carelessness — In  not  establishing  fact  that  a  certain  time  in  evidence  was  a.  m.  or 

p.  m.  (C.  M.  O.  28, 1910,  7).  Failing  to  introduce  a  confession.  (C.  M.  0. 26, 1910,  7). 
For  not  objecting  to  an  incompetent  witness  (wife  of  accused)  when  he  admitted  that 
he  knew  of  such  disability.  (C.  M.  O.  21,  1910,  13).  In  certifying  document  to  be 
a  true  copy  when  it  was  not  an  exact  copy.  (C.  M.  0. 17, 1910,  3;  23, 1910,  3).  Dere- 
lict in  his  duties.  (C.  M.  O.  37,  1909,  4).  Careless  in  writing  up  record.  (C.  M.  O. 
26, 1910,  3;  16,  1912,  4).  Failing  to  introduce  evidence  of  previous  convictions  which 
was  in  his  possession.  (See  PREVIOUS  CONVICTIONS,  17.)  Failing  to  introduce  evi- 
dence to  identify  accused.  (See  FRAUDULENT  ENLISTMENT,  51.)  Gross  careless- 
ness. (C.  M.  O.  78,  1905,  1.) 

14.  Censured— By  department  for  being  careless  in  certifying  documents.    C.  M.  O.  23, 

1910,3.    See  also  C.  M.  O.  12,  1912,  8. 

A  judge  advocate  was  censured  for  not  advising  the  court  as  to  the  law.  See  JUDGE 
ADVOCATE,  69. 

15.  Certificate  of  claim— For  civilian  witness  fee.    See  ADDRESS,  3. 

16.  Challenges.    See  CHALLENGES,  5,  6. 

17.  Chaplain — May  act  as  judge  advocate.    See  CHAPLAINS,  4. 

18.  Charges  and  specifications— Correction  of  errors  in.    See  CHARGES  AND  SPECIFI- 

CATIONS, 33. 

19.  Clerical  errors — In  charges  and  specifications.    See  CHARGES  AND  SPECIFICATIONS, 

33. 

20.  "Closed  court"— Judge  advocate  should  not  be  present.    See  JUDGE  ADVOCATE,  105. 

21.  Same — The  advice  to  the  court  by  the  judge  advocate  on  all  matters  of  form  and  law 

must  be  in  open  court.    G.  C.  M.  Rec.  24633. 

22.  Closing  argument— Judge  advocate  should  not  make  his  closing  argument  a  plea 

for  the  accused  when  the  accused  is  represented  by  counsel  of  his  own  selection.  See 
ARGUMENTS,  2. 

23.  Same — Judge  advocate  entitled  to  final  argument  in  a  general  court-martial  trial, 

even  where  court  in  its  discretion  permits  prosecution  or  defense  more  than  one  argu- 
ment. See  ARGUMENTS,  1. 


JUDGE  ADVOCATE.  307 

24.  Comment— No  comment  by  judge  advocate  if  court  privileges  the  witness  not  to 

answer  criminating  questions.    See  SELF-!NCRIMINATION,  4. 

25.  Same— No  comment  by  judge  advocate  on  failure  of  accused  to  take  stand  as  witness 

in  own  behalf.    See  WITNESSES,  11. 

26.  Contempt  of  court.    See  CONTEMPT  OF  COURT. 

27.  Convening  authority — Judge  advocate  responsible  for  proper  performance  of  his 

duties  to  convening  authority.    See  JUDGE  ADVOCATE,  60. 

28.  Counsel,  for  accused — Though  the  judge  advocate  may  act  in  an  advisory  capacity 

as  counsel  to  the  accused,  rendering  him  both  in  and  out  of  court  such  assistance  as 
may  be  compatible  with  his  primary  duty  of  conducting  the  prosecution,  he  can  not 
act  in  a  personal  capacity  of  counsel,  since  such  character  would  be  incompatible 
with  that  of  public  prosecutor,  and  it  is  therefore  improper  to  have  him  specifically 
designated  as  such.  C.  M.  O.  37,  1909,  4;  42,  1909,  8;  49,  1910,  13.  See  also  G.  C.  M. 
Rec.  22141.  . 

29.  Same — Where  the  accused  is  without  counsel  the  judge  advocate  will  properly  render 

him,  both  in  and  out  of  court,  such  assistance  as  may  be  compatible  with  his  pri- 
mary duty  of  efficiently  conducting  the  prosecution.  C.  M.  0. 6,  1909,  3:  47,  1910,  4; 
26,  1910,7. 

30.  Same— The  judge  advocate  will  properly  advise  the  accused  of  his  right  to  be  fur- 

nished with  counsel.    C.  M.  O.  6, 1909.  3. 

31.  Same— The  judge  advocate  will  properly  advise  the  accused  of  his  right  to  take  the 

stand  as  a  witness.    C.  M.  O.  6,  1909,  3. 

32.  Same — The  judge  advocate  will  properly  assist  the  accused,  when  he  is  without 

counsel,  in  bringing  out  such  circumstances  of  extenuation  as  may  exist  in  the  case. 
Also  in  offering  pleas,  general  or  special.  C.  M.  O.  6,  1909,  3. 

33.  Same— Should  not  make  inaccurate  statements  while  acting  in  the  capacity  of  counsel 

to  the  accused. 

34.  Same — The  judge  advocate  will  especially  guard  against  even  suggesting  that  the 

accused  plead  "  Guilty,"  as  inadvisable  and  objectionable.  C.  M.  O.  6, 1909,  3.  See 
also  ADVISING,  3;  JUDGE  ADVOCATE,  86. 

35.  Same— Judges  advocates  of  general  courts-martial  shpuld,  where  the  accused  is  not 

represented  by  counsel,  aid  him  in  properly  presenting  his  case  to  the  court  and  in 
guarding  his  interests  they_  should  inform  the  accused  that  any  statement  that  he 
may  make  can  not  be  considered  as  evidence,  but  if  he  takes  the  stand  and  testifies 
in  his  own  behalf  the  facts  then  represented  could  be  considered  as  evidence.  Of 
course  the  advice  given  by  the  judge  advocate  must  necessarily  be  determined  within 
his  j  udgment  as  to  the  best  procedure  to  follow.  File  26251-9722. 

36.  Same — Where  the  accused  is  without  counsel  the  judge  advocate  should  show  par- 

ticular care  not  to  find  himself  in  the  position  of  asking  leading  questions,  improperly. 
C.  M.  O.  26, 1910,  7. 

37.  Same— "In  the  remarks  of  the  judge  advocate  in  his  capacity  as  counsel  for  the 

accused  it  is  stated  that  the  accused  has  only  three  minor  offenses  under  both  original 
and  fraudulent  enlistments.  This  appears  to  be  inaccurate,  as  an  examination  of 
the  attached  copies  of  the  enlistment  records  shows  eight  offenses."  The  judge 
advocate  should  be  careful  to  be  accurate  in  his  statements. 

38.  Same — Where  the  accused  is  without  counsel  the  judge  advocate  should  show  par- 

ticular care  to  object  to  the  admission  of  improper  testimony.    C.  M.  O.  26,  1910,  7. 

39.  Same— Judge  advocate  should  not  make  his  closing  argument  a  plea  in  behalf  of  the 

accused  when  the  accused  is  represented  by  counsel  of  his  own  selection.  See  ARGU- 
MENTS, 2. 

40.  Same— When  the  accused  is  represented  by  civilian  counsel,  this  fact  relieves  the 

judge  advocate,  in  a  measure,  of  his  duties  as  to  advising  the  accused.  C.  M.  O. 
47,  1910,  4. 

41.  Same — Should  not  be  directed  by  the  president  of  the  court  to  act  in  a  personal 

capacity  as  counsel  for  the  accused.    C.  M.  O.  49, 1910, 13. 

42.  Same— Judge  advocate  should  not  be  specially  designated  as  such.    C.  M.  O.  37,  1909, 

4;  42,  1909,  8;  49,  1910,  13. 

43.  Same — Judge  advocate  may  make  a  closing  statement  for  accused.    C.  M.  O.  34, 

1913,  7. 

44.  Same — Remarks  of  judge  advocate  in  making  a  closing  statement  for  accused  is  not 

evidence  and  court  should  not  give  weight  to  them  as  such.    C.  M.  O.  34,  1913,  8. 

45.  Counsel  for  Judge  advocate — It  was  noted  that  the  counsel  for  the  accused  entered 

an  objection  to  counsel  for  the  judge  advocate  "actively  taking  charge  of  the  case, 
taking  charge  of  the  cross^xamination,  addressing  the  court,"  and  that  "under  the 


308  JUDGE   ADVOCATE. 

customs  of  the  service,  the  judge  advocate  should  have  charge  of  the  case,  and  that 
counsel  for  judge  advocate  should  restrict  himself  to  advising  the  judge  advocate 
in  any  matter  in  or  out  of  court,  as  he  may  desire."  The  court  ruled  that  "hereafter 
the  judge  advocate  would  address  the  court  and  propose  the  questions  directly,  and 
not  through  his  assistant."  The  matter  being  brought  to  the  attention  of  the  depart- 
ment, telegraphic  orders  were  sent  to  the  counsel  for  the  judge  advocate,  signed  by 
the  convening  authority,  detailing  him  as  counsel  for  the  judge  advocate  and  direct- 
ing him  to  act  in  accordance  with  Navy  Regulations,  1913,  R-793,  which  reads  in 
part  as  follows:  ' '  If  counsel  be  detailed  by  the  convening  authority  to  assist  the  j  udge 
advocate,  the  court  shall  give  him  equal  facilities  with  the  counsel  for  the  accused  in 
the  performance  of  his  duties."  Upon  receipt  of  these  orders,  the  "president  stated 
that  the  court  would  be  guided  by  that  regulation,"  and  the  record  discloses  that 
counsel  for  the  judge  advocate  was  granted  all  the  privileges  required  by  the  above 
regulation.  (See  File  26504-140,  J.  A.  G.,  May  6,  1912.)  C.  M.  O.  41,  1915,  10-11;  File 
26251-11180: 10,  Sec.  Navy,  Nov.  2,  1915.  See  alto  G.  C.  M.  Rec.  31509,  p.  3. 

46.  Same — Solicitor  assigned  as  associate  and  assistant  to  a  judge  advocate  of  a  court  of 

inquiry.    See  COUNSEL,  49. 

47.  Same — Law  clerk  assigned  as.    See  COUNSEL,  39. 

48.  Same — Shall  be  appointed  by  convening  authority.    See  JUDGE  ADVOCATE,  45. 

49.  Court,  adviser  to— While  it  is  the  duty  of  the  judge  advocate  to  advise  the  court  in 

all  matters  of  law  and  form  he  should  be  exceedingly  careful  to  give  proper  advice 
and  to  refrain  from  giving  advice  which  is  directly  at  variance  with  the  instructions 
issued  by  the  department  in  court-martial  orders  and  Forms  of  Procedure.  C.  M.  O. 
29, 1914,  7.  See  also  GUILTY  IN  A  LESS  DEGEEE  THAN  CHARGED,  9, 18;  C.  M.  O.  20, 
1899. 

50.  Same — Where  the  offense  was  of  a  grave  character  and  one  committed  in  a  particularly 

scandalous  manner,  the  department  considered  that  the  judge  advocate  should 
have  advised  the  court  of  the  nature  of  the  offense,  when  the  accused  had  pleaded 
"guilty"  in  order  that  evidence  could  have  been  taken  for  the  purpose  of  presenting 
the  entire  circumstances  of  the  offense  to  the  court.  C.  M.  O.  1,  1914,  5-6.  See  also 
EVIDENCE,  42. 

51.  Same — It  is  an  improper  action  for  a  court  to  refuse  a  certain  question  to  be  asked 

when  the  judge  advocate  advises  the  court  that  the  question  was  contained  in  a  form 
sent  him  from  the  office  of  the  Judge  Advocate  General.  C.  M.  O.  42,  1909,  7. 

52.  Same^Corrects  statement  of  president  of  general  court-martial.    C.  M.  0. 14, 1910, 11. 

53.  Same — The  court  errs  when  it  does  not  accept  the  advice  of  the  judge  advocate,  that 

a  previous  conviction  which  occurred  in  an  enlistment  from  which  the  accused  was 
dishonorably  discharged  by  court-martial  is  admissible.  C.  M.  O.  28,  1913,  4. 

54.  Same— On  every  occasion  when  the  court  demands  his  opinion,  the  judge  advocate 

is  bound  to  give  it  freely  and  fully,  and,  even  when  it  is  not  requested  to  caution 
the  court  against  any  deviation  from  essential  form  in  its  proceedings,  or  against 
any  act  or  ruling  in  violation  of  law  or  material  justice.  C.  M.  O.  49, 1910,  7;  17, 1910, 
10;  28, 1913, 4.  See  also  JUDGE  ADVOCATE,  58,  59,  69. 

55.  Same— Where  the  statement  of  the  accused  is  inconsistent  with  his  plea  of  guilty  the 

judge  advocate  will  very  properly  advise  the  court  as  to  the  correct  procedure  and 
the  court  errs  in  not  accepting  the  advice  if  the  statement  and  plea  are  manifestly 
inconsistent.  C.  M.  O.  49, 1910,  7. 

56.  Same — The  advice  to  the  court  by  the  judge  advocate  on  all  matters  of  form  and  law 

must  be  in  open  court.    See  JUDGE  ADVOCATE.  21. 

57.  Same — Where  upon  the  completion  of  a  trial  and  before  the  court  was  cleared  for  delib- 

eration, the  judge  advocate  requested  that  upon  the  court  arriving  at  its  findings, 
and  prior  to  proceeding  to  deliberate  upon  the  sentence,  he_  be  called  before  it  to 
record  the  findings,  after  which  the  court  clear  for  deliberation  upon  the  sentence, 
the  court  is  in  error  if  it  does  not  follow  this  procedure  which  is  prescribed  by  the 
Forms  of  Procedure,  1910,  and  Navy  Regulations.  C.  M.  0. 17, 1910, 10. 

58.  Same— It  is  the  duty  of  the  judge  advocate  to  advise  the  court  on  all  matters  of  law 

and  form,  and  should  his  advice  be  disregarded  the  judge  advocate  shall  be  allowed 
to  enter  his  opinion  on  the  record.  Where  the  court,  In  subsequent  cases,  follows 
the  procedure  to  which  the  judge  advocate  objected  in  a  prior  case,  it  is  the  duty  of 
the  judge  advocate  to,  in  each  case,  advise  the  court.  The  ruling  of  the  court  in  the 
prior  case  does  not  relieve  the  judge  advocate  from  his  duty  to  again  raise  the  point 
in  each  subsequent  case,  as  each  record  must  be  complete  in  itself,  and  where  a  court 
ruled  that  its  first  ruling  applied  to  all  subsequent  cases,  the  department  held  that 
the  court  was  in  error.  C.  M.  0. 17, 1910, 10-11.  See  also  JUDGE  A  DVOCATE,  54, 59, 69. 


JUDGE    ADVOCATE.  309 

59.  Same — "Relative  to  the  duties  of  the  judge  advocate  of  a  general  court-martial  the 

following  provisions  appear  in  the  Navy  Regulations,  1913: 

"R-749  (2)  'On  every  occasion  when  the  court  demands  his  opinion,  he  is  bound 
to  give  it  freely  and  fully,  and,  even  when  it  is  not  requested,  to  caution  the  court 
against  any  deviation  from  essential  form  in  its  proceedings,  or  against  any  act  or 
ruling  in  violation  of  law  or  material  justice. '  [See  CM.  O.  25, 1910.J 

"R-752  (1)  'The  judge  advocate  is  particularly  to  object  to  admission  of  improper 
evidence,  and  shall  point  out  to  the  court  the  irrelevancy  of  any  testimony  that  may 
be  adduced  which  does  not  bear  upon  the  matter  under  investigation. 

"  '(2)  Should  the  advice  of  the  judge  advocate  be  disregarded  by  the  court,  he 
shall  be  allowed  to  enter  his  opinion  upon  the  record.  Under  such  circumstances  it 
Is  also  proper  for  the  court  to  record  the  reason  for  its  decision.  The  minutes  of 
opinion  and  decision  are  made  for  the  information  of  the  revising  authority,  who 
should  have  the  error  or  wrong,  on  whichever  side  it  may  be  found,  brought  fairly 
under  his  consideration;  but  neither  the  judge  advocate,  the  accused,  nor  any  mem- 
ber of  the  court  has  any  right  to  enter  an  exception  or  protest  on  the  record.' 

"R-741  (3)  'The  judge  advocate  is,  in  his  military  character  as  an  officer,  respon- 
sible for  the  proper  discharge  of  his  duty  to  the  convening  authority.' " 

In  view  of  these  regulations,  regardless  of  whether  the  judge  advocate  is  correct 
in  his  opinion  or  not,  the  court  errs  in  administering  a  rebuke  and  is  wholly 
without  power  to  do  so.  C.  M.  O.  49,  1915,  10,  11.  See  also  G.  C.  M.  Rec.  32388; 
JUDGE  ADVOCATE,  75,  113. 

"In  the  theory  of  military  courts  the  judge  advocate  of  the  court  is  the  legal  adviser 
and  he  is  in  theory,  and  in  manv  instances  he  is  in  fact,  a  lawyer,  a  member  of  the 
bar,  and  an  officer  of  experience  in  military  jurisprudence.  For  example,  the  United 
States  Army,  other  armies,  and  some  navies  in  the  world  are  provided  with  a  permanent 
corps  of  judges  advocate,  all  of  whom  are  lawyers  of  experience,  who  *  *  *  act 
as  judges  advocate  in  all  important  trials."  But  "in  the  Navy,  the  courts  are  fre- 
quently thrown  upon  their  own  resources  and  in  fact  in  the  majority  of  cases  the 
senior  members  of  the  courts  are  more  experienced  and  possess  a  more  accurate 
knowledge  of  the  law  than  does  the  judge  advocate  himself.  For  these  reasons  it  has 
been  the  practice  of  the  department,  while  deferring  to  the  findings  of  the  court  on 
questions  of  fact,  to  unhesitatingly  on  receipt  of  the  record  of  proceedings  give  instruc- 
tions to  the  court  concerning  matters  of  law ;  which  should  *  *  *  have  been  given 
by  the  judge  advocate  at  the  time  of  the  trial."  ( For  example,  see  JUDGE  ADVOCATE. 
69.)  File  20251-12169,  Sec.  Navy,  Oct.  30,  1916,  p.  2. 

60.  Court  should  not  censure— The  judge  advocate  is,  in  his  military  character  as  an 

officer,  responsible  for  the  proper  performance  of  his  duty  to  the  convening  authority. 
Therefore,  a  court  errs  in  rebuking  him,  rather  than  reporting  him  to  the  convening 
authority.  C.  M.  O.  49. 1915, 11.  See  also  C.  M.  0. 17, 1910, 11. 

61.  Court  not  to  usurp— The  functions  of  judge  advocate.    See  C.  M.  O.  72,  1895,  2;  81, 

1897,  2. 

62.  Court,  functions  of— Not  to  be  usurped  by  judge  advocate.    See  JUDGE  ADVO- 

CATE, 123, 124. 

03.  Court  of  Inquiry — Duties  of  judge  advocate.    See  COURTS  OF  INQUIRY,  30. 
May  administer  oaths,  etc.    C.  M.  O.  5, 1916,  7. 

64.  Same-^-Solicitor  assigned  as  associate  and  assistant  to  a  judge  advocate  of  a  court  of 

inquiry.    See  COUNSEL,  49. 

65.  Court-martial  orders— Should  carefully  read  and   study.    See  COURT-MARTIAL 

ORDERS,  15. 

66.  Same— Name  of  judge  advocate  printed  in.    C.  M.  O.  38, 1915,  3. 

67.  Criticized  by  department— In  that  he  neglected  his  duty  as  prosecutor  and.  failed  to 

present  proper  evidence,  cross  examine  witnesses,  and  for  making  his  closing  argu- 
ment a  plea  for  the  accused  when  the  accused  was  represented  by  counsel  of  his  own 
selection.  C.  M.  0. 1, 1914,  8.  See  also  ARGUMENTS,  2. 

68.  Same— Criticized  for  failing  to  introduce  evidence  in  his  possession  (see  PREVIOUS 

CONVICTIONS,  17);  for  not  producing  better  evidence  which  was  available  (C.  M.  O. 
37,  1909,  5-6);  for  neglecting  his  duty  in  that  he  failed  to  present  proper  evidence, 


prev 

(see  PREVIOUS  CONVICTIONS,  16);  for  failing  to  introduce  proper  and  sufficient  evidence 
(C.  M.  O.  10,  1912,  8);  for  stating,  after  the  counsel  for  accused  admitted  absence 
as  charged,  "In  view  of  the  statement  of  the  counsel  for  accused  I  have  no  evidence 
to  put  before  the  court"  (C.  M.  O.  30, 1912,  5);  for  failing  to  make  a  closing  argument 


310  JUDGE    ADVOCATE. 

to  advise  the  court  as  to  the  law  -when  counsel  for  accused  had  given  an  erroneous 
statement  of  it.  (C.  M.  O.  25, 1910.  3.) 

While  it  is  not  to  be  expected  that  officers  serving  as  judge  advocates  of  courts- 
martial  shall  exhibit  a  thorough  knowledge  of  complicated  or  technical  rules  of  evi- 
dence, they  are  expected  to  distinguish  between  evidence  which  is  relevant  and 
that  which  has  no  connection  with  the  points  at  issue  and  to  make  timely  objection 
to  the  introduction  of  the  latter  class.  C.  M.  O.  5, 1913, 11. 

69.  Same— Counsel  for  the  accused  (an  officer  who  was  charged  with  embezzlement)'  de- 

livered an  argument  in  defense  of  the  accused,  wherein  he  placed  an  erroneous  inter- 
pretation upon  the  law  governing  the  case,  and  the  judge  advocate  not  only  failed 
to  advise  the  court  properly  in  regard  thereto,  but  submitted  the  case  to  the  court 
without  any  remarks.  The  judge  advocate  was  furnished  with  a  copy  of  Court- 
Martial  Order  No.  4, 1913,  containing  the  necessary  information  regarding  the  offense 
with  which  the  accused  was  charged.  The  judge  advocate  was  under  a  duty  to  correct 
the  erroneous  statements  of  the  counsel  and  also  to  place  before  the  court,  in  an  official 
manner  through  remarks,  the  correct  law  which  should  be  applied  to  the  case.  Owing 
to  the  neglect  of  the  judge  advocate  in  failing  to  advise  the  court  on  the  points  of  law 
Involved,  as  shown  by  the  record,  the  court  arrived  at  an  improper  finding.  The  de- 
partment thereupon  returned  the  case,  furnishing  the  court  with  the  information 
which  the  judge  advocate  failed  and  neglected  to  supply,  and  the  court  in  revision 
found  the  accused  guilty  of  the  offense  as  charged.  G.  C.  M.  Rec.  32388.  See  also 
C.  M.  O.  25.  1916,  3. 

70.  Degree  ol  criminality — Judge  advocate  in  certain  cases  should  introduce  evidence  to 

indicate  the  degree  of  criminality  involved  where  specification  does  not  show  par- 
ticulars of  offense,  after  plea  of  guilty.  See  DEGREE  OF  CRIMINALITY  INVOLVED,  1. 

71.  Deposition— Judge  advocate  to  procure — Necessity  of  approval  by  court.    See  DEP- 

OSITIONS, 3. 

72.  Documents— Should  not  read  document  in  his  closing  remarks  which  has  not  been 

introduced  in  evidence.    See  ARGUMENTS,  3. 

73.  "  Drunkenness  "—Judge  advocate  tried  by  general  court-martial.    C.  M.  O.  104, 

1896.    See  also  ALCOHOLISM,  1;  DRUNKENNESS,  55. 

74.  "  Drunkenness  on  duty  " — Judge  advocate  tried  by  general  court-martial.    C.  M.  O. 

57,  1880;  2,  1913. 

75.  Duty  of — The  judge  advocate  is,  in  his  military  character  as  an  officer,  responsible  for 

the  proper  discharge  of  his  duty  to  the  convening  authority.  See  JUDGE  ADVOCATE, 
59,  113. 

See  File  28025-403:3,  Sec.  Navy,  Jan.  26,  1916,  for  a  decision  upon  the  question  as 
to  the  liability  of  a  Marine  judge  advocate  for  duty  as  officer  of  the  day. 

76.  Enlistment  record — Procedure  in  introducing  in  evidence.    See  EVIDENCE,  DOCU- 

MENTARY, 36,  37,  45;  SERVICE  RECORDS,  22. 

77.  Exceptions— Judge  advocate  may  not  enter  on  record  of  proceedings.    See  EXCEP- 

TIONS, 2;  JUDGE  ADVOCATE,  59. 

78.  Evidence — The  judge  advocate  in  discharging  his  duty  should  present  the  best  evi- 

dence he  can  and  it  then  rests  with  the  court  to  determine  whether  that  evidence 
warrants  a  finding  of  guilty.  (File  26251-10104: 3.)  The  judge  advocate  in  his  duty 
as  prosecutor  must  obtain  all  evidence  available  and  present  such  evidence,  if  it  is 
possible,  which  will  warrant  a  court  in  legally  coming  to  a  finding  of  guilty.  File 
26251-10164:  3. 

79.  Findings — Judge  advocate  shall  be  called  before  the  court  to  record  the  finding  before 

the  court  proceeds  to  deliberate  upon  the  sentence,  for  otherwise  the  judge  advocate 
is  prevented,  if  occasion  arises,  from  advising  the  court  upon  any  possible  irregu- 
larity in  the  finding  before  the  court  proceeds  to  sentence  the  accused.  C.  M.  0. 17, 
1910,  10;  23,  1910,  7;  26, 1910,  8;  25, 1914,  6;  6,  1916. 

80.  Same — Acquittals  shall  be  recorded  in  handwriting  of  judge  advocate.    See  ACQUIT- 

TAL, 17. 

81.  Same— The  judge  advocate  shall  enter  the  findings  of  the  court  on  the  record  of  pro- 

ceedings in  his  own  handwriting.  He  shall  not  typewrite  them.  C.  M.  0. 155,  1897, 
2;  24, 1909,  3;  37,  1909,  4;  42,  1909,  6;  29,  1914,  5;  42,  1914,  4;  6,  1916. 

82.  Same — Alterations  in.    See  FINDINGS,  7. 

83.  General  court-martial— Judge  advocate  tried  for  "Absence  from  station  and  duty 

without  leave,"  "Drunkenness,"  and  "Scandalous  conduct  tending  to  the  destruc- 
tion of  good  morals."  C.  M.  0. 104, 1896.  See  also  ALCOHOLISM,  1. 

84.  Same — Judge  advocate  tried  for  "Drunkenness  on  duty."    C.  M.  O.  2,  1913. 

85.  Same— Judge  advocate  tried  for  "Scandalous  conduct  tending  to  the  destruction  of 

good  morals."    C.  M.  0. 57, 1880;  104, 1896.    See  also  ALCOHOLISM,  1. 


JUDGE   ADVOCATE.  311 

86.  "Guilty"— Should  not  advise  accused  to  plead  "Guilty."    C.  M.  O.  6,  1909,  3.    See 

also  ADVISING,  3;  JUDGE  ADVOCATE,  34. 

87.  Interfering  with  cross-examination — Judge  advocate  should  not  place  himself  in 

the  position  of  "interfering"  with  the  cross-examination.  Q.  C.  M.  Rec.  30485,  pp. 
361-362. 

88.  Interlineations — In  findings  and  sentences.    See  FINDINGS,  7.  54;  SENTENCES,  9,  52. 

89.  Member — Acting  as  judge  advocate.    See  JUDGE  ADVOCATE,  136. 

90.  Minister  of  Justice.    See  JUDGE  ADVOCATE,  108. 

91.  Name— Published  in  Court-Martial  Order.    C.  M.  O.  38, 1915,  3. 

92.  Oath — A  judge  advocate  appointed  without  change  of  court  must  be  sworn.    C.  M.  O. 

49, 1910, 11-12. 

93.  Same— Administers  oath  to  members.    See  OATHS,  20. 

94.  Objected— Judge  advocate  objected  to  members  of  court  interfering  with  him.    C.  M. 

O.  72, 1895,  2. 

95.  Objections — Duty  of  judge  advocate  to  object  to  a  witness  (accused)  refusing  to 

answer  questions  without  giving  any  reasons.    C.  M.  O.  17,  1910,  1.3.    See  also  last 
paragraph  of  JUDGE  ADVOCATE,  68,  holding  that  judge  advocates  should  make  timely 
objections  to  irrelevant  evidence. 
The  judge  advocate  may  not  be  challenged.    See  CHALLENGES,  5. 

96.  Officer  of  the  day— Liability  of  a  Marine  judge  advocate  for  duty  as  officer  of  the  day. 

File  28025-403:3,  Sec.  Navy,  Jan.  26, 1916. 

97.  Opinion — Judge  advocate  may  enter  on  record,  if  court  disregards  his  advice.    C.  M. 

0. 17, 1910, 11;  28, 1913, 4;  49. 1915, 11.    See  also  EXCEPTIONS,  2;  JUDGE  ADVOCATE.  59. 

98.  Orders— Where  a  judge  advocate  was  temporarily  appointed  such  during  the  tem- 

porary absence  of  the  permanent  judge  advocate,  the  department  held  that  upon 
return  of  the  latter,  he  should  resume  nis  duties  and  that  no  specific  orders  therefor 
are  necessary,  the  other  judge  advocate  having  been  appointed  as  such  merely  during 
his  absence.  C.  M.  O.  49, 1910, 11. 

99.  Same — If  the  name  of  the  judge  advocate  is  on  precept  no  orders  from  Marine  Corps 

or  Bureau  of  Navigation  are  essential  to  entitle  the  officer  to  act  as  judge  advocate. 
C.  M.  O.  28, 1910,  5.  Seealso  C.  M.  O.  49,  1910,  11;  JUDGE  ADVOCATE,  101. 

100.  Same — Judge  advocate  shall  not  act  without  proper  orders  from  the  convening  au- 

thority.   C.  M.  O.  26,  1910,  8. 

101.  Same— Precept  is  sufficient  authority  for  judge  advocate  to  act  as  such.    C.  M.  O. 

38,  1895,  2;  53, 1895,  2.    Seealso  JUDGE  ADVOCATE,  99. 

102.  Same — Judge  advocate  appointed  without  change  of  court — Procedure.    File  26251— 

12159. 

103.  Overruled  by  court — Judge  advocate  properly  objected  to  letter  but  court  overruled 

him.    C.  M.  O.  30, 1912,  4. 

104.  Precept— Sufficient  authority  for  judge  advocate  to  act  as  such.    C.  M.  O.  38,  1895,  2; 

53, 1895,  2;  104, 1896,  3-4.    See  also  JUDGE  ADVOCATE,  99,  101. 

105.  Presence — During  "closed  court"  improper — In  case  of  an  officer  tried  by  general 

court-martial  it  was  contended  in  benalf  of  the  accused  that  the  findings  and  sen- 
tence be  set  aside  on  the  ground  that  "his  trial  was  not  a  public  trial  as  required 
by  law."  The  facts  of  the  case  as  claimed  by  the  accused  were  as  follows:  "At 
3.22  p.  m.,  December  31,  1914,  the  president  of  the  court  announced  that  the 
court  would  adjourn.  At  this  point  a  member  requested  that  the  court  be  cleared 
but  that  the  judge  advocate  remain  that  ho  (the  member)  desired  to  address  the  court 
informally  in  the  presence  of  the  judge  advocate." 

Nothing  concerning  the  alleged  incident  was  contained  in  the  record  of  proceedings 
and  the  contention  of  the  accused  did  not  state  that  the  request  of  the  member  was 
granted  and  that  the  judge  advocate  in  fact  was  present  while  the  court  was  cleared. 

Assuming,  however,  that  the  request  of  the  member  was  granted  and  that  the  record 
was  incomplete  in  that  it  did  not  record  the  incident,  the  defense  had  the  opportunity 
to  have  the  record  corrected  when  the  proceedings  of  December  31,  1914.  were  "read 
and  approved."  The  accused,  who  was  represented  by  able  counsel  at  his  trial,  not 
having  objected  to  the  alleged  incompleteness  of  the  record  at  the  proper  time,  is  now 
estopped  to  urge  that  the  record  is  incorrect.  The  department  therefore  declined  to 
go  behind  the  record  in  order  to  ascertain  what  were  the  facts  of  any  alleged  incidents 
which  it  does  not  disclose. 

Even  had  the  record  shown  the  above  occurrence  this  would  not  have  necessarily 
invalidated  the  proceedings,  as  there  is  no  statute  in  the  Navy,  as  there  is  in  the  Army, 
providing  that  the  judge  advocate  shall  withdraw  when  a  court-martial  shall  sit  in 
closed  session;  and  the  provision  of  the  Navy  Regulations  to  that  effect  is  held  by 


31 2  JUDGE    ADVOCATE. 

the  department's  precedents  to  be  directory  only  and  not  mandatory.  Accordingly, 
a  disregard  of  said  regulation,  while  a  grave  irregularity,  would  not  necessarily  render 
the  proceedings  invalid.  File  26251-9996:2,  Sec.  Navy,  Jan.  15,  1915;  C.  M.  O.  6, 
1915,  6. 

106.  Same — Argument  by  judge  advocate  during  proceedings  in  revision  while  accused 

was  absent.    Department  disapproved  but  on  other  grounds.    C.  M.  O.  61,  1894,  3. 

107.  Procedure  Irregular  and  improper— For  judge  advocate  to  introduce  enlistment 

record  and  letter  while  witness  is  on  stand  to  impeach  him.  C.  M.'  O.  47,  1910,  5. 
See  also  IMPEACHMENT,  9. 

108.  Prosecutor — "The  judge  advocate  is  to  regard  himself  not  only  as  a  prosecutor  en- 

deavoring to  secure  a  verdict  of  guilty,  but  as  a  minister  of  justice  endeavoring  to 
place  the  whole  transaction,  with  which  the  accused  is  charged,  in  its  true  light  before 
the  court  and  the  reviewing  authority,  in  order  that  justice  may  be  done.  It  is  in 
omitting  to  bring  out  in  evidence  existing  matters  of  defense  or  extenuation  that 
judge  advocates  are  most  liable  to  fail  in  furthering  complete  justice."  C.  M.  O.  6, 
1909,3. 

109.  Protest — Improper  for  judge  advocate  to  enter  on  record  of  proceedings.    See  EXCEP- 

TIONS 2. 

110.  Record  of  proceedings — Judge  advocate  is  responsible  for  correctness  of  record. 

C.  M.  O.  27,  1913,  12;  17,  1915,  2:  10,  1916. 

111.  Relief — In  a  general  court-martial  case  returned  to  the  court  for  revision,  the  record 

of  proceedings  showed  that  the  judge  advocate  acted  during  the  revision  without 
reading  the  order  appointing  him  haying  been  read  and  he  having  been  duly  sworn. 
When  the  court  reconvened  for  revision  of  the  case,  the  orders  relieving  the  old  and 
appointing  the  new  judge  advocate  should  have  been  read  and  certified  copies  ap- 
pended to  the  record.  Record  should  show  new  judge  advocate  was  sworn.  C.  M. 
O.  47, 1910,  10.  See  Q.  C.  M.  Rec.  32390,  judge  advocate  relieved  during  trial  ac- 
count illness. 

112.  Report  of  cases  delayed  over  10  days—"  It  is  a  standing  order  that  the  judge  advo- 

cate report  all  cases  which  are  delayed  10  days  after  the  charges  and  specifications  are 
received.  This  is  not  to  be  construed  as  authority  to  unnecessarily  delay  trials  over 
10  days;  all  trials  should  be  held  as  soon  as  practicable  and  the  judge  advocate  will 
report  in  all  cases  which  are  not  tried  within  10  days  after  receipt  of  charges  and 
specifications."  File  26504-111:329,  Sec.  Navy,  May  4,  1915.  See  also  C.  M.  O.  20, 
1915,  8. 

113.  Reported  by  president  to  convening  authority— The  president  of  a  general  court- 

martial  may,  without  impropriety,  address  to  the  Secretary  of  the  Navy  directly, 
a  communication  reporting  the  judge  advocate  for  failure  to  properly  discharge  the 
duties  of  his  office.  File  5611-97.  See  also  JUDGE  ADVOCATE,  59,  75. 

A  judge  advocate  was  reported  by  the  president  of  a  general  court-martial  to  the 
convening  authority  for  "reprehensible  carelessness."    File  26260-3653. 

114.  "Scandalous  conduct  tending  to  the  destruction  of  good  morals"— Judge 

advocate  tried  by  general  court-martial.    C.  M.  O.  57,  1880;  104,  1896. 

115.  Sentences— Judge  advocate  must  authenticate.    C.  M.  0. 30, 1900. 

116.  Same — Shall  be  in  handwriting  of  judge  advocate  without  alterations  or  interlinea- 

tions.   See  SENTENCES,  58. 

117.  Service  records— Procedure  in  introducing  in  evidence.    See  EVIDENCE,  DOCUMEN- 

TABY,  36, 37,  45;  SERVICE  RECORDS,  22. 

118.  Solicitor— Assigned  as  assistant  and  associate  for  a  judge  advocate  of  a  court  of  inquiry. 

See  COUNSEL,  49. 

119.  Statements  made  to  Judge  advocate  out  of  court — Except  under  certain  unusual 

circumstances,  it  is  not  proper  for  the  judge  advocate  to  testify  as  to  statements  made 
to  him  out  of  court  during  his  preliminary  examination  of  prospective  witnesses. 
C.  M.  O.  211,  1902, 1. 

120.  Statement  of  accused.    See  JUDGE  ADVOCATE.  35;  STATEMENT  OF  ACCUSED. 

121.  Trials  delayed  over  1O  days— Shall  be  reported.    See  JUDGE  ADVOCATE,  112. 

122.  "Trying  case  out  of  court " — Judge  advocate  should  not.    See  JUDGE  ADVOCATE, 

123,  124. 

123.  Usurpation  of  court's  functions— Judge  advocates  should  not  usurp  functions  of 

court  by  weighing  evidence  outside  of  court  and  advising  court  to  accept  plea  of 
guilty  in  a  less  degree  than  charged.  C.  M.  O.37, 1909, 8;  30, 1910,  5;  1, 1911,  4;  10,  1912, 
7;  30,  1912,  6;  16,  1913,  4;  34,  1913,  8;  1,  1914,  6;  29, 1914,  6;  File  26251-10164: 3,  Mch.  20, 
1915;  C.  M.  O.  42,  1915,  7-8.  See  also  TRYING  CASE  OUT  OF  COURT. 


JUDGE   ADVOCATE.  313 

124.  Same — Or  by  weighing  evidence  in  the  case  as  shown  bjr  the  original  papers  sent  them 

by  the  department  and  withholding  evidence  often  of  importance  and  which  should 
be  submitted  to  the  court  for  its  consideration.  C.  M.  O.  1,  1914,  6. 

125.  Same—Court  not  to  usurp  the  functions  of  the  judge  advocate  by  interfering  with  his 

primary  duty  of  conducting  the  prosecution.  C.  M.  O.  81,  1897,  2.  See  also  C.  M.  O. 
72, 1895  2. 

126.  Samfr— Judge  advocate  objected  to  a  member  asking  a  certain  question  "on  the  ground 

that  it  brought  out  new  testimony  which  he  did  not  wish  to  have  introduced  by  the 
prosecution,  that  as  the  court  officer  authorized  to  conduct  the  prosecution  he  objected 
to  the  court  disturbing  the  general  line  adopted  by  him  for  the  prosecution."  Depart- 
ment held  that  position  taken  by  judge  advocate  was  untenable.  C.  M.  O.  72, 1895,  2. 

127.  Waiver — Of  receipt  of  record  of  proceedings  should  be  secured  from  accused  by  judge 

advocate.    See  RECORD  OF  PROCEEDINGS,  32. 

128.  Witnesses — The  judge  advocate  should  cross-examine  witnesses  as  to  character  of 

accused.    C.  M.  O.  39,  1915. 

129.  Same— Should  not  assist  improperly  witnesses  while  they  are  testifying.    C.  M.  O. 

49.  1915,  12,  13. 

130.  Witness,  as— Only  witness  for  prosecution.    C.  M.  O.  37,  1909,  9. 

The  judge  advocate  of  a  general  court-martial  may  legally  give  testimony  before 
the  court.  It  is  in  general,  however,  most  undesirable  that  the  judge  advocate  should 
appear  in  the  capacity  of  a  witness,  except  perhaps  where  the  evidence  to  be  given 
relates  simply  to  the  good  character  or  record  of  the  accused.  C.  M  O.  14. 1911,  4-5. 

Judge  advocate  as  witness  to  introduce  service  record  of  accused.  See  EVIDENCE, 
DOCUMENTARY,  36, 37,  45;  SERVICE  RECORDS,  22. 

131.  Same— The  judge  advocate  having  taken  the  stand  for  the  defense  to  testify  as  to  the 

record  of  the  accused,  neglected  his  duty  as  judge  advocate  when  he  failed  to  cross- 
examine  himself  to  bring  out  the  fact  that  the  accused  had  been  retained  in  the  service 
in  his  first  enlistment  118  days  to  make  good  time  lost  by  absence  over  leave.  C.  M.  O. 
28, 1910,  7. 

132.  Same— The  record  must  shww  that  the  judge  advocate  resumed  his  seat  as  judge 

advocate  after  completing  his  testimony.    C.  M.  O.  37,  1909,  9. 

133.  Same — Before  a  witness  withdraws  from  the  court  room  the  president  shall  warn  him 

not  to  converse  upon  matters  pertaining  to  the  trial  during  its  continuance.  This 
warning  shall  be  omitted  in  the  case  of  members,  the  judge  advocate,  the  accused,  and 
counsel  if  they  are  called  as  witnesses.  C.  M.  O.  37,  1909,  9;  15, 1910,  5;  26, 1910,  8; 
31, 1910,  3;  G.  C.  M.  Rec.  29934. 

134.  Same— There  is  no  authorized  form  of  procedure  permitting  the  judge  advocate, 

after  testifying,  to  waive  the  reading  and  verification  of  his  testimony.  C.  M.  O. 
47, 1910,  6.  See  also  EVIDENCE,  131-133. 

135.  Same — The  judge  advocate  was  called  as  a  witness  for  the  prosecution  after  the 

examination  of  one  of  his  own  witnesses,  and  the  department  remarked:  "While 
not  expressly  prohibited  by  law  or  regulation,  the  appearance  of  the  judge  advocate 
of  a  general  court-martial  as  a  witness  on  the  part  of  the  prosecution  is  regarded  as 
generally  improper  and  not  to  be  resorted  to  in  any  case  where  it  can  be  avoided. 
Moreover,  whenever  it  becomes  necessary  for  such  officer  to  testify  he  should  be  called 
before  the  other  witnesses  for  the  prosecution.  This  irregularity  was  not  considered 
sufficient  to  invalidate  the  proceedings."  C.  M.  0. 108, 1899.  See  also  C.  M.  0. 27, 1882. 

136.  Same — In  a  case  where  the  j udge  advocate  was  called  as  a  witness  and  the  j unior  mem- 

ber of  the  court  acted  as  the  judge  advocate,  the  department  stated: "  The  action  of  the 
court  in  requiring  one  of  its  members  to  perform  duty  as  judge  advocate  is  disapproved. 
The  power  to  relieve  or  appoint  a  member  a  judge  advocate  of  a  court  being  vested 
in  the  convening  authority  alone,  courts-martial  are  not  authorized  to  appoint  or 
assign  a  member  or  other  person  to  duty  as  judge  advocate."  C.  M.  O.  27, 1882. 

JUDGE  ADVOCATE  GENERAL. 

1.  Acting  judge  advocate.    See  Circular,  Sec.  Navy,  July  2,  1878;  Circular,  Sec.  Navy, 

June  28, 1880;  An.  Rep.  J.  A.  G.,  1908,  p.  3. 

2.  Acting  Judge  Advocate  General — The  Secretary  of  the  Navy  designates  officers  of 

the  Navy  or  Marine  Corps  on  duty  in  the  office  of  the  Judge  Advocate  General  to 
act  or  perform  the  duty  of  the  Judge  Advocate  General,  in  his  absence,  and  to  sign 
as  "Acting  Judge  Advocate  General. "  File  22724-29,  Sec.  Navy,  Dec.  8, 1914;  22724- 
32,  Sec.  Navy,  Aug.  21, 1916.  See  also  JUDGE  ADVOCATE  GENERAL,  6. 

3.  Same— During  the  period  between  June  19,  1878,  and  June  8,  1880,  an  Acting  Judge 

Advocate  General  attended  to  the  duties  of  the  Office  of  the  Judge  Advocate  General. 
See  JUDGE  ADVOCATE  GENERAL,  18. 


314  JUDGE   ADVOCATE   GENERAL. 

4.  "Any  other  officer  in  either  department"— These  words  in  R.  s.  179  do  not  apply 

to  the  designation  of  an  Acting  Judge  Advocate  General.    File  22724-20  and  26. 

5.  Appointment  of — "That  the  President  of  the  United  States  be,  and  he  is  hereby, 

authorized  to  appoint,  for  the  terra  of  four  years,  by  and  with  the  advice  and  consent 
of  the  Senate,  from  the  officers  of  the  Navy  or  the  Marine  Corps,  a  Judge  Advocate 
General  of  the  Navy,  with  the  rank,  pay,  and  allowances  of  a  captain  in  the  Navy 
or  a  colonel  in  the  Marine  Corps,  as  the  case  may  be.  And  the  office  of  the  said  Judge 
Advocate  General  shall  be  in  the  Navy  Department,  where  he  shall,  under  the  direc- 
tion of  the  Secretary  of  the  Navy,  receive,  revise,  and  have  recorded  the  proceed- 
ings of  all  courts-martial,  courts  of  inquiry,  and  boards  for  the  examination  of  officers 
for  retirement  and  promotion  in  the  naval  service,  and  perform  such  other  duties 
as  have  heretofore  been  performed  by  the  Solicitor  and  Naval  Judge  Advocate  Gen- 
eral." (Act,  June  8, 1880,  21  Stat.,  164.)  See  JUDGE  ADVOCATE  GENERAL,  18. 

6.  Assistant  to  Judge  Advocate  General— An  officer  of  the  line  of  the  Navy  or  Marine 

Corps  may  be  detailed  as  assistant  to  the  Judge  Advocate  General  of  the  Navy, 
and  in  case  of  death(  resignation,  absence,  or  sickness  of  the  Judge  Advocate  General, 
shall,  unless  otherwise  directed  by  the  President,  as  provided  by  R.  S.  179.  perform 
the  duties  of  the  Judge  Advocate  General  until  his  successor  is  appointed,  or  such 
absence  or  sickness  shall  cease.  (Act,  Aug.  29,  1916,  39  Stat.,  558.)  See  File  N-31, 
4499-79,  Sept.  9, 1916,  for  first  appointment. 

7.  Attorney  General's  opinions— Requests  for  opinions  of  the  Attorney  General  must 

be  accompanied  by  the  written  opinion  of  the  Judge  Advocate  General  or  the  Solic- 
itor, etc.  See  ATTORNEY  GENERAL,  17,18. 

8.  Books,  law.    See  LAW  BOOKS,  1-2. 

9.  Civil  authorities— Delay  in  cases,  involving  delivery  of  enlisted  men  to  civil  author- 

ities, reaching  office  of  the  Judge  Advocate  General.    See  CIVIL  AUTHORITIES,  20,  29. 

10.  Civil  liability — Of  Judge  Advocate  General.    See  LEGAL  LIABILITY,  2. 

11.  Clerks,  extra— During  session  of  Congress.    File  26254-1906,  J.  A.  G.,  Nov.  12,  1915. 

12.  Clerk,  law— Assigned  as  counsel  to  a  judge  advocate  of  a  general  court-martial.    See 

COUNSEL,  39. 

13.  Comptroller  of  the  Treasury— Requests  for  decisions  of.    See  ATTORNEY  GENERAL, 

17. 18;  COMPTROLLER  OF  THE  TREASURY,  12, 14, 15. 

14.  Same— All  requests  for  decisions  of  the  Comptroller  of  the  Treasury  and  other  ques- 

tions involving  points  of  law,  concerning  the  personnel,  should  be  referred  to  the 
department  (Judge  Advocate  General)  for  action,  and  not  handled  by  the  Bureau 
of  Navigation.  File  26254-584,. Sec.  Navy,  Dec.  21,  1910;  26254-588,  Sec.  Navy,  Dec. 
21, 1910.  See  also  File  5460-26,  Sec.  Navy,  Jan.  26, 1909;  26516-9,  Sec.  Navy,  Dec.  1, 
1908. 

15.  Congress— Extra  clerks  during  session  of  Congress.    File  26254-1906,  J.  A.  G.,  Nov. 

12, 1915. 

16.  Court-martial  order — The  Judge  Advocate  General  in  a  certain  case  suggested  that 

the  department's  views  upon  the  matter  contained  in  his  opinion  be  embraced  in 
the  C9urt-martial  order  promulgating  the  case,  for  the  guidance  of  general  courts- 
martial  in  future  cases  where  same  questions  arise.  See  COURT-MARTIAL  ORDERS,  16. 

17.  Duties  of —The  duties  of  the  Judge  Advocate  General  of  the  Navy  shall  be  to  revise 

and  report  upon  the  legal  features  of  and  to  have  recorded  the  proceedings  of  all 
courts-martial,  courts  of  inquiry,  boards  of  investigation  and  inquest,  and  boards 
for  the  examination  of  officers  for  retirement  and  promotion  in  the  naval  service; 
to  prepare  charges  and  specifications  for  courts-martial,  and  the  necessary  orders 
convening  courts-martial,  in  cases  where  such  courts  are  ordered  by  the  Secretary 
of  the  Navy;  to  prepare  court-martial  orders  promulgating  the  final  action  of  the 
reviewing  authority  m  court-martial  cases;  to  prepare  the  necessary  orders  convening 
courts  of  inquiry  in  cases  where  such  courts  are  ordered  by  the  Secretary  of  the  Navy, 
and  boards  for  the  examination  of  officers  for  promotion  and  retirement,  and  for  the 
examination  of  candidates  for  appointment  as  commissioned  officers  in  the  Navy 
other  than  midshipmen,  and  to  conduct  all  official  correspondence  relating  to  such 
courts  and  boards. 

It  shall  also  be  the  duty  of  the  Judge  Advocate  General  to  examine  and  report  upon 
all  questions  relating  to  rank  and  precedence,  to  promotions  and  retirements,  and  to 
the  validity  of  the  proceedings  in  court-martial  cases,  all  matters  relating  to  the 
supervision  and  control  of  naval  prisons  and  prisoners;  the  removal  of  the  mark  of 
desertion ;  the  correction  of  records  of  service  and  reporting  thereupon  in  the  Regular 
or  Volunteer  Navv;  certification  of  discharge  in  true  name;  pardons:  bills  and  reso- 
lutions introduced  in  Congress  relating  to  the  personnel  and  referred  to  the  depart- 


JUDGE   ADVOCATE   GENERAL.  315 

ment  for  report,  and  the  drafting  and  interpretation  of  statutes  relating  to  personnel; 
references  to  the  Comptroller  of  the  Treasury  with  regard  to  pay  and  allowances  of 
the  personnel;  questions  involving  points  of  law  concerning  the  personnel;  proceed- 
ings in  the  civil  courts  in  all  cases  concerning  the  personnel  as  such ;  and  to  conduct 
the  correspondence  respecting  the  foregoing  duties,  including  the  preparation  for 
submission  to  the  Attorney  General  of  all  questions  relating  to  subjects  coming  under 
his  own  cognizance  which  the  Secretary  of  the  Navy  may  direct  to  be  so  referred. 
(R-134J  File  13673-3866,  J.  A.  G.,  Aug.  16,  1916.  See  also  File  26262-728:  2,  Sec. 
Navy,  Jan.  10, 1910;  26262-730:  2;  27231-5;  27231-51: 1,  J.  A.  G.,  Feb.  24,  1913;  26283- 
522,  J.  A.  G.,  Feb.  12,  1913;  26837-3:21,  J.  A.  G.,  Oct.  8,  1914;  26837-3:21,  J.  A.  G., 
Dec.  16,  1914;  Telegram  signed  "Daniels"  Op.-9,  SD-1641,  March  8,  1916,  No.  11008, 
re  records  of  military  commission,  Haiti;  COAST  GUAED,  1;  JUDGE  ADVOCATE  GEN- 
ERAL, 5. 

It  shall  be  the  duty  of  the  Judge  Advocate  General  to  advise  the  Secretary  of  the 
Navy  on  all  matters  relating  to  the  supervision  and  control  of  prisoners  of  war.  of 
vessels  and  individuals  interned  under  custody  of  the  Secretary  of  the  Navy,  and  of 
the  locality  of  internment.  He  shall  advise  the  Secretary  of  the  Navy  on  all  matters 
involving  questions  of  international  law  and  shall  conduct  the  correspondence 
respecting  the  foregoing  duties.  (Navy  Regulations,  1913,  R-134  (3).)  See  File 
28573-1,  Sec.  Navy,  Dec.  23, 1915. 

18.  History  of— The  act  of  March  2, 1865  (13  Stat.  4681,  authorized  the  President  to  appoint 

an  officer  in  the  Navy  Department  to  be  called  the  "Solicitor  and  Naval  Judge 
Advocate  General."  The  appointee,  pursuant  to  this  act,  was  carried  on  the  Navy 
Register  until  1870,  when  the  Department  of  Justice  was  established.  The  act  estab- 
lishing the  Department  of  Justice  (June  22,  1870,  16  Stat.  162)  provided  that  "the 
Solicitor  and  Naval  Judge  Advocate  General,  who  shall  hereafter  be  known  as  the 
Naval  Solicitor,"  should  be  transferred  to  the  Department  of  Justice.  The  incum- 
bent's name  was  then  dropped  from  the  Navy  Register  and  placed  upon  the  rolls 
of  the  Department  of  Justice.  This  office  of  the  Naval  Solicitor  as  it  existed  under 
the  Department  of  Justice  (R.  S.  349)  was  unsuited  to  the  requirements  of  the  naval 
service.  After  that  office  was  abolished  [act  June  19, 1878, 20  Stat.  205]  and  prior  to  the 
establishment  of  the  Office  of  the  Judge  Advocate  General  [act  June  8, 1880,  21  Stat. 
164]  an  officer  was  detailed  as  Acting  Judge  Advocate  General.  File  13673-3866, 
J.  A.  G.,  Aug.  16, 1916. 

The  Office  of  the  Judge  Advocate  General  was  established  by  the  act  of  June  8, 1880 
(21  Stat.,  164).  The  Office  of  Naval  Solicitor  in  the  Department  of  Justice  was 
abolished  by  act  of  June  19,  1878  (20  Stat.,  205).  The  duties  of  the  "Acting  Judge 
Advocate"  were  prescribed  in  a  department  circular  dated  July  2,  1878.  On  June 
28,  1880,  after  the  establishment  of  the  Office  of  the  Judge  Advocate  General,  the 
above-mentioned  circular  was  rescinded  and  on  the  same  date,  by  General  Order  No. 
250,  the  duties  of  the  Judge  Advocate  General  were  defined.  The  duties  therein 
generally  outlined  have  been  gradually  amplified  and  are  set  forth  in  detail  in  Navy 
Regulations,  1905,  R-12  (Navy  Regulations,  1913,  R-103  (3);  R-134).  14  J.  A.  G., 
111J,  Apr.  22,  1909. 

19.  International  law— Questions  arising  under.    See  JUDGE  ADVOCATE  GENERAL,  17. 

20.  Interpretation  of  statutes— The  interpretation  of  statutes  not  relating  to  the  personnel 

is  not  one  of  the  duties  of  the  Judge  Advocate  General  as  defined  by  the  Navy  Regu- 
lations. Such  comes  under  the  jurisdiction  of  the  Solicitor.  File  24482-34,  J.  A.  G., 
May  1, 1911,  p.  3.  See  also  An.  Rep.,  J.  A.  G.,  1916,  p.  17. 

21.  Law  clerk — In  office  of  Judge  Advocate  General  assigned  as  counsel  to  a  judge  advocate 

of  a  general  court-martial.    See  COUNSEL,  39. 

22.  Law  officer  of  the  Navy.    See  ATTORNEY  GENERAL,  17, 18. 

23.  Law,  questions  of.    See  COAST  GUARD,  1;  JUDGE  ADVOCATE  GENERAL,  14,  17; 

QUESTIONS  OF  LAW. 

24.  Legal  liability— Of  Judge  Advocate  General.    See  LEGAL  LIABILITY,  2. 

25.  Mail— Delay  in  mail  reaching  Office  of  Judge  Advocate  General  from  Secretary's  office. 

See  MAIL,  2. 

26.  Navy  Regulations — Interpretation  of.    See  ATTORNEY  GENERAL,  13;  JUDGE  ADVO- 

CATE GENERAL,  14,  17. 

27.  Office  of  the  Judge  Advocate  General— Established  by  act  of  June  8,  1880  (21  Stat. 

164).    G.  0. 250,  June  28, 1880.    Seealso  JUDGE  ADVOCATE  GENERAL,  18. 

28.  Same — The  current  work  in  the  Office  of  the  Judge  Advocate  General  is  amply  suffi- 

cient to  keep  the  entire  office  force  therein  busy.  Therefore,  the  department  has 
adopted  the  policy  of  not  answering  hypothetical  questions.  C.  M.  0. 22, 1915, 8. 


316  JUDGE    ADVOCATE   GENERAL. 

29.  Same — "Knowledge  of  the  law  and  other  qualifications  of  a  high  order  are  necessary 

to  meet  the  requirements  of  the  work  of  the  Office"  of  the  Judge  Advocate  General. 
13  J.  A.  G.,  369,  Sept.  30,  1904. 

30.  Opinions  and  decisions  defined — When  the  Judge  Advocate  General  renders  an 

opinion,  he  states  his  inference  or  conclusion  of  what,  in  contemplation  of  law,  would 
or  should  follow  from  a  given  state  of  facts,  and  where  an  opinion  of  the  Judge  Advo- 
cate General  is_  received,  it  may  be  followed,  or  not,  in  the  judgment  of  the  person 
whose  duty  it  is  to  act  in  the  premises. 

A  decision  is  a  ruling,  or  command,  that  certain  things  shall  follow  from  a  given 
state  of  facts,  and  departmental  decisions  are  made  by  the  head  of  the  department. 
Where  a  decision  has  been  rendered  in  any  case  by  the  Secretary  of  the  Navy,  it  is 
an  authoritative  ruling  or  instruction  which  has  all  the  force  and  effect  of  an  order  or 
command. 

As  with  court  decisions,  so  with  departmental  decisions,  there  may  be  presented 
with  the  decision  an  opinion  or  statement  of  the  reasons  which  influenced  the  head  of 
the  department  in  arriving  at  his  conclusions  and  which  influenced  him  in  rendering 
his  decision,  while  in  other  cases  the  decision  may  stand  alone.  In  either  case,  it  is 
the  decision  and  not  the  opinion,  which  is  binding  upon  all  persons  in  the  Naval 
Establishment  whose  cases  come  within  its  terms. 

The  Judge  Advocate  General  does  not  render  decisions,  and  the  Secretary  of  the 
Navy  does  not  render  opinions  the  former  renders  opinions  and  the  latter,  decisions. 

Where  an  authoritative  ruling,  which  will  have  the  force  and  effect  of  an  order  or 
command  is  desired,  a  decision  should  be  requested  and  this  would  refer  to  a  decision 
of  the  department.  Where  advice  upon  legal  questions  is  deemed  desirable,  an 
ovinion  of  the  Judge  Advocate  General  should  be  requested.  File  13673-3897,  J.  A.  G., 
Oct.  31, 1916;  C.  M.  O.  37, 1916. 

31.  Pardons — Requests  for  pardon,  and  similar  matters — Questions  of  this  character  to 

be  referred  to  the  department  (Judge  Advocate  General)  by  Bureau  of  Navigation 
with  appropriate  recommendation.  File  26516-9,  Dec.  1, 1908.  See  also  File  26251- 
7738,  J.  A.  G..  Sept.  23, 1913. 

32.  Questions  of  law — The  duties  of  the  Judge  Advocate  General  as  defined  by  Navy 

Regulations,  1913,  R-134  (2)  include  all  "questions  involving  points  of  law  concerning 
the  personnel."  See  COAST  GUARD,  1;  JUDGE  ADVOCATE  GENERAL,  14,  17;  QUES- 
TIONS OF  LAW. 

33.  B.  S.  179.    See  JUDGE  ADVOCATE  GENERAL,  4, 18. 

34.  R.  S.  349.    See  JUDGE  ADVOCATE  GENERAL  OF  THE  NAVY,  18. 

35.  "  Solicitor  and  Naval  Judge  Advocate  General."  See  JUDGE  ADVOCATE  GENERAL, 

18. 

36.  "  Solicitor  In  the  Office  of  the  Judge  Advocate  General"— Has  represented  the 

United  States  in  the  Supreme  Court  (U.  S.  v.  Smith,  197  U.  S.  386).    See  File  469-1904. 

37.  Same — The  Office  of  the  Naval  Solicitor  in  the  Department  of  Justice  was  abolished 

by  act  of  June  19, 1878  (20  Stat.,  205). 

The  Office  of  the  Naval  Solicitor  was  established  by  the  act  of  July  1, 1908,  by  sepa- 
rating the  clerical  force  of  the  Office  of  the  Judge  Advocate  General  and  assigning  it 
to  two  offices,  viz,  the  Office  of  the  Judge  Advocate  General  and  the  Office  of  the 
Solicitor.  Wnen  this  was  done,  the  duties  of  the  two  offices  were  promulgated  to  the 
service  by  G.  O.  No.  72,  June  17, 1908.  The  duties  as  laid  down  in  that  order  have 
been  embodied  in  Navy  Regulations,  1909,  R-12,  13.  (Navy  Regulations,  1913, 
R-103  (4);  R-117).  14  J.  A.  G.,  111J,  Apr.  22,  1909. 

38.  Same— Recommendations  upon  the  matter  of  combining  the  offices  of  the  Judge 

Advocate  General  and  Solicitor.    14  J.  A.  G.,  11H,  Apr.  22, 1909. 

39.  Statutes— Interpretation  of.    See  JUDGE  ADVOCATE  GENERAL,  20. 

40.  Title— The  title  of  the  "Judge  Advocate  General"  is  such  and  not  "Judge  Advocate." 

File  7657-103:2,  J.  A.  G.,  July  18, 191 1.    See  also  C.  M.  O.  41,  1916, 6. 

41.  Useless  papers— Destroyed.    File  14287-20,  J.  A.  G.,  Nov.  4, 1915. 

JUDICIAL  NOTICE.    See  also  STATUTES,  10. 

1.  Absence  of  accused — The  court  should  take  judicial  notice  of  the  fact  that  the  accused 

was  four  hundred  miles  from  his  station  and  duty  when  his  leave  expired.  C.  M.  O. 
14,  1914,  4. 

2.  Court-martial  orders.    See  COURT  MARTIAL  ORDERS,  27. 

3.  Days  of  the  week — Counsel  for  the  accused  asked  the  court  to  take  judicial  notice  of 

the  fact  that  certain  dates  came  on  certain  days  of  the  week.  G.  C.  M.  Rec.  30485,  p.  664. 

4.  Definition.   See  WORDS  AND  PHRASES. 


JUDICIAL   NOTICE.  317 

5.  Laws/of  a  State— Naval  court-martial  must  take  judicial  notice  of  the  law  of  a  State 

which  is  pertinent  to  a  case  on  trial,  without  such  law  having  been  referred  to  in  evi- 
dence. C.  M.  O.  27,  1913,  8. 

6.  Manual  of  Interior  Guard  Duty,  United  States  Army,  1914— Court  may  take 

judicial  notice  of.    C.  M.  O.  49,  1915, 12,  13. 

7.  Navy  Regulations — The  Navy  Regulations  may  be  taken  judicial  notice  of  by  a 

court-martial.  C.  M.  O.  23, 1911, 3;  4, 1916, 3;  19, 191C;  File  26251-11900,  Sec.  Navy,  June 
23,  1916;  26251-12309,  J.  A.  G.,  Oct.  24, 1916.  p.  3;  26251-12159;  See  also  STATUTES,  10. 

8.  Negotiable  Instruments — The  court  should  take  judicial  notice  of  the  fact  that  it  is 

customary  in  business  transactions  to  include  the  agreement  as  to  interest  in  the 
body  of  a  negotiable  instrument,  particularly  in  a  State  where  the  law  does  not  pro- 
vide for  the  payment  of  interest  in  the  absence  of  such  agreement.  C.  M.  O.  27,  1913, 
7-8. 

9.  Public  statutes.    Set  FRAUD,  5;  STATUTES,  10;  File  26251-12159. 

10.  Specification — In  certain  cases  must  allege  an  offense  of  which  judicial  notice  can  be 

taken.    C.  M.  O.  33, 1914,  6.    See  also  CHARGES  AND  SPECIFICATIONS,  103. 

11.  State  laws— Naval  courts-martial  must  take  judicial  notice  of  a  State  law  which  is 

pertinent  to  a  case  on  trial.    C.  M.  O.  27, 1913,  8. 

"JUDICIAL  QUESTION." 

1.  Secretary  of  the  Navy— Not  authorized  to  decide.    C.  M.  O.  42, 1915, 14. 

2.  Sunday  ball  playing — At  the  Philadelphia  Navy  Yard.    See  SUNDAY  LAWS. 

3.  Voting — Right  of  officers  and  enlisted  men  to  vote  in  a  certain  State  is  a  "judicial 

question."    See  VOTING,  7. 

JUMPING  SHIP.    See  JEOPAEDY,  FORMER,  44. 

JUNIOR  OFFICERS  INVESTIGATING   SENIORS.    See  BOARDS  OF  INVESTIGA- 
TION, 12. 

JURISDICTION. 

1.  Academic  Board,  Naval  Academy.    See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY. 

2.  Accounting  officers'  Jurisdiction — In  death  gratuity  cases.   See  DEATH  GRATUITY,  1. 

3.  Army  court-martial — None  shall  be  held  on  board  a  naval  vessel.    See  ARMY,  7. 

4.  Same-^Enlisted  men  while  being  transported  on  board  an  Army  transport  shall  not 

be  tried  by  Army  courts-martial.    See  ARMY,  7. 

5.  Same — Marines  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

6.  Army  transport.    See  ARMY,  7. 

7.  Auditor  for  the  Navy  Department.    See  AUDITOR  FOR  THE  NAVY  DEPARTMENT,  5. 

8.  Ball,  on— An  enlisted  man  released  by  Federal  civil  authorities  on  bail  should  not  be 

placed  under  restraint  upon  returning  to  naval  jurisdiction,  unless  he  is  not  to  be 
tried  in  the  civil  court,  since  such  court  has  adequate  power  to  cause  his  appearance 
when  required.  File  26283-281,  June  27, 1911.  See  also  BAIL,  1,  2;  CIVIL  AUTHORITIES, 
31;  GENERAL  ORDER  No.  121.  SEPT.  17, 1914, 14. 

9.  Boston  Navy  Yard.    See  U.  S.  v.  TRAVERS,  28  Fed.  Cas.  16537. 

10.  Same— Naval  vessel  in  Boston  Harbor.    (See  U.  S.  v.  BEVANS,  3  Wheat.  336)  14  J.  A. 

G.  187,  Aug.  4,  1909. 

11.  Cavlte,  P.  I. — Offense  committed  on  board  a  naval  ship  at  Cavite,  P.  I.    File  26524-19, 

Sec.  Navy,  Oct.  26,  1910. 

12.  Ceded  land— Exclusive  in  U.  S.  only  when  so  provided.    File  6769-21,  J.  A.  G.,  July 

19,  1911,  pp.  8,  10,  11,  33;  15  J.  A.  G.  424,  426,  427,  449. 

13.  Chelsea,  Mass.— Marine  Hospital.    See  U.  S.  v.  DAVIS,  25  Fed.  Cas.  14930. 

14.  Chiefs  of  bureaus  In  Navy  Department— Are  subject  to  jurisdiction  of  naval 

courts-martial  (18  Op.  Atty.  Gen.  176).    See  C.  M.  O.  8,  1886. 

15.  China— Murder  outside  of  Peking,  China.    See  MURDER,  9. 

16.  Civil  authorities— Unjust  arrest  of  an  enlisted  man  by  a  police  justice  for  contempt 

of  court.    File  7657-330. 

17.  Same— Delivery  of  enlisted  men  to.    See  CIVIL  AUTHORITIES,  8,  11,  12,  16,  19,  20,  42, 

48,  50;  GENERAL  ORDER  No.  121,  SEPT.  17,  1914. 

18.  Civil  courts — Reviewing  naval  courts-martial  trials — For  list  of  decisions  of  Supreme 

Court  in  reference  to  civil  courts  reviewing  trials  by  naval  general  courts-martial, 
see  File  26262-1625:8,  Sec.  Navy.  See  also  Dynes  v.  Hoover,  20  How.  65;  Ex  parte 
Milligan,  4  Wall.  2;  Wise  v.  Withers,  3  Cranch,  330;  Ex  parte  Reed,  100  U.  S.  13;  Ex 
parte  Mason,  105  U.  S.  696;  Keyes  v.  U.  S..  109  U.  S.  336;  Wales  v.  Whitney,  114  U.  S. 
564;  Moffltt  v.  Kurtz,  115  U.  S.  487;  Smith  v.  Whitney,  116  U.  S.  167:  Inre  Grimley, 
137  U.  S.  147;  U.  8.  v.  Fletcher,  148  U.  S.  84;  Johnson  v.  Sayre,  158  U.  S.  109;  Swaim 


318  JURISDICTION. 

v.  U.  S.,  165  U.  S.  553;  Carter  ».  Roberts,  177  U.  S.  496;  Carter  ».  McClaughry,  183  U. 
8.365. 

19.  Commandants  of  naval  stations.    File  26812;  4469,  Mar.  22, 1906.    See  also  OFFICIAL 

CHANNELS,  1. 

20.  Comptroller  of  the  Treasury.    See  COMPTROLLER  OF  THE  TREASURY. 

21.  Concurrent  jurisdiction — Where  the  same  act  constitutes  an  offense  under  a  State 

law,  as  well  as  an  offense  under  a  law  of  the  United  States,  the  State  coort  has  juris- 
diction to  punish  the  offense  under  its  law,  as  has  also  the  Federal  court.  (Fox  v. 
Ohio,  5  How.,  433;  U.  S.  v.  Marigold,  9  How.,  569;  Moore  v.  Illinois,  14  How.,  19; 
Ex  parte  Siebold,  100  U.  S.,  390;  Cross  v.  North  Carolina,  132  U.  S.,  131.)  14  J.  A.  G. 
188.  Aug.  4, 1909.  See  also  JURISDICTION,  71;  JEOPARDY,  FORMER.  46.  C.  M.  0. 7, 1914, 
10;  File  26251-12159,  p.  22. 

22.  Coroners — If  a  death  occurs  upon  lands  over  which  the  United  States  has  exclusive 

jurisdiction,  and  such  death  was  not  caused  by  any  act  within  the  acknowledged 
jurisdiction  of  the  State  within  whose  boundaries  such  land  is  situated,  then  a  coroner 
could  have  no  jurisdiction  in  the  matter  and  could  not,  under  the  reserved  right  of 
the  State  to  serve  process  upon  such  lands,  come  upon  them  and  hold  an  inquest. 
Furthermore,  such  a  proceeding  would  be  of  no  use  as  a  step  in  the  criminal  procedure 
of  the  State,  because  the  State  would  have  no  jurisdiction  to  try  the  offender.  But 
if  the  body  of  a  drowned  person  were  found  in  waters  within  the  limits  of  a  navy 
yard,  and  no  drowning  had  occurred  at  the  yard,  it  would  be  proper  to  allow  the 
coroner  to  hold  an  inquest.  Where  a  person  in  the  naval  service  who  has  been  injured 
outside  the  navy  yard,  returns  thereto  and  dies  from  the  injury,  the  coroner  if  he 
should  so  desire  should  be  permitted  to  hold  an  inquest,  because  the  injury  was 
inflicted  or  occurred  while  the  deceased  was  within  the  jurisdiction  of  the  State. 
In  proper  cases,  and  when  thought  advisable,  but  as  not  establishing  a  precedent  or 
as  acknowledging  any  jurisdiction  of  the  State  to  do  so,  a  coroner  might  be  allowed, 
as  a  matter  of  courtesy,  to  come  into  a  navy  yard  to  hold  an  inquest;  but  before  per- 
mitting such  action,  the  commanding  officer  or  commandant  should  feel  convinced 
that  such  a  course  would  be  advisable  or  accomplish  some  desirable  end.  File  6769-21, 
J.  A.  G.,  July  19, 1911,  pp.  29-33.  See  also  JURISDICTION,  85. 

23.  Same — A  coroner  has  the  right  to  hold  an  inquest  in  case  of  accident  resulting  in  death, 

occurring  within  the  limits  of  a  naval  reservation  where  concurrent  jurisdiction 
exists.  File  3727-97,  quoted  in  File  6769-21,  J.  A.  G.,  July  19,  1911,  p.  30.  See  also 
JURISDICTION,  85. 

24.  Same — In  the  case  of  an  enlisted  man  of  the  Navy  killed  on  board  a  battleship  at  the 

navy  yard,  Philadelphia,  Pa.,  the  coroner  attempted  to  hold  an  inquest  outside 
the  yard  and  applied  for  delivery  of  the  enlisted  man  charged  with  the  homicide  and 
against  whom  court-martial  proceedings  had  been  commenced.  On  advice  of  the 
Department  of  Justice  this  application  was  denied.  File  6674-29,  April,  1907.  See 
also  JURISDICTION,  105;  MURDER,  22-24. 

25.  Courts  of  Inquiry.    See  COURTS  OF  INQUIRY. 

26.  Courts-martial— "Under  every  system  of  military  law,  for  the  government  of  either 

land  or  naval  forces,  the  jurisdiction  of  courts-martial  extends  to  the  trial  and  punish- 
ment of  acts  of  military  or  naval  officers  [and  enlisted  men]  which  tend  to  bring 
disgrace  and  reproach  upon  the  service  of  which  they  are  members,  whether  those 
acts  are  done  in  the  performance  of  military  duties,  or  in  a  civil  position,  or  a  social 
relation,  or  in  private  business."  (Smith  v  Whitney,  116  U.  S.  168, 183.)  [An.  Rep. 
J.  A.  G.,  1915,  p.  13;  File  26251-12159,  Sec.  Navy,  Dec.  9,  1916,  p.  18.] 

"It  is  not  possible  for  an  officer  to  do  any  act  punishable  by  the  known  laws  of  the 
land,  however  foreign  that  act  may  be  to  his  duties  or  immediate  relations  as  a  soldier, 
which  shall  not  be  cognizable  by  court-martial;  that  to  commit  a  crime  of  any  sort  is, 
to  say  the  least  of  it,  in  general,  unofficerlike  and  ungentlemanly  conduct;  that  as  a 
general  proposition  it  is  the  part  of  an  officer  and  a  gentleman  to  observe  the  laws  of 
his  country,  and  for  not  doing  it  he  would  in  most  cases  be  censurable  and  in  all  his 
conduct  would  be  lawfully  subject  to  military  inquiry."  (6  Op.  Atty.  Gen.  413.) 
See  File  5252-74:14, 1915;  26251-9905:17,  J.  A.  G.,  Aug.  31, 1915. 

27.  Same — Review  of  naval  courts-martial  trials  by  civil  courts.    See  JURISDICTION,  18. 

28.  Same — Courts-martial  form  no  part  of  the  judicial  system  of  the  United  States,  and 

their  proceedings,  within  the  limits  of  their  jurisdiction,  can  not  be  controlled  or 
revised  by  the  civil  courts.  (Dynes  t;.  Hoover,  20  How.  65;  Ex  parte  Mason,  105 
U.  S.  696;  Wales  v.  Whitney,  114  U.  S.  564;  Kurtz  c.  Moffltt,  115  U.  S.  500.)  A  naval 
court-martial  is  a  branch  of  the  executive  department  of  the  Government.  See 
JURISDICTION,  37. 


JURISDICTION.  319 

The  decisions  of  naval  courts-martial  are  not  subject  to  review  on  the  questions  of 
conduct  to  the  prejudice  of  good  order  and  discipline  or  conduct  unbecoming  an 
officer  and  a  gentleman.  (Carter  v.  McClaughry,  183  U.  S.,  400;  U.  S.  v.  Fletcher, 
148  U.  S.,  84.)  O.  C.  M.  Rec.  30485,  pp.  768-769. 

29.  Same— A  naval  court-martial  is  a  court  of  limited  jurisdiction.    C.  M.  O.  49,  1910,  9; 

14, 1910,  8;  15, 1910,  9.    See  also  COURT,  104;  EVIDENCE,  21;  JURISDICTION,  73. 

30.  Same — Dissolved,  no  jurisdiction  to  revise  its  proceedings  in  a  former  case  tried  by  it. 

See  COURT,  69,  70;  JURISDICTION,  115;  REVISION,  13. 

31.  Same— Convened  on  foreign  territory.    See  JURISDICTION,  53. 

32.  Same— After  expiration  of  enlistment.    See  ENLISTMENTS,  8;  JURISDICTION,  48,  52. 

33.  Same — Naval  court-martial  may  try  person  subject  to  its  jurisdiction  for  any  offense 

committed  in  the  scope  of  legally  assigned  duties— The  record  of  the  general  court- 
martial  in  the  case  of  an  enlisted  man  who  was  tried  by  order  of  the  commandant 
of  the  naval  station,  Guam,  shows  that  the  accused,  when  arraigned,  entered  a  plea 
to  the  jurisdiction  of  the  court  based,  inter  alia,  upon  the  grounds  that  the  offenses 
alleged  against  him  were  not  military  charges  but  were  founded  upon  an  alleged  viola- 
tion of  the  laws  of  Guam ;  and  that  any  crime  for  which  he  could  be  tried  must  be  a 
military  offense.  The  court  sustained  the  plea  to  the  jurisdiction  and  submitted  the 
record  to  the  convening  authority,  who  directed  the  trial  to  proceed. 

The  plea  of  the  accused  to  the  jurisdiction  in  this  case  was  without  foundation. 
The  decisions  of  courts  show  that  the  essential  features,  in  addition  to  being  legally 
constituted,  to  give  a  general  court-martial  jurisdiction  in  a  case  similar  to  that  of  the 
accused  are,  (a)  that  an  accused  shall  belong  to  an  organization  whose  members  are 
subject  to  trial  by  a  naval  court-martial,  and  (b)  that  the  offense  alleged  against 
him  must  be  one  recognized  by  either  the  laws  regulating  civil  society  or  the  laws 
for  the  government  of  military  forces.  (Ex  parte  Mason,  105  U.  S.  700;  Smith  v. 
Whitney,  116  U.  S.  183;  Ex  parte  Milligan,  4  Wall.  123.)  In  this  case  the  accused 
was  charged  with  having  aided  in  the  violation  of  the  liquor  laws  of  Guam,  which  laws 
it  was  his  duty,  as  acting  chief  of  police  of  that  island,  to  enforce.  There  can  be  no 
question  as  to  the  jurisdiction  over  the  person  of  the  accused,  nor  did  the  accused 
contend  that  the  act  committed  by  him  was  not  in  violation  of  the  duly  authorized 
laws  of  the  island  of  Guam.  Inasmuch  as  the  offense  with  which  the  accused  was 
charged  was  committed  in  the  scope  of  his  duties  as  acting  chief  of  police  of  Guam,  and 
as  this  duty  was  assigned  by  competent  authority  and  was  a  duty  which  could  legally 
be  assigned  to  the  accused,  there  can  be  no  doubt  but  that  his  misconduct  in  the 
execution  of  such  duty  constituted  a  military  delinquency  and  as  such  came  under 
the  cognizance  of  a  naval  court-martial  the  same  as  would  an  offense  committed  by  the 
accused  in  the  course  of  duties  ordinarily  prescribed.  (See  6  Op.  Atty.  Gen.  415.) 
G.  C.  M.  Rec.  No.  31819;  C.  M.  O.  9,  1916,  5-6. 

A  man  while  in  desertion  was  convicted  by  the  civil  authorities  for  an  offense  and 
by  them  placed  on  probation.  He  then  returned  to  naval  jurisdiction.  Held:  That 
a  "general  court-martial  will  not  be  ordered  by  the  department  at  this  time.  File 
26251-5566,  Sec.  Navy,  Jan.  3,  1912. 

34.  Same — Courts-martial  other  than  naval  can  not  convene  on  vessel  of  regular  Navy — 

Naval  Militia  officers  can  not  convene  State  courts-martial  on  board  a  vessel  of  the 
regular  Navy  in  the  service  of  the  United  States;  as  the  established  policy  of  this  Gov- 
ernment, expressed  in  Navy  Regulations  which  have  been  approved  by  Congress 
and  are  still  in  effect,  does  not  permit  any  other  than  a  naval  court-martial  to  be  held 
on  board  a  naval  vessel.  (Citing  Navy  Regulations,  1913,  R-3845;  Navy  Regulations, 
1870,  R-987;  sec.  1547,  R.  S.)  This  policy  has  its  origin  in  the  customs  and  regula- 
tions of  the  British  Navy.  (Citing  McArthur  on  Courts-Martial,  1813,  vol.  1,  p.  205.) 
File  3937-107,  Feb.  16, 1915.  See  also  NAVAL  MILITIA,  38. 

35.  Same — Errors  in  procedure  of  naval  courts-martial — Can  not  be  reviewed  by  civil  courts. 

(See  In  re  McVey,  23  Fed.  Rep.  878;  Ex  parte  Dickey,  204  Fed.  Rep.  322;  Ex  parte 
Tucker,  212  Fed.  Rep.  569;  Ex  parte  Reed,  100  U.  S. 23. ) 

36.  Same — Sufficiency  of  charges  and  specifications  can  not  be  reviewed  by  civil  courts. 

(Ex  parte  Dickey,  204  Fed.  Rep.  322;  Carter  v.  McClaughry,  183  U.  S.  355,  400;  Swaim 
v.  U.  S..  165  U.  8. 553;  Smith  v.  Whitney,  116  U.  S.  178;  U.  S.  v.  Fletcher,  148  U.  S.  84.) 

37.  Same — "Courts-martial  form  no  part  of  the  judicial  system  of  the  United  States,  and 

their  proceedings,  within  the  limits  of  their  jurisdiction,  can  not  be  controlled  or 
revised  by  the  civil  courts."  (Dynes  v.  Hoover,  20  How.  65;  Ex  parte  Mason,  105  U. 
S.  696;  Wales  v.  Whitney,  114  U.  S.  564;  Kurtz  v.  Moffitt,  115  U.  S.  500.) 

A  naval  court-martial  is  a  branch  of  the  Executive  Department  and  not  of  the 
Judicial  Department  of  the  Government.  C.  M.  O.  24, 1914, 19.  See  also  COURT,  82, 
113;  JURISDICTION,  28.  . 

50756°— 17 21 


320  JURISDICTION. 

38.  Same — Sentence — When  affirmed  by  the  military  tribunal  of  last  resort,  the  sentences 

of  naval  courts-martial  can  not  be  revised  by  the  civil  courts  save  only  when  void 
because  of  an  absolute  want  of  power.  See  Carter  v.  McClaughry,  183  U.  S.  380. 

39.  Same — The  following  is  quoted  from  the  civil  court's  opinion  in  the  case  of  a  naval 

general  court-martial  prisoner:  "  The  case  before  me  shows  that  the  court-martial 
under  which  the  petitioner  was  tried  was  properly  constituted;  that  the  charge  and 
specification  were  in  due  form,  and  authorized  under  the  Regulations  for  the  Gov- 
ernment of  the  Navy;  that  the  trial  court  had  jurisdiction  of  the  case,  and  of  the  sub- 
ject matter  of  the  charge;  and  acted  within  the  scope  of  its  lawful  authority;  that  it 
also  acted  within  its  authority  in  imposing  sentence;  that  such  sentence  was  duly 
approved  by  the  commander-in-chief  of  the  Atlantic  Fleet,  by  whom  the  court  was 
convened;  that  it  was  also  approved  by  the  Secretary  of  the  Navy,  the  final  review- 
ing authority  provided  by  law  to  act  upon  records  of  courts-martial,  in  cases  which 
do  not  extend  to  the  loss  of  life,  or  to  the  dismissal  of  a  commissioned  or  warranted 
officer;  that  the  sentence,  therefore,  can  not  be  revised  by  the  civil  courts."  ( Ei  pane 
Dickey,  204  Fed.  Rep.  322.)  See  File  26262-1625:20. 

40.  De  facto  enlisted  men.    See  DE  FACTO,  2;  HONORABLE  DISCHARGE,  3. 

41.  Death  gratuity.   See  DEATH  GRATUITY. 

42.  Deck  courts.   See  DECK  COURTS,  29. 

43.  Decorations— From  foreign  governments.    See  DECORATIONS,  2. 

44.  Detention  barracks'  commanding  officer.    See  DETENTION  BARRACKS. 

45.  Dismissed  officers.    See  JURISDICTION,  97. 

46.  Divested.   See  JURISDICTION,  97. 

47.  Double  Jeopardy.   See  JEOPARDY,  FORMER. 

48.  Enlistment,  expired — Trial  of  man  after  expiration  of  enlistment— It  has  further  been 

held  and  is  now  settled  law  in  regard  to  military  offenders  in  general  that  if  the 
military  jurisdiction  has  once  duly  attached  to  them  previous  to  the  date  of  the 
determination  of  their  legal  period  of  service,  they  may  be  brought  to  trial  by  genera 
court-martial  after  that  date,tfteir  dischargebeingmeanwhile  witlindd.  This  principlel 
has  mostly  been  applied  to  cases  where  the  offense  was  committed  justprior  to  the 
end  of  the  term.  It  is  held  therefore  that  if  before  the  day  on  which  his  servicelegally 
terminates  and  his  right  to  a  discharge iscompletethe proceedings  with  aview  to 
trial  are  commenced  against  him — as  by  an  arrest  or  the  serving  of  charges — the 
military  j  urisdiction  will  fully  attach  and  once  attached  may  be  continued  by  a  trial 
by  a  court-martial  ordered  and  held  after  the  end  of  theterm  of  the  enlistment  of  the 
accused.  File  26251-9965,  J.  A.  G.,  Jan.  28, 1915.  See  also  JURISDICTION,  52, 97. 

49.  Exclusive  jurisdiction  ol  the  United  States.    See  File  3818,  J.  A.  G.,  June  27, 

1906.    SeeaUo  26  Op.  Atty.  Gen.  91;  File  4143-04;  3863-04;  JURISDICTION,  119, 120, 122. 

50.  Same— In  some  cases  offenses  committed  by  persons  in  the  naval  service  are  cognizable 

exclusively  by  naval  courts-martial,  as,  for  example,  where  the  offense  is  a  purely 
military  one,  such  as  "  Desertion"  or  "  Fraudulent  enlistment,"  which  no  civil  court 
has  jurisdiction  to  try.  (File  5252-74:  14,  1915),  or  "  Falsehood"  (File  26251-12159). 

51.  Executive  department — A  naval  court-martial  is  a  branch  of  the  executive,  not  of  the 

judicial,  department  of  the  Government.    See  COURT.  82, 113:  JURISDICTION,  37. 
62.  Expiration  of  enlistment,  trial  after — The  Articles  for  the  Government  of  the  Navy 
provide: 

"And  if  any  person,  being  guilty  of  any  of  the  offenses  described  in  this  article 
while  in  the  naval  service,  receives  his  discharge,  or  is  dismissed  from  the  service, 
he  shall  continue  to  be  liable  to  be  arrested  and  held  for  trial  and  sentence  by  a  court- 
martial  in  the  same  manner  and  to  the  same  extent  as  if  he  had  not  received  such 
discharge  nor  been  dismissed."  (A.  G.  N.  14.)  See  also  In  re  Bogart,  3  Fed.  Cas.  1596. 

When  the  jurisdiction  of  a  court  attaches  in  a  particular  case  by  the  commencement 
of  proceedings  and  arrest  of  accused,  it  will  continue  for  all  purposes  of  trial,  judgment, 
and  execution.  See  File  26251-5447,  Dec.  8, 1911.  See  also  R.  S.  1422  as  amended  by 
act  Mar.  3, 1875  (18  Stat.,  484);  File  26504-102,  J.  A.  G.,  Mar.  1, 1910,  holding  that  the 
Navy  Department  has  authority  to  retain  a  general  court-martial  prisoner  to  serve 
out  his  sentence  after  his  enlistment  has  expired  and  he  has  been  given  a  discharge 
from  the  service.  He  is  not  held  by  the  contract  of  enlistment,  but  under  sentence 
of  a  court.  He  is  a  military  prisoner  though  he  has  ceased  to  be  an  enlisted  man 
of  the  naval  service  (Carter  v.  McClaughry,  183  U.  S.  365).  See  also  BREAKING 
ARREST,  3. 

63.  Foreign  country — When  United  States  forces  have  landed  in  foreign  territory  for 
military  purposes,  that  part  of  the  foreign  territory  actually  occupied  by  such  forces 
is  not  subject  to  foreign  jurisdiction  within  the  meaning  of  Navy  Regulations,  1913, 


JURISDICTION.  321 

R-763,  which  provides  that  "no  naval  general  court-martial,  or  other  assembly  of 
a  judicial  character,  shall  be  ordered  or  permitted  to  assemble  or  conduct  any  part  of 
its  proceedings  in  any  place  subject  to  foreign  juridsiction."  (See  Harwood,  p.  57.) 
File  26504-254,  J.  A.  G.,  Oct.  26, 1915;  C.  M.  O.  42, 1915, 10.  (Haiti.) 

A  court  of  inquiry  was  ordered  to  convene  on  board  the  U.  S.  S.  Hancock,  at  Santo 
Domingo  City,  D.  B.,  or  such  other  places  as  the  court  in  its  judgment  may  deem 
desirable  and  advisable.  File  28028-245,  Sec.  Navy,  Sept.  2,  1916.  See  also  JURIS- 
DICTION,  128. 

54.  Same — Where  a  naval  court-martial  was  held  in  a  place  subject  to  foreign  jurisdiction, 

the  proceedings  were  disapproved.  (Harwood,  p.  57.)  See  C.  M.  O.  42,  1915,  10; 
JURISDICTION,  53. 

55.  Former  jeopardy.    See  JEOPARDY,  FORMER. 

56.  Fraudulent  enlistment — A  man  fraudulently  enlisting  is  subject  to  jurisdiction  of 

a  naval  court-martial.    See  FRAUDULENT  ENLISTMENT. 

57.  General  courts-martial — Convened  on  foreign  territory.    See  JURISDICTION,  53. 

58.  General  Order  No.  121.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914. 

59.  Goat  Island.    File  4778-95,  Sec.  Navy,  Dec.  9,  1916. 

60.  Guam.    See  BANISHMENT,  1;  JURISDICTION,  33. 

Jurisdiction  of  civil  and  naval  courts.  File  9463-03.  See  also  GUAM,  5;  JURISDIC- 
TION, 33. 

61.  Same — Naval  court-martial  may  try  an  enlisted  man  for  violations  of  laws  of  Guam. 

See  JURISDICTION,  33. 

62.  Haiti— Convening  of  general  courts-martial  and  courts  of  inquiry.    See  JURISDICTION,  53. 

63.  Indian  Head,  Md.— Naval  proving  ground.    See  JURISDICTION,  83,84. 

64.  Insular  authorities.    See  JURISDICTION,  11, 94, 106. 108. 

65.  Isthmian  Canal  Zone— An  enlisted  man  on  board  a  naval  vessel  at  anchor  off  Cris- 

tobal, Isthmian  Canal  Zone,  Panama,  did,  feloniously  and  wilfully,  strike,  stab,  and 
cut  another  enlisted  man  attached  to  the  same  vessel  with  a  knife,  inflicting  a  mortal 
wound,  of  which  wound  said  enlisted  man  died.  G.  C.  M.  Rec.  27005.  See  also  File 
26251-7593,  J.  A.  G.,  Apr.  30. 1913. 

66.  Japan— Civil  and  naval  authorities.    See  File  5542-00.    See  also  TREATIES. 

67.  Jeopardy,  Former.    See  JEOPARDY,  FORMER. 

68.  Judicial  department — A  naval  court-martial  is  not  a  branch  of  the  judicial  department 

of  the  Government.    See  COURT,  82, 113;  JURISDICTION,  37,  51. 

69.  Key  West.    See  File  26812-7,  Sec.  Navy,  Aug.  19, 1915. 

70.  Lack  of — Where  there  is  a  want  of  jurisdiction  apparent  upon  the  record  the  pro- 

ceedings of  the  court  are  not  valid.    C.  M.  0. 14,1911,3. 

71.  Lands  leased  or  rented  to  the  United  States— "Ordinarily  the  United  States. 

does  not  possess  exclusive  jurisdiction  over  lands  leased  or  rented  to  the  United  States. 
(See  U.  S.  v.  Tierney,  28  Fed.  Cas.  No.  16517;  6  Comp.  Dec.  877).  File  7940-349, 
Sec.  Navy,  Oct.  17, 1916. 

72.  Letter  of  transmittal — Gives  court  jurisdiction  over  the  person  named  therein. 

C.  M.  O.  8, 1911,  6.    See  also  LETTERS,  28-30. 

73.  Limited  Jurisdiction— A  naval  court-martial  Is  a  court  of  limited  jurisdiction.    See 

COURT,  104;  EVIDENCE,  21;  JURISDICTION,  29. 

74.  Manslaughter.   See  MANSLAUGHTER;  MURDER. 

75.  Marine  battalion  afloat — A  regulation  prescribing  that  the  relations  between  the 

commanding  officer  of  a  marine  battalion  embarked  on  board  an  armed  transport 
of  the  Navy  and  the  naval  commanding  officer  of  the  latter  shall  be  the  same,  as 
nearly  as  possible,  as  those  existing  between  the  commanding  officer  of  marines  at  a 
navy  yard  and  the  commandant  thereof,  so  far  as  it  relates  to  the  administration  of 
punishments  and  the  convening  of  summary  courts-martial  and  deck  courts,  would 
be  contrary  to  law.  15  J.  A.  G.  454.  But  see  JURISDICTION,  76;  SUMMARY  COURTS- 
MARTIAL,  22. 

76.  Same— When  a  force  of  marines  is  embarked  on  a  naval  vessel,  or  vessels,  as  a  separate 

organization,  not  a  part  of  the  authorized  complement  thereof,  the  authority  and 
powers  of  the  officers  of  such  separate  organization  of  marines  shall  be  the  same  as 
though  such  organization  were  serving  at  a  navy  yard  on  shore,  but  nothing  herem 
shall  be  construed  as  impairing  the  paramount  authority  of  the  commanding  officer 
of  anv  naval  vessel,  over  the  vessel  under  his  command  and  all  persons  embarked 
thereon.  (Act,  Aug.  29, 1916, 39  Stat.  586.) 

77.  Marine  brigade,  Philippine  Islands.    See  File  21277,  Sec.  Navy,  Mar.  31,  1906. 

See  also  FOe  5530.  J.  A.  G.  -    -    


322  JURISDICTION. 

78.  Marines  serving  with  Army — A  marine  having  committed  an  offense  wnile  detached 

for  service  with  Army  was  returned  to  jurisdiction  of  Navy  and  tried  by  naval  general 
court-martial.  Held,  that  naval  court-martial  was  without  jurisdiction  and  that 
prisoner  is  entitled  to  release  in  habeas  corpus  proceedings.  C.  M.  O.  31,  1915,  6. 
See  also  MARINES  SERVING  WITH  ARMY,  7. 

79.  Same — Sentence  imposed  by  Army  court-martial,  mitigated  by  President  after  return 

of  accused  to  naval  jurisdiction.    See  MARINES  SERVING  WITH  ARMY,  6. 

80.  Military  offenses.    See  JURISDICTION,  26,  50. 

81.  Murder.    See  JURISDICTION,  90, 94, 102;  MANSLAUGHTER;  MURDER. 

82.  Naval  Mllltla.    See  NAVAL  MILITIA. 

83.  Naval  proving  ground,  Indian  Head,  Md.    See  File  6692-233;  6769-21;  7001;  7101-5, 

March,  1908;  7101-9;  7101-10,  Apr.  17,  1908;  9212-72,  J.  A.  G.,  Apr.  19, 1916;  26283-988:2. 

84.  Same — In  an  opinion  rendered  by  the  attorney  general  of  tne  State  of  Maryland, 

February  7,  1916,  it  was  held  that  the  United  States  unquestionably  have  exclusive 
jurisdiction  over  the  Naval  Proving  Ground,  Indian  Head,  Md.,  except  for  the  right 
of  the  State  to  execute  process  upon  the  reservation  for  offenses  committed  outside, 
but  the  State  has  no  right  to  punish  offenses  committed  in  the  reservation.  See 
File  6692-233:7. 

85.  Naval  reservations— Coroners  have  a  right  to  hold  an  inquest  in  case  of  accidental 

death  occurring  within  the  limits  of  a  naval  reservation  where  concurrent  jurisdiction 
exists.  File  1766-03;  3726-97;  7101.  See  also  JURISDICTION,  22-24. 

The  punishment  of  offenses  committed  on  lands  used  for  public  purposes,  the 
punishment  of  which  is  not  provided  for  by  any  law  of  the  United  States,  shall  be 
the  same  as  provided  by  laws  of  the  State  in  which  situated.  Section  289,  Criminal 
Code,  act  Mar.  4, 1909  (35  Stat.,  1145).  See  File  4143-04;  5103-164:4. 

Right  of  a  collector  of  customs  to  enter  upon  a  naval  reservation  without  assent  of 
commandant.  File 3312-04, 3377704,  J.  A.  G.,  Apr.  14, 1904. 

86.  Naval  stations — Marine  officers'  right  to  command.    File  5530,  Nov.  8, 1906. 

87.  Naval  training  station,  Great  Lakes,  111.    File  14560-174;  26250-331,  Feb.  24,  1912. 

88.  Naval  vessels.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914.    See  also  File  7204:1. 

Sept.  13. 1907;  MURDER,  8, 16,  21,  22-28. 

89.  Navy  mall  clerks.    See  File  7538-74;  26283-524:1 ;  7538-142,  J.  A.  G.,  Dec.  3, 1913;  Ct.  Inq. 

Rec.  5698.    See  also  MAIL  CLERKS. 

90.  New  London,  Conn.— An  enlisted  man  of  the  Navy  committed  an  assault  upon 

another  enlisted  man  on  board  a  naval  vessel  which  was  under  way  in  the  Thames 
River,  opposite  New  London,  Conn.  Man  was  removed  to  naval  hospital,  where  he 
died.  Attorney  General  held  that  the  accused  might  be  tried  by  naval  court-martial 
under  A.  G.  N.  22.  (Op.  of  Attorney  General,  Nov.  15, 1880.)  G.  0. 259.  Jan.  25. 1881. 
See  also  14  J.  A.  G.,  188;  16  Op.  Atty.  Gen.,  578. 

91.  New  York  Navy  Yard— Civil  or  criminal  by  State  or  municipal  authority  in  navy 

yards.  Held,  first:  That  the  reservation  of  the  power  in  the  State  of  New  York  to 
serve  civil  or  criminal  processes  within  the  ceded  limits  does  not  empower  the  State  or 
municipal  authorities  forcibly  to  take  possession  of  persons  in  the  naval  service  within 
such  limits,  subject  to  the  qualification  that  in  order  that  such  service  of  process 
may  not  interfere  with  the  operation  of  the  Federal  Government,  the  person  deputed 
to  perform  that  duty  should  first  obtain  the  permission  of  the  commandant,  and  such 
permission  should  only  be  withheld  upon  the  most  forcible  and  cogent  reasons  of 
public  necessity.  Second:  The  reservation  of  this  power  to  the  State  applies  equally 
to  the  apprehension  of  civil  employees,  whether  classified  or  unclassified,  with  the 
same  qualification  as  stated  above.  Third:  A  similar  answer  is  also  given  in  the 
case  of  a  vessel  permanently  stationed  at  navy  yards.  Fourth:  In  all  cases,  however, 
this  reservation  of  power  to  the  State  of  New  York,  has  no  application  to  offenses 
committed  within  tne  limits  of  the  navy  yard.  File  6769-21,  J.  A.  G.,  July  19,  1911. 
The  coroner  is  wholly  without  jurisdiction  to  conduct  an  investigation  of  deaths 
occurring  within  the  New  York  Navy  Yard  and  his  subpanas  in  such  a  case  are  of  no 
legal  force.  File  26283-988:5.  Sec.  Navy,  Feb.  18,  1916. 

92.  Same— Naval  vessel  in  Wallabout  Bay  at  Cob  dock.    See  U.  S.  v.  Carter  (84  Fed. 

Rep.  622  quoted  in  File  6769-21,  J.  A.  G.,  July  19, 1911,  p.  35.    See  also  MURDER,  26. 

93.  Norfolk,  Va. — Naval  vessel  at  navy  yard,  Norfolk,  Va.    (See  Western  Union  Tel.  Co. 

v.  Chiles,  214  U.  S.  274.)    See  File  6769-21,  J.  A.  G.,  July  19, 1911. 

94.  Olongapo,  P.  I. — Homicide  on  naval  vessel  at  Olongapo,  P.  I.    File  15285-64.    See 

also  Op.  Atty.  Gen.,  Oct.  20,  1909;  26  Op.  Atty.  Gen.  91. 

95.  Same— Jurisdiction  of  Subig  Bay  Naval  Reservation.    See  26  Op.  Atty.  Gen.  91. 


"  JURISDICTION.  323 

96.  Same — All  persons  desiring  to  enter  or  reside  within  the  boundaries  of  the  Subic  Bay 
Naval  Reservation,  which  includes  the  naval  station,  Olongapo,  must  first  obtain 
permission  from  the  commandant  of  the  naval  station,  who  also  has  the  express 
power  to  exclude  and  deport  from  the  reservation  and  naval  station  all  those  persons 
who  may  seem  undesirable.  This  drastic  action  of  deportation  is  taken  only  after 
a  careful  and  thorough  investigation,  and  because  such  persons  have  forfeited  their 
privileges  to  such  an  extent  that  the  public  welfare  and  the  necessity  of  protecting 
the  civil  and  military  interests  demand  their  absence  from  the  reservation. 

Title  to  all  real  estate  of  the  reservation  vests  in  the  United  States  and  the  residents 
are  permitted  to  use  it  by  sufferance,  signing  what  is  known  as  a  "waiver,"  in  which 
they  take  an  oath  that  they  will  surrender  such  property  upon  demand  of  the  United 
States.  File  11406-429,  Sec.  Navy,  July  6,  1915. 

97.  Once  attached — Where  jurisdiction  has  attached,  it  can  not  be  divested  by  mere 

subsequent  change  of  status.  In  accordance  with  this  principle  an  officer  tried  by 
court-martial  and  sentenced  to  dismissal  and  imprisonment  may  be  held  by  the  naval 
authorities  to  serve  out  the  prescribed  term  of  imprisonment  notwithstanding  that 
the  sentence  of  dismissal  is  first  executed.  Upon  the  same  principle,  an  enlisted  man 
who  commits  an  offense  just  prior  to  the  expiration  of  his  enlistment  may  be  held  for 
trial  for  court-martial  after  his  enlistment  expires,  provided  the  necessary  steps  are 
promptly  taken  with  a  view  to  such  trial.  (Carter  v.  McClaughry,  183  U.  S.  383.) 
See  File  26251-5447,  Dec.  8, 1911;  5252-74:14;  ENLISTMENTS,  8-10. 

It  is  a  settled  doctrine  of  this  court  that  a  court  having  possession  of  a  person  or 
property  can  not  be  deprived  of  the  right  to  deal  with  such  person  or  property  until 
its  jurisdiction  is  exhausted,  and  that  no  other  court  has  the  right  to  interfere  with 
such  custody  and  possession.  (In  re  Johnson.  167  U.  S..  121.)  14  J.  A.  G.,  191,  Aug. 
4,1909. 

Where  civil  authorities  have  not  as  yet  acquired  jurisdiction  "the  man  in  question 
should  be  tried  by  naval  court-martial  and  as  stated  by  the  department  (File  7538-74, 
Sec.  Navy,  Oct.  4, 1909)  'such  a  course  would  probably  be  a  more  expeditious  manner 
of  disposing  of  the  case."  File  7538-142,  J.  A.  G.,  Dec.  3, 1913. 

98.  Panama — Canal  Zone.    See  JURISDICTION,  65. 

99.  Paroled  by  civil  authorities— A  naval  court-martial  has  jurisdiction  to  try  and  sen- 

tence an  enlisted  man  paroled  by  the  civil  authorities  where  the  governor  of  the 
State  consents  to  such  man's  delivery  to  the  Navy  for  disciplinary  action.  File 
26524-44. 

100.  Same — An  enlisted  man  arrested  as  a  deserter  while  on  parole  for  a  civil  offense  will 

not  be  tried  by  court-martial,  because  constructively  in  the  custody  of  the  civil 
authorities,  but  should  be  discharged  as  undesirable  as  of  the  date  of  his  conviction 
in  the  civil  courts.  File  4495-02,  May  27,  1902.  See  also  File  26283-281. 

101.  Paymaster's  clerks — Were  subject  to  jurisdiction  of  naval  courts-martial,  even  at 

a  time  when  they  were  not  strictly  officers  of  the  Navy.  See  C.  M.  O.  27,  1887,  13; 
102, 1894;  160,1901;  26, 1902;  31, 1905;  39, 1905;  4, 1907;  32, 1908;  29,  1911;  30,  1911;  26, 1912; 
37, 1912;  35, 1913;  38, 1913;  24, 1915;  20, 1915. 

Naval  general  courts-martial  have  jurisdiction  of  offenses  committed  by  Clerks  to 
Assistant  Paymasters,  U.  S.  M.  C.  C.  M.  0. 10, 1916. 

102.  Peking,  China — Murder  outside  of  Peking.    See  MURDER,  9. 

103.  Pensacola,  Fla.— Navy  yard.     See  7  Op.  Atty.  Gen.  573,  quoted  in  File  6769-21, 

J.  A.  G.,  July  19,  1911",  p.  9. 

104.  Pensions — Taxation  of  service  pensions.    See  JURISDICTION,  127. 

105.  Philadelphia  Navy  Yard — Where  an  enlisted  man  was  charged  with  a  crime  against 

a  civilian,  alleged  to  have  been  committed  on  a  vessel  of  the  Atlantic  Reserve  Fleet 
at  the  navy  jrard,  Philadelphia,  Pa.,  the  department  declined  to  deliver  him  to  the 
civil  authorities  of  Pennsylvania  on  the  ground  that  the  State  was  without  juris- 
diction. File  26524-127,  Mar.  23, 1915.  See  also  JURISDICTION,  24;  MURDER,  22-24. 

With  reference  to  the  authority  of  the  coroner  in  a  case  of  homicide  within  the  limits 
of  this  naval  station,  see  File  26250-752:3,  Sec.  Navy,  Feb.  11, 1916. 

106.  Philippine  Islands — The  courts  of  the  Philippine  Islands  have  no  jurisdiction  ovei 

offenses  committed  on  board  a  naval  vessel  at  Cavite,  P.  I.,  notwithstanding  Act 
No.  1157  of  the  Philippine  Commission,  which  provides  that  "the  jurisdiction  of  the 
city  of  Manila  for  police  purposes  only  shall  extend  to  three  miles  from  the  shore  into 
Manila  Bay,"  etc.  The  laws  for  the  government  of  the  Navy,  the  Navy  Regulations, 
and  lawful  orders  of  superior  naval  authority,  embody  the  only  police  regulations  in 
force  on  board  naval  vessels.  File  26524-19,  Oct.  26,  1910.  See  also  JURISDICTION, 
94-96. 


324  JURISDICTION. 

107.  Poll  Taxes.    See  POLL  TAXES. 

108.  Porto  Rico— A  dvised.  That  the  insular  authprities  would  not  have  the  right  to  arrest 

an  enlisted  man  of  the  Navy  within  the  limits  of  the  naval  station,  San  Juan,  Porto 
Rico.  File  26524-32,  J.  A.  G. ,  July,  1911,  citing  treaty  between  United  States  and  Spain. 

E  reclaimed  Apr.  11,  1899  (30  Stat,  1755);  24  Op.  Atty.  Gen.  10;  act,  July  1,  1902  (32 
tat.  731);  President's  Proclamation,  June  26, 1903  (33  Stat.  pt.  2,  2314);  act.  Apr.  12. 
1900,  sec.  13  (31  Stat.  80);  23  Op.  Atty.  Gen.  566;  25  Op.  Atty.  Gen.  571;  25.6p.  Atty. 
Gen.  194. 

For  authorities  on  the  question  of  jurisdiction  in  the  Territories, and  their  applica- 
tion to  Porto  Rico,  see  File  3818,  June  27, 1906;  1831-8;  8210. 

109.  Prisoners— Service  of  process  upon.    See  GENERAL  ORDER  No.  121,  SEPT.  17,  1914, 

15, 16;  JURISDICTION,  111. 

110.  Same — After  discharge  and  end  of  enlistment — The  department  has  authority  to 

retain  a  general  court-martial  prisoner  to  serve  out  his  sentence  after  his  enlistment 
has  expired  and  he  has  been  given  a  discharge  from  the  service.  See  ENLISTMENTS, 
8-10. 

111.  Same — Civil  or  criminal  processes  upon  court-martial  prisoners — While  it  is  the  desire 

of  the  department  to  cooperate  with  the  civil  authorities  in  the  punishment  of  crime 
and  for  placing  in  their  hands  offenders  for  whom  warrants  have  been  issued,  it  is 
proper  that  such  should  be  done  in  a  way  so  as  to  not  interfere  with  the  trial  by  naval 
courts-martial  and  execution  of  sentences  imposed  thereby  upon  the  men  desired  by 
civil  authorities.  Held,  therefore,  such  men  should  serve  their  sentences  imposed  by 
naval  courts-martial,  unless  the  civil  proceedings  would  be  thereby  barred  by  the 
statute  of  limitations,  and  upon  completion  of  confinement  in  naval  prisons  they 
should  then  be  turned  over  to  the  civil  authorities.  File  2944-2,  Oct.  10,  1905;  26251- 
5546:1,  Jan.  20,  1912;  26524-41,  Mar.  7,  1912.  See  also  GENERAL  ORDER  No.  121, 
SEPT.  17, 1914,  16. 

112.  Questions  involving  Jurisdiction— Matters  involving  questions  of  jurisdiction,  or 

conflict  of  authority,  which  can  not  be  reconciled  by  correspondence  between  officers, 
must  be  referred,  by  officers  of  the  Navy,  to  the  Navy  Department.  (1-5303). 

113.  Resigned  officers — An  officer  who  has  resigned  from  the  naval  service  is  not  subject 

to  jurisdiction  of  naval  courts-martial  on  charges  preferred  after  date  resignation  was 
accepted,  unless  there  is  a  law  conferring  such  jurisdiction.  G.  0. 143,  Oct.  28, 1869. 
See  also  In  re  Bogart,  3  Fed.  Cas.  No.  1596. 

114.  Retired  officers — Are  subject  to  jurisdiction  of  naval  courts-martial.    (See  Runkle  v. 

U.  S.t  19  Ct.  Cls.  396).    See  RETIRED  OFFICERS,  33. 

115.  Revision — After  a  court-martial  has  been  dissolved  it  has  no  jurisdiction  to  revise 

theproceedingsinaformercasetriedbyit.   C.  M.  0.4,1914,11.   See  also  COURT,  69, 70. 

116.  San  Juan,  Porto  Rico.    See  JURISDICTION,  108. 

117.  State  authorities — The  State  authorities  are  not  empowered  to  arrest  persons,  either 

in  the  naval  or  civil  service  of  the  United  States,  within  the  limits  of  a  navy  yard, 
whether  on  shore  or  on  board  vessels  at  the  yard,  without  first  obtaining  the  per- 
mission of  the  commandant,  to  the  end  that  such  service  of  process  shall  not  interfere 
with  or  obstruct  operations  of  the  United  States  Government.  (File  6769-21,  J.  A.  G., 
July  19, 1911,  pp.  33-34.)  However,  where  a  police  officer,  holding  a  warrant  for  the 
arrest  of  an  enlisted  man  upon  a  charge  of  a  misdemeanor,  persuaded  the  man  to  leave 
his  vessel  on  liberty  and  accompany  the  police  officer  outside  the  limits  of  the  navy 
yard,  there  making  the  arrest,  it  was  held  by  the  Attorney  General  that  while  there 
are  authorities  which  indicate  that  an  application  to  the  commanding  officer  is  a  neces- 
sary condition  precedent  to  the  State's  acquiring  jurisdiction  (especially  Ex  parte 
McRoberts,  16  Iowa,  600, 604),  yet  the  better  view,  as  held  in  thecase  of  In  re  O'Connor 
(37  Wis.  379),  is  that  application  to  the  commanding  officer  is  not  jurisdictional,  the 
matter  being  one  that  does  not  go  to  the  jurisdiction  of  the  civil  court  issuing  the 

Erocess;  that  there  is  no  doubt  that  the  members  of  the  military  forces  of  the  United 
tales  are  subject  in  times  of  peace  to  the  criminal  laws  of  the  States;  and  accordingly, 
that  want  of  an  application  to  the  commanding  officer  would  be  a  mere  informality 
which  might  make  the  warrant  of  arrest  irregular  but  would  not  make  it  void  or 
voidable  to  be  attacked  upon  a  habeas  corpus  proceeding.  File  7657-261:1,  Nov. 
14, 1914.  It  is  not  intended  that  there  should  be  any  friction  between  the  civil  and 
naval  authorities  in  this  matter.  Should  a  question  arise  at  any  time  the  commandant 
should  inform  the  local  authorities  that  the  Navy  Department  has  no  desire  to  obstruct 
the  operation  of  State  laws  by  preventing  the  punishment  of  persons  in  the  naval 
service  or  of  persons  in  the  civil  service  for  violation  of  such  laws;  and  that  upon 
presentation  of  lawful  process  in  proper  hands  the  person  wanted  will  invariably  be 
delivered  to  the  civil  officer  or  such  officer  will  be  allowed  to  serve  process  himself, 


JURISDICTION.  325 

whichever  course  appears  the  more  advisable,  provided  that  the  case  is  not  one  in 
which,  by  reason  of  any  Federal  interest  involved,  the  United  States  should  intervene. 
File  6769-21,  J.  A.  G..  July  19, 1911,  p.  36,  quoting  File  6807,  Sec.  Navy,  Mar.  16, 1907. 

118.  Same— The  principle  that  no  State  has  the  right  to  interfere  with  the  instrumentalities 

of  the  Federal  Government  has  been  recognized  from  the  earliest  days  of  our  Govern- 
ment. See  File  6769-21,  J.  A.  G.,  July  19,  1911,  p.  36. 

119.  Same — Purchase  by  consent  of  the  legislature  of  the  State— When  the  title  is  acquired 

by  purchase  by  consent  of  the  legislatures  of  the  States,  the  Federal  jurisdiction  is 
exclusive  of  all  State  authority.  This  follows  from  the  declaration  of  tiie  Constitution 
that  Congress  shall  have  "like  authority  "  over  such  places  as  it  has  over  the  District 
of  Columbia;  that  is,  the  power  of  "exclusive  legislation  in  all  cases  whatsoever." 
Broader  or  clearer  language  could  not  be  used  to  exclude  all  other  authority  than  that 
of  Congress.  File  6769-21,  J.  A.  G.,  July  19,  1911,  pp.  2-8,  citing,  Ft.  Leavenworth 
R.  R.  Co.  v.  Lowe  (114  U.  S.  525);  U.  S.  v.  Cornell  (25  Fed.  Cas.  No.  14867);  Com.  r. 
Clary  (8  Mass.  72);  U.  S.  v.  Meagher  (37  Fed.  Rex>.  875);  U.  S.  v.  San  Francisco  Bridge 
Co.  (88  Fed.  Rep.  891,  894);  U.  S.  v .  Penn  (48  Fed.  Rep.  669).  It  will  be  seen,  there- 
fore, that  the  exclusive  jurisdiction  of  the  United  States  over  lands  within  a  State 
which  it  has  acquired  only  exists  when  the  State  within  whose  borders  the  land  lies 
has  ceded  jurisdiction  to  the  Federal  Government;  that  is,  by  the  consent  of  the 
legislature  of  the  State.  File  6769-21,  J.  A.  G.,  July  19,  1911,  p.  8. 

120.  Same— Consent  of  the  State— The  consent  of  the  States  to  the  purchase  of  land  within 

them  for  the  special  purposes  named  in  clause  17,  section  8,  Article  I  of  the  Constitu- 
tion is  essential,  under  the  Constitution,  to  the  transfer  to  the  General  Government, 
with  the  title  of  political  jurisdiction  and  dominion.  Where  lands  are  acquired 
without  such  consent,  the  possession  of  the  United  States,  unless  political  jurisdic- 
tion be  ceded  to  them  in  some  other  way,  is  simply  that  of  an  ordinary  proprietor. 
The  property  in  that  case,  unless  used  as  a  means  to  carry  out  the  purposes  of  the 
Government,  is  subject  to  the  legislative  authority  and  control  of  the  States  equally 
with  the  property  of  private  individuals.  (Fort  Leavenworth  R.  R.  Co.  v.  Lowe. 
114  U.  S.  531.)  File  6769-21,  J.  A.  G.,  July  19,  1911,  pp.  10-11. 

121.  Same — Reservation  of  power  to  serve  Stale  process — Speaking  generally  of  this 

reservation  of  power  by  the  States  to  serve  civil  and  criminal  process  upon  lands  under 
the  exclusive  jurisdiction  of  the  Federal  Government,  it  may  be  said  that  this  is  not 
considered  as  interfering  hi  any  respect  with  the  supremacy  of  the  United  States 
over  such  lands,  but  is  permitted  to  prevent  them  from  becoming  an  asylum  for 
fugitives  from  justice.  (Ft.  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  531.)  File 
6769-21,  J.  A.  G.,  July  19, 1911,  p.  12,  citing  U.  S.  v.  Travers  (28  Fed.  Cas.  No.  16537); 
U.  S.  v.  Carter  (84  Fed.  622);  U.  S.  v.  Tucker  (122  Fed.  Rep.  518);  Western  Union  Tel. 
Co.  v.  Chiles  (214  U.  S.  274);  In  re  Ladd  (74  Fed.  31);  Steiner's  Case  (6  Op.  Atty.  Gen. 
413);  6  Op.  Atty.  Gen.  577;  7  Op.  Atty.  Gen.  628;  8  Op.  Atty.  Gen.  418;  20  Op.  Atty. 
Gen.  611;  23  Op.  Atty.  Gen.  254;  Army  Digest,  1901,  675,  679,  691,  740,  742,  750,  1699; 
Martin  v.  House  (39  Fed.  Rep.  694). 

122.  Same — Mere  occupancy  with  State's  tacit  consent — Exclusive  jurisdiction  may  be 

acquired  by  the  United  States  with  the  consent  of  the  State  legislature,  but  if  the 
Federal  Government  buys  land,  the  same  as  any  private  Individual  might  do,  it  does 
not  thereby  acquire  any  greater  right  thereover  as  to  jurisdiction  than  would  the 
private  purchaser.  Or,  if  it  leases  land  it  is  not  a  "place"  within  the  meaning  of  the 
17th  clause,  section  8,  Article  I  of  the  Constitution,  for  that  clause  plainly  implies 
the  permanent  use  of  the  property  purchased  for  the  construction  or  erection  of  some 
of  the  structures  designated  or  some  other  needful  building.  File  6769-21,  J.  A.  G., 
July  19,  1911,  p.  10,  citing  U.  S.  v.  Tierney  (28  Fed.  Cas.  No.  16517). 

123.  Statute  of  limitations — Having  run.    See  STATUTE  OF  LIMITATIONS. 

124.  Sentence  of  civil  court  suspended — A  naval  court-martial  has  jurisdiction  over  an 

enlisted  man  convicted  by  a  civil  court,  and  turned  over  to  naval  jurisdiction, 
sentence  being  suspended,  and  he  was  tried  for  his  unauthorized  absence.  File 
26524-44. 

125.  Sublg  Bay  Naval  Reservation.    See  JURISDICTION,  94-96. 

126.  Summary  courts-martial.    See  SUMMARY  COURTS-MARTIAL. 

127.  Taxation  of  service  pensions.    File  9212-22,  J.  A.  G.,  Feb.  21, 1912. 

128.'  Territorial  jurisdiction — There  is  no  territorial  limit  to  the  jurisdiction  of  naval 
courts-martial— The  jurisdiction  of  general  courts-martial  is  not  similar  to  that  of 
civil  courts,  their  jurisdiction  being  coextensive  with  the  territory  of  the  United 
States;  that  is  to  say,  a  general  court  assembled  at  any  locality  within  that  territory 


326  JURISDICTION. 

may  legally  take  cognizance  of  an  offense  committed  at  any  other  such  Ipcality  what- 
ever. Further  in  cases  of  offenses  committed  in  friendly  foreign  territory  entered 
without  the  authority  of  the  government  of  said  territory  they  are,  nevertheless, 
subject  to  the  jurisdiction  of  courts-martial  convened  within  the  United  States, 
provided  the  offender  at  the  time  of  the  offense  was  a  member  of  an  organization, 
detachment,  or  other  forces  under  military  command  and  discipline.  File  26251-9965, 
J.  A.  G.,  Jan.  28, 1915.  See  also  JURISDICTION,  53. 

129.  Trial  of  man^After  expiration  of  enlistment.    See  BREAKING   AKEEST,  3;  EN- 

LISTMENTS, 8-10;  JURISDICTION,  52, 97. 

130.  Voting— Dishonorable  discharge — State  to  decide  effect  of  dishonorable  discharge  on 

right  to  vote,  not  department.    See  VOTING,  7. 

131.  Same — State  must  decide,  not  department,  if  persons  in  naval  service  may  vote  in 

certain  city.    See  VOTING,  7-10. 

132.  Want  of  jurisdiction.    See  JURISDICTION,  70. 

JURORS. 

1.  Members  of  courts-martial— Capacity  as  jurors.    C.  M.  0. 94, 1905, 1.    Seealso  6  Op. 
Atty.  Gen.  200,  206;  COURT,  106. 

JURY. 

1.  Civil  employees— At  navy  yard,  Charleston,  S.  C.    See  File  21090-3,  Sent.  3,  1908; 

20  Op.  Atty.  Gen.,  618.    See  also  CIVIL  EMPLOYEES,  2;  CONSTITUTIONAL  LAW,  8. 

2.  Court  of  Inquiry — A  court  of  inquiry  corresponds  to  a  grand  jury  in  civil  courts,  with 

the  difference  that  the  court  of  inquiry  has  larger  powers  and  the  scope  of  its  investi- 
gation is  broader  than  is  the  case  with  a  grand  jury.  Act  of  Feb.  16, 1909,  38  Stat.  621; 
act  of  Mar.  16, 1878, 20Stat.  30;  art.  57,  A.  G.  N.,  sec.  1624,  R.  S.  See  G.  C.  M.  Rec.  29422; 
File  26251-9280. 

3.  Courts-martial— The  court  in  its  capacity  of  jury  has  the  power  of  determining  the 

weight  to  be  given  to  the  testimony  of  the  accused  and  consider  it  in  coming  to  its 
finding.  File  26251-9649;  G.  C.  M.  Rec.  24745;  C.  M.  O.  16,  1916,  8.  See  also  COURT. 
107;  JURY,  4, 12. 

4.  Same — A  naval  court-martial  in  its  capacity  of  jury  is  the  sole  judge  of  fact.    G.  C.  M. 

Rec.  24735.    See  also  COURT,  107;  JURY,  3,  12. 

5.  Same— Until  the  sentence  of  a  court-martial  has  been  approved  or  disapproved. 

the  case  still  remains  sub  judice.  In  fact,  the  analogy  ofa  court-martial  is  that 
of  a  jury  in  the  trial  of  a  civil  case,  the  approving  power  in  the  former  occupying 
the  relation  of  the  judge  in  the  latter.  The  judge  remands  the  case  to  the  jury  for 
further  consideration.  The  verdict  must  be  accepted  by  the  judge,  and  judgment 
rendered  accordingly,  before  the  verdict  can  have  its  complete  execution  and  effect, 
whether  of  conviction  or  acquittal.  So,  in  the  corresponding  case  it  must  be  with 
the  proceedings  ofa  court-martial  as  respects  the  approving  power.  6  Op .  Atty.  Gen. 
200,  206. 

6.  Same— Trials  by  jury  not  required  in  Navy— Congress  has  power  to  provide  for  the 

trial  and  punishment  of  persons  in  the  naval  service  without  a  jury.  (Dynes  v. 
Hoover,  20  How.  65,  79.)  File  26260-1392,  697,  J.  A.  G.,  June  29, 1911,  p.  30.  See  als9 
MURDER,  15. 

7.  Deck  court  officer— As  jury.    C.  M.  0. 14, 1911,  7.    See  also  DECK  COUBTS,  28. 

8.  Discharge — Honorably  discharged  officer.    See  JURY,  14. 

9.  Government  employee.    See  JURY,  1. 

10.  Grand  Jury— Compared  with  court  of  inquiry.    See  JUKY,  2. 

11.  Honorably  discharged  officer— Liability  for  jury  duty.    See  JURY,  14. 

12.  Members  of  courts-martial — Capacity  as  jurors.    See  JURY,  3,  4,  5. 

13.  Officers— Retired  officers  summoned  to  appear  for  jury  duty  should  urge  to  the  judge 

of  the  court  the  objection  arising  from  his  military  status,  to  his  serving  on  a  civil  jury. 

14.  Same — Department,  is  aware  of  no  law  which  would  excuse  "an  honorably  discharged 

commissioned  officer  of  the  United  States  Navy  from  serving  on  a  Feaeral  jury." 
File  21090-8,  J.  A.  G.,  July  14, 1916.  See  alto  RETIRED  OFFICERS,  41. 

15.  Retired  officers.    See  JURY,  13. 

KEEPING  FALSE  ACCOUNTS. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  28, 1887,  2. 

KIN,  NEXT  OF. 

1.  Medical  records — Deceased  enlisted  men,  furnished  to.    See  MEDICAL  RECORDS,  3-4. 

KNEE. 
1.  Injury  to— Enlisted  man.    See  LINE  OF  DUTY  and  MISCONDUCT  CONSTRUED,  49. 


LAS   ANIMAS   NAVAL   HOSPITAL.  327 

KNOWING    OF    AN    INTENDED    MUTINY,    NOT    COMMUNICATING    HIS 
KNOWLEDGE  TO  HIS  SUPERIOR  OR  COMMANDING  OFFICER. 


MUTINY,  1. 


N'O  WINGLY.    See  also  INTENT.  33;  JOINDER,  TRIAL  IN,  19. 

I.  Defined  and  discussed— In  "Words  and  Phrases  Judicially  Denned"  it  is  stated  that 
"the  term  'knowingly'  imports  a  knowledge  that  the  facts  exist  which  constitute* 


KNOWINGLY. 

1. 

aowingly'  imports  a  knowledge  that  the  facts  exist  which  constitute* 
the  act  or  omission  a  crime  and  does  not  require  knowledge  of  the  unlawfulness  of  the 
act  or  omission";  and  also  that  "'knowingly'  is  equivalent  to  'wilfully.'"  (Fry  v. 
Hubner,  57  Pac.  420,  421:  35  Or.,  184.)  "Knowingly  and  wilfully''  as  used  in 
Revised  Statutes,  paragraph  3995  (U.  S.  Comp.  Stat.  1901,  p.  2716),  providing  that 
any  person  who  shall  knowingly  and  wilfully  obstruct  and  retard  the  passage  of  the 
mail  shall  be  fined,  the  words  "knowingly  and  wilfully"  refer  to  those  who  know 
that  the  acts  performed,  however  innocent  they  may  otherwise  be,  will  have  the 
effect  of  obstructing  and  retarding  the  passage  of  the  mail,  and  they  perform  the  act 
with  the  intention  that  such  will  be  their  operation.  (United  States  v.  Cassidy.  67 
Fed.  Rep.  698,  704.)  C.  M.  O.  12, 1911,  5. 

2.  False  statements— The  accused  was  tried  upon  a  specification  alleging  that,  when 

testifying  before  a  board  of  investigation,  he  made  a  statement  which  "was  know- 
ingly false  and  intended  to  deceive." 

The  evidence  adduced  at  the  trial  showed  clearly  that  the  statement  in  question 
was  false,  but  there  was  no  evidence  introduced  indicating  that  the  statement  was 
knowingly  false  and  intended  to  deceive.  An  analysis  of  the  offense  charged  shows 
that  there  are  two  elements  essential  to  its  completion,  namely  (1)  falsity  of  the 
testimony  in  question  and  (2)  knowledge  of  such  falsity  together  with  an  intention  to 
deceive.  Inasmuch  as  only  (1)  of  the  above  elements  constituting  this  offense  was 
established  by  evidence,  proof  was,  therefore,  lacking  of  the  completion  of  the  offense 
and  the  court  properly  acquitted  the  accused  thereof.  C.  M.  0. 17, 1916, 8. 

3.  Fraudulent  enlistment— In  relation  to.    C.  M.  O.  12,  1911,  5.    See  also   C.    M. 

0. 17,  1916,  8. 

KNOWINGLY  AND  WILFULLY  MISAPPROPRIATING  AND  APPLYING  TO 
HIS  OWN  USE  AND  BENEFIT  MONEY  OF  THE  UNITED  STATES  IN- 
TENDED FOR  THE  NAVAL  SERVICE  THEREOF. 

1.  Chief  Pay  Clerk— Charged  with.    C.  M.  O.  28,  1916. 

2.  Paymaster's  Clerk— Charged  with.    C.  M.  O.  29, 1911. 

3.  Paymaster's  Clerk,  U.  S.  M.  C.— Charged  with.    C.  M.  0. 10, 1916. 

LANDSMAN. 

1.  Rating  of— Abolished  for  the  seaman  branch.     G.  O.  178,  Nov.  29,  1904.    See  also 
C.  M.  O.  36, 1905,  3. 

LANGUAGE.  See  also  STATUTES,  9;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION* 
62-«4. 

1.  Abusive  and  profane — Words  to  be  included  in  specification.    See  CHARGES  AND 

SPECIFICATIONS,  51,  56. 

2.  Intent  of — It  has  been  held  that  language  is  to  be  given  its  ordinary  import  and  meaning 

unless  an  explanation  accompanies  the  use  of  the  words  which  gives  them  a  different 
meaning.    C.  M.  O.  52,  1910,  2. 

3.  Purpose — The  purpose  of  language  is  to  convey  ideas  and  not  to  create  distinctions. 

4.  Threatening  and  profane— Under  Massachusetts  statutes.    See  File  26251-2993:12. 

5.  "Using  abusive  and  threatening  language  toward  another  person  hi  the 

service"— Warrant  officer  charged  with.    C.  M.  O.  10, 1914. 

6.  "Using  obscene  and  threatening  language  toward  another  person  in  the  naval 

service" — Warrant  officer  (commissioned)  charged  with.    C.  M.  O.  28,  1915. 

7.  "Using  provoking  and  reproachful  words  toward  another  person  In  the  Navy" — 

Commissioned  officer  charged  with.    C.  M.  O.  19,  1915.  i  •;/ 

LARCENY.    See  also  THEFT. 

1.  Civil  authorities— Requested  naval  prisoner  to  try  him  for  larceny.    File  26524-217. 
J.  A.  G.,  Dec.  28,  1915. 

LAS  ANIMAS  NAVAL  HOSPITAL. 

1.  Civil  authorities— Delivery  of  enlisted  men  to.    See  CIVIL  AUTHORITIES,  30. 

2.  Summary  courts-martial.   See  SUMMARY  COURTS-MARTIAL,  22;  HOSPITALS,  2. 


328  LEADING   QUESTIONS. 

LAW  BOOKS. 

1.  Number  of  and  approximate  value— In  library  of  Office  of  Judge  Advocate  General. 

File  5087-107,  J.  A.  G.,  Jan.  7, 1913. 

2.  Sale  of.    File  10101-19,  J.  A.  G.,  Sept.  8, 1915;  10101-19:1,  J.  A.  G.,  Oct.  26, 1915. 

LAW  CLERK. 

1.  Counsel  to  Judge  advocate— Law  clerk  in  Office  of  Judge  Advocate  General  assigned 
as  counsel  to  judge  advocate  of  a  general  court-martial.    See  COUNSEL,  39. 

LEAD  DROPPINGS. 

1.  Storage  batteries— Of  submarines.    C.  M.  O.  41, 1915. 

LEADING  QUESTIONS. 

1.  Aiding  a  detective  memory.    See  LEADING  QUESTIONS,  5. 

2.  Alternate  form.   See  LEADING  QUESTIONS,  5. 

3.  Court— May  ask  leading  questions.    File  26262-1194.    See  also  WITNESSES,  41. 

4.  Cross-examination — Allowed  in.    See  LEADING  QUESTIONS,  5. 

5.  Definitions  and  discussion— In  the  case  of  an  officer  where  many  leading  questions 

were  irregularly  permitted  the  department  made  the  following  remarks: 

As  will  be  seen  from  this  line  of  direct  examination,  each  question  suggests  or  puts 
the  desired  answer  in  the  mouth  of  the  witness,  and  was  therefore  subject  to  objection 
and  exclusion  from  evidence  on  account  of  being  leading. 

The  judge  advocate  should  have  objected  to  these  questions  being  asked  the  witness, 
but  since  he  did  not  do  so.  and  the  procedure,  irregular  as  it  was,  favored  the  accused, 
the  proceedings  were  not  held  to  be  invalid. 

Forms  of  Procedure,  1910,  p.  142,  with  reference  to  this  subject  states:  "So  long  as 
the  questions  are  relevant  to  the  issue  considerable  latitude  is  allowed  in  the  direct 
examination  of  witnesses,  but  care  must  be  taken  not  to  ask  leading  questions,  i.  e., 
those  which  suggest  their  answers,  for  they  are  excluded  if  objected  to  by  the  opposite 
party.  Questions  of  identification  of  persons  or  things  which  have  already  been 
described,  introductory  questions,  questions  tending  to  aid  a  defective  memory, 
and  those  asked  a  witness  who  appears  hostile  to  the  party  calling  him,  are  exceptions 
to  this  rule."  Upon  cross-examination  leading  questions  are  permitted. 

In  a  case  published  in  C.  M.  O.  42, 1909,  pp.  7-8,  it  was  noted  by  the  department 
that,  in  the  examination  of  a  witness  for  the  prosecution,  after  he  had  testified  to 
having  heard  a  statement  made  by  the  accused,  the  judge  advocate  asked  the  witness 
this  question: 

"Was  or  was  not  that  statement  voluntary?" 

This  question  was  objected  to  by  a  member  of  the  court  as  being  leading,  and, 
although  the  judge  advocate  in  reply  stated  in  substance  that  this  question  was  con- 
tained in  a  form  sent  him  from  the  office  of  the  Judge  Advocate  General,  the  court 
nevertheless  ruled  that  it  was  a  leading  question  and  should  not  be  asked. 

A  leading  question  has  sometimes  been  incorrectly  defined  as  one  which  may  be 
answered  by  "Yes"  or  "  No."  As  a  matter  of  fact,  such  definition  is  not  helpful,  and 
a  question  which  may  not  be  answered  by  "Yes"  or  "No"  may  well  be  a  leading 
question. 

The  proper  significance  of  the  expression  is  a  suggestive  question — one  which  sug- 
gests or  puts  the  desired  answer  in  the  mouth  of  the  witness.  (See  40Cyc.,  2423.) 
A  question  addressed  to  a  witness  on  examination  is  not  necessarily  leading  because 
it  may  be  answered  "Yes"  or  "No."  A  leading  question  is  one  that  points  out  the 
desired  answer,  and  not  merely  calls  for  a  simple  affirmative  or  negative;  and  an 
interrogatory  which  merely  asks  a  witness  if  he  has  any  idea  as  to  a  fact  which  is  in 
dispute  between  the  parties,  and  directs  him,  if  he  has  such  knowledge,  to  state  the 
extent  thereof,  is  not  objectionable  on  the  ground  of  being  a  leading  question. 
(Coogler  v.  Rhodes,  21  South,  109;  38  Fla.,  240;  56  Am.  St.  Rep.,  170;  People  v.  Mather, 
4  Wend.  (N.  Y.),  229;  21  Am.  Dec.,  122.) 

A  question  is  leading  which  instructs  the  witness  how  to  answer  on  material  points, 

uiswer  which 
form  or  not. 
Tend.  (N.  Y.) 
229,"21  Am.  Dec.  122,  and'Courteen  v.  Touse,  1  Campb.  431.) 

Simply  because  a  question  can  be  answered  by  "Yes"  or  "No"  does  not  neces- 
sarily class  it  as  a  leading  one.  The  question,  "Do  you  recognize  the  accused?"  is 
answerable  by  "Yes"  or  "No,"  and  yet  no  authority  would  consider  this  a  leading 
question.  (See  in  this  connection  G.  C.  M.,  Rec.  32420,  p.  4.) 


LEADING   QUESTIONS.  329 

In  Court-Martial  Order  No.  49, 1910,  p.  18,  the  department  held  that  "it  is  improper 
to  ask  the  witness  *  *  *  if  he  recognizes  the  accused  as  John  Doe,  seaman,  U.  8. 
Navy,  etc." 

The  department  has  held  that  the  following  two  questions  were  leading  when  asked 
on  direct  examination: 

"  Were  you  present  on  the  Philadelphia  on  July  20, 1910,  when  the  accused  was  deliv- 
ered on  board  by  civil  atithorities  of  Tacomaf"  In  this  case  the  accused  was  charged 
with  "Desertion."  (C.  M.  O.  26.  1910,  p.  7.) 

"At  or  about  10.30  a.  m.  that  date  did  you  notice  anything  peculiar  about  the  ac- 
cused?" Here  the  fact  to  be  established  was  the  time.  (C.  M.  O.  28, 1910,  p.  7.); 
C.  M.  O.  48,  1915.  See  also  C.  M.  O.  76,  1899,  1;  33,  1905, 1;  42, 1909,  7-8;  49, 1910, 18; 
26, 1910,  7;  28, 1910, 7;  G.  C.  M.,  Rec.  28681,  pp.  42, 43,  44, 62, 65, 66;  30485,  pp.  41, 42, 453, 
609;  DYING  DECLARATIONS,  1  (p.  202,  line  19). 

The  court,  during  the  examination,  acting  as  judges,  may  propound  leading  ques- 
tions. (Wigmore,  sec.  784.)  At  common  law  a  judge  could  even  call  a  new  witness 
of  his  own  motion,  and  could  seek  evidence  to  inform  himself  judicially;  much  more 
could  he  ask  additional  questions  of  a  witness  already  called  but  imperfectly  examined. 
The  confusion  of  a  witness  would  be  a  further  valid  reason  why  leading  questions 
might,  in  the  discretion  of  the  court,  be  asked.  It  may  be  necessary  to  put  leading 
questions  to  a  child  or  an  ignorant  person,  or  to  one  having  a  defect  of  speech.  When 
and  under  what  circumstances  a  leading  question  may  be  put  is  a  matter  resting  in  the 
sound  discretion  of  the  court,  and  not  a  matter  which  can  be  assigned  for  error.  A 
question  by  the  court  can  not,  in  the  nature  of  the  case,  be  obnoxious,  since  the  court 
is  not  supposed  to  favor  either  side,  and  therefore  neither  for  the  questioner  nor  for 
the  witness  can  the  supposed  danger  of  improper  suggestion  exist.  File  26262-1194, 
J.  A.  G.,  June  11, 1911,  p.  8. 

6.  Direct  examination—  In  general  (subject  to  exceptions),  leading  questions  should  not 

be  asked  in  direct  examination.    See  LEADING  QUESTIONS,  5. 

7.  Examples.    See  LEADING  QUESTIONS,  5. 

8.  Exceptions  to  rule.    See  LEADING  QUESTIONS,  5. 

9.  Hostile  witnesses— Leading  questions  may  be  asked  a  witness  who  appears  hostile 

to  the  party  calling  him  in  direct  examination.    See  File  26251-12462;    LEADING 
QUESTIONS,  5. 

10.  Identification — Leading  questions  of  identification  of  persons  or  things  which  have 

already  been  described  may  be  asked  in  direct  examination.    See  LEADING  QUES- 
TIONS, 5. 

11.  Same- -Frequently;  the  judge  advocates,  in  their  examination  of  witnesses,  ask  a 

question  concerning  the  identity  of  tho  accused  which  is  leading  and  therefore  im- 
proper. 
The  witness  should  be  asked  if  he  recognizes  the  accused ;  and  if  so,  as  whom,  thereby 

Permitting  the  witness  to  state  to  .just  what  extent  he  does  identify  the  accused, 
t  is  improper  to  ask  the  witness,  as  is  so  frequently  done,  if  he  recognizes  the  accused 
as  John  Doe.  seaman,  U.  S.  Navy,  etc.    C.  M.  O.  49,  1910,  17.    See  also  LEADING 
QUESTIONS,  5. 

12.  Instructs  witness — How  to  answer  on  material  points.    See  LEADING  QUESTIONS,  5. 

13.  Introductory  questions — May   be   asked   on   direct  examination.    See  LEADING 

QUESTIONS,  5. 

14.  Judge  advocate — Should  not  ask  leading  questions  (which  are  not  exceptions  to  the 

rule)  in  direct  examination,  particularly  when  accused  is  without  counsel.    See 
JUDGE  ADVOCATE,  36. 

15.  Memory,  defective — Questions  aiding  a  defective  memory.    See  LEADING  QUESTIONS,  5. 

16.  Suggestive  question.    See  LEADING  QUESTIONS,  5. 

17.  "Was  or  was  not."    See  LEADING  QUESTIONS,  5. 

18.  "Yes"  and  "No" — Questions  which  may  be  answered  by.    See  LEADING  QUESTIONS,  5, 

LEAVE  OF  ABSENCE. 

1.  Arrest — Persons  arrested  by  civil  authorities  may  be  granted  leave  of  absence.    See 

GENERAL  ORDER  No.  121,  SEPT.  17, 1914, 14. 

2.  Bail — Leave  of  absence  may  be  granted  by  commanding  officer  to  an  enlisted  man  who 

returns  to  ship  on  bail.    See  BAIL,  1;  CIVIL  AUTHORITIES,  31;  GENERAL  ORDER  No. 
121,  SEPT.  17, 1914, 14. 

3.  Burden  of  ascertaining  time  of  expiration— Is  on  the  individual.    C.  M.  O.  23, 1915. 

4.  Civil  employees — Leave  of  absence  without  pay.    See  LEAVE  OF  ABSENCE,  13. 

5.  Extension  of — Failure  to  receive  positive  permission  to  remain  absent  renders  it 

essential  to  return  at  once.    C.  M.  O.  25, 1915,  2. 


330  LEAVE   OP   ABSENCE. 

6.  Half  pay — Improper  if  such  pay  to  be  forfeited  to  Government— The  Secretary  of  the 

Navy  can  not  grant  an  officer  leave  of  absence  for  one  year,  with  one-half  pay  as  pro- 
vided by  law;  upon  condition  that  said  officer  return  to  the  Government  the  pay 
received  by  him  during  such  leave  of  absence.  However,  should  such  officer  return 
his  salary  to  the  Treasury  it  would  be  received  and  placed  in  the  "conscience  fund" 
and  the  legality  of  the  condition  would  probably  not  arise.  File  13673-1442:1,  J.  A. 
G.,  Jan.  13, 1912. 

7.  Officers— Can  not  be  demanded  as  a  right— If  an  9fficer  chooses  not  to  avail  himself 

of  his  accumulated  leave  of  absence,  or  to  request  it,  it  is  not  demandable  as  a  matter 
of  right,  since  the  granting  of  leaves  of  absence  to  officers  is  discretionary  with  the 
Secretary  of  the  Navy.  File  26253-170:2,  J.  A.  G.,  May  20,  1911.  See  also  LEAVE 
OF  ABSENCE,  8, 10. 

8.  Request  for,  prior  to  retirement— Recommended  that  the  application  of  an  officer 

for  accrued  leave  of  absence  be  disapproved ;  and  that  when  an  officer  is  found  incapaci- 
tated for  active  service  he  be  retired  in  conformity  with  the  provisions  of  law  applicable 
inhiscase.  File 26263-1 70:2,  J.  A.  G.,  May  20, 1911 .  Seealso  LEAVE  OP  ABSENCE,  7, 10. 

9.  Retirement— Request  for,  prior  to  retirement.    See  LEAVE  OF  ABSENCE,  7,  10. 

10.  Right,  not  a— But  a  privilege  granted  to  suit  convenience  of  officer  and  Government — 

Leave  of  absence  is  not  recognized  as  a  right,  but  as  a  privilege  which  is  granted  to  suit 
the  convenience  of  an  officer,  and  of  the  Government.  Held,  where  it  is  definitely 
established  by  a  naval  retiring  board  that  an  officer  is  incapable  of  performing  further 
active  duty,  it  is  for  the  best  interests  of  the  service  that  he  be  placed  on  the  retired 
list  immediately  upon  the  approval  of  the  board 's  finding,  and  a  request  from  such 
an  officer  that  he  be  granted  leave  of  absence  prior  to  being  placed  on  the  retired  list 
was  denied.  (See  File  20253-170:2,  J.  A.  G.,  May  20,  1911.)  File  26253-447,  Sec. 
Navy,  Dec.  7, 1915;  C.  M.  O.  49,  1915,  25.  See.  also  LEAVE  OF  ABSENCE,  7,  8. 

11.  Warrant  officers— As  provided  in  act  of  Aug.  29, 1916.    See  WARRANT  OFFICERS,  14. 

12.  Without  pay — No  legal  effectiveness  could  be  given  to  a  condition  that  leave  would 

be  granted  without  pay,  i.  e.,  as  the  department  would  not  have  the  power  to  enforce 
such  a  condition,  it  would  be  useless  to  give  leave  upon  those  terms.  File  13673- 
1442,  J.  A.  G.,  Nov.  22, 1911.  Seealso  PAY,  115, 116. 

13.  Same — Where  a  person  holds  his  position  in  the  discretion  of  the  Secretary  of  the  Navy, 

and  the  matter  of  leave  of  absence  to  that  person  is  within  the  Secretary's  discretion, 
the  Secretary  may  grant  leave  of  absence  to  such  a  person  subject  to  such  limitations 
and  conditions  as  he  might  impose.  Therefore,  leave  of  absence  for  a  year  may  be 
granted  to  such  person  without  pay,  but  such  a  case  is  distinguishable  from  the  case 
of  an  officer  whose  position  is  not  held  in  the  discretion  of  the  Secretary  of  the  Navy. 
The  Secretary  can  not,  therefore,  grant  an  officer  leave  of  absence  for  an  extended 
period  upon  the  condition  that  such  leave  be  with  pay.  File  13673-1442,  J.  A.  G., 
Nov.  22,  1911.  See  also  File  5252-72,  J.  A.  G.,  Sept.  20,  1915;  Andrews  v.  U.  S.,  49 
Ct.  Cls.,391;  PAY,  115, 116. 

See  File  2704-04,  J.  A.  G.,  Mar.  29, 1904,  with  reference  to  furloughing  a  clerk  of  the 
Navy  Department  without  pay. 

LEAVING  HIS  STATION  BEFORE  BEING  REGULARLY  RELIEVED. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  49, 1915,  16. 

2.  Naval  cadet— Charged  with.    C.  M.  O.  89, 1899. 

3.  Officer— Charged  with.    C.  M.  O.  28, 1908;  25, 1910. 

4.  Specific  Intent— Not  required.    See  INTENT,  2. 

LEAVING  HIS  STATION  BEFORE  BEING  REGULARLY  RELIEVED,  IN 
VIOLATION  OF  PARAGRAPH  9,  ARTICLE  4,  OF  THE  ARTICLES  FOR 
THE  GOVERNMENT  OF  THE  NAVY. 

1.  Midshipmen— Charged  with.    G.  C.  M.  Rec.,  13186. 

LEAVING  HIS  STATION  WITHOUT  BEING  REGULARLY  RELIEVED. 

1.  Officers— Charged  with.    C.  M.  O.  50,  1882;  G.  C.  M.  Rec.,  8821. 

LEAVING  SHIP. 

1.  While  under  suspension  from  duty  and  missing  ship— Officer  tried  by  general 
court-martial  on  charge  of  "Conduct  to  the  prejudice  of  good  order  and  discipline." 
See  CONDUCT  TO  THE  PEEJUDICE  OF  GOOD  ORDER  AND  DISCIPLINE,  10. 


LENDING   MONEY.  331 

LEGAL  ASSISTANCE  FOR  OFFICERS  AND  ENLISTED  MEN. 


evaded  or  declined  furnishing  sufficient  information,  although  the  papers  were 
referred  to  him  for  this  purpose,  the  department  was  unable  to  take  action 
his  request  that  he  be  afforded  legal  assistance  at  the  expense  of  the  United  £ 


re  twice 
upon 

his  request  that  he  be  afforded  legal  assistance  at  the  expense  of  the  United  States. 
His  request  could  not,  therefore,  be  granted.  File  26262-1705:3,  J.  A.  G.,  May  21, 
1915;  C.  M.  O.  20,  1915,  5-6.  See  also  OFFICERS,  86. 

LEGAL  LIABILITY. 

1.  Chief  commissary  steward  (court-martial  prisoner)— Against  five  naval  officers 

in  connection  with  his  court-martial.  File  26522-19:4,  Dec.  3,  1912.  See  also  9  Op. 
Atty.  Gen.  51. 

2.  Judge  Advocate  General— Suit  was  entered  by  a  retired  naval  officer  against  the 

Judge  Advocate  General  of  the  Navy,  based  upon  action  alleged  to  have  been  taken 
by  the  Judge  Advocate  General  in  his  official  capacity.  The  chief  justice  of  the 
Supreme  Court  of  the  District  entered  an  order  dismissing  the  suit.  (At  law,  No. 
46683,  Supreme  Court  of  the  District  of  Columbia.)  File  204-04,  Jan.  15,  1904.  See 
also  9  Op.  Atty.  Gen.  51. 

3.  Mandamus  proceedings — By  a  retired  naval  officer  against  Secretary  of  the  Navy. 

File  27231-8:6,  Feb.  6, 1911.  See  also  14  J.  A.  G.  263;  15  J.  A.  G.  94,  Mar.  10,  1911;  9 
Op.  Atty.  Gen.  51. 

4.  Members  of  courts-martial.    See  MEMBERS  OF  COURTS-MARTIAL,  7;  REVISION,  24. 

5.  Officer — Civil  suit  by  a  pawnbroker  against  a  marine  officer  who  searched  his  shop. 

File  28478-2:1.  See  also  9  Op.  Atty.  Gen.  51;  Steele  v.  Hallingan  (229  Fed.  Rep., 
1011). 

6.  Secretary  of  the  Navy.    See  LEGAL  LIABILITY,  3. 
LEGAL  REPRESENTATIVES. 

Definition— The  words  "legal  representatives"  while  ordinarily  indicating  executors  or 
administrators,  have  been  construed  by  the  courts  in  some  cases  to  apply  to  other 
persons  and  in  the  Navy  Regulations,  1913,  R-2119,  have  been  given  aoroad  inter- 
pretation so  as  to  include  "heirs  at  law,"  and '  'relatives."  File  26250-477 :6*,  J.  A.  G., 
Oct.  8,  1914;  28478-33,  J.  A.  G.,  April  17,  1916. 

LEGATION  GUARDS. 

1.  Orders  to — By  diplomatic  or  consular  officers.    See  DIPLOMATIC  OFFICERS,  2. 

LEGISLATION. 

1.  Attorney's  claim— For  services  in  procuring.    See  DEBTS,  18. 

2.  Influencing— Tne  claims  of  an  attorney  at  law,  against  certain  officers  of  the  Navy  for 

alleged  services  rendered  in  legislation  in  their  behalf  were  held  to  be  not  legal  and 
the  department  should  not  aid  in  their  collection.  File  17789-12:1,  J.  A.  G.,  Feb.  25, 
1910.  See  also  File  13673-3192;  28091-5;  CLAIMS,  5;  DEBTS,  18. 

3.  Lobbying.    See  DEBTS,  18;  CLAIMS,  5;  LEGISLATION,  2. 

4.  Permanent  legislation — As  indicated  by  word  "Hereafter."    See  "HEREAFTER,"  1. 

5.  Restoration  of  dismissed  officers— No  more  powerful  influence  for  the  demoralization 

of  the  naval  service  is  to  be  found  than  that  which  results  from  the  restoration  of 
officers  dismissed  from  the  service  for  drunkenness  or  other  misconduct,  or  for 
demonstrated  incapacity. 

While  affirming  in  the  strongest  terms  its  opinion  of  the  general  inexpediency  of 
restoring  dismissed  officers,  the  department  also  relies  for  the  protection  of  the  service 
upon  the  unconstitutionality  of  legislation  for  such  purposes,  as  set  forth  in  President 
Arthur's  veto  message  of  July  2, 1884.  (See  VIII,  Messages  and  Papers  of  the  Presi- 
dents, 221.)  An  effectual  barrier  has  been  established  by  the  Constitution  to  any 
restoration  to  the  Navy,  by  legislation,  of  particular  officers  who  have  been  dismissed 
therefrom;  and  the  Supremo  Court  has  further  established  the  proposition  that  such 
dismissals  when  once  accomplished  can  not  be  revoked  by  the  Executive.  Annual 
Report  of  the  Secretary  of  the  Navy,  1884,  pp.  42,  43. 

LENDING  MONEY.    See  C.  M.  O.  21,  1910,  6.    See  also  BORROWING  MONET. 


332  LETTEES. 

LETTERS.    See  also  EVIDENECE.  87. 

1.  Accused — Identifying  letter  from  accused.    C.  M.  O.  8,  1905,  3. 

2.  Same^— The  accused  was  tried  upon  the  charge  of  "Desertion,"  the  specification  of 

which  alleged  that  he  deserted  from  the  receiving  ship  Wdbash  on  or  about  the 
first  day  of  November,  1903,  and  continued  in  desertion  until  he  was  apprehended 
by  the  civil  authorities  and  delivered  on  board  said  vessel,  on  the  twenty-sixth  day 
of  December,  1904.  The  accused  pleaded  guilty  to  the  specification,  except  to  the 
words  implying  desertion  and  to  the  charge  he  pleaded  guilty  in  a  less  degree  than 
charged,  guilty  of  absence  without  leave.  The  accused  was,  therefore,  by  his  own 
plea,  guilty  of  an  unauthorized  absence  of  about  fourteen  months. 

The  court  erred  in  admitting  a  letter  from  the  accused,  copy  of  which  was  appended 
as  an  exhibit  and  marked  "  J,"  for  the  letter  so  admitted  had  not  been  sworn  to,  nor 
even  acknowledged  by  the  accused  to  be  his  letter.  With  available  evidence  before 
it  of  such  a  long,  unauthorized  absence  by  the  accused  and  that  he  was  apprehended 
by  the  civil  authorities  and  delivered  on  board  the  Wabash,  the  court  should  have 
rejected  the  plea  of  the  accused  and  proceeded  with  the  trial  upon  its  merits,  but  as 
the  error  of  the  court  worked  to  the  benefit  of  the  accused  and  in  no  wise  to  his  dis- 
advantage the  Judge  Advocate  General  recommended  that,  subject  to  the  foregoing 
remarks,  the  proceedings,  finding  and  sentence  in  the  case  be  approved.  C.  M.  0. 8, 
1905,3.  See  also  LETTERS,  15,  16. 

3.  Same— A  judge  advocate  offered  a  letter  purported  to  have  been  sent  by  the  accused  to 

an  officer  in  charge  of  a  recruiting  district.  It  was  not  shown  to  have  been  written 
by  the  accused  nor  was  it  shown  to  have  been  received  by  the  officer  to  whom  it  was 
addressed.  The  department  held  that  such  letter  was  inadmissible  as  evidence. 
C.  M.  O.  17,  1910,  f. 

4.  Adjutant  and  inspector,  Marine  Corps — Indorsement  on — The  judge  advocate  intro- 

duced in  evidence,  for  the  purpose  of  showing  previous  conviction  of  the  accused,  an 
indorsement  of  the  Adjutant  General  of  the  Army  upon  a  letter  of  the  Adjutant 
and  Inspector  of  the  Marine  Corps.  This  procedure  was  improper  for  such  writing 
is  not  competent  evidence  to  prove  previous  conviction.  C.  M.  O.  47, 1910,  4. 

5.  Same — While  the  witness  was  still  on  the  stand  and  undergoing  cross-examination,  the 

judge  advocate  irregularly  and  improperly  introduced  a  letter  from  the  Adjutant  and 
Inspector,  U.S.  Marine  Corps,  to  the  commanding  officer  of  the  naval  prison  at  the 
navy  yard,  Portsmouth,  N.  H.,  in  reference  to  the  change  of  the  witness's  name  to 
discredit  his  testimony.  C.  M.  O.  47,  1910,  5.  See  also  IMPEACHMENT,  9. 

6.  Army — Letter  from  the  military  authorities  at  Alcatraz  Island,  Cal.,  as  evidence. 

C.  M.  O.  49,  1910, 10. 

7.  Bureau  ol  Navigation — Letters  from  Bureau  of  Navigation  to  judge  advocate  as 

evidence.    C.  M.  O.  12. 1895,  2;  38, 1895,  2. 

8.  Carbon  copies — As  evidence.    See  CARBON  COPIES. 

9.  Charges  and  specifications — Letter  of  transmittal.    See  LETTERS,  28-30. 

10.  Commandant  of  Marine  Corps— Letter  to  judge  advocate  as  evidence.    C.  M.  O. 

47, 1895,  2;  53, 1895,  2. 

11.  Commanding  officer — Letter  of,  as  evidence.    See  LETTERS,  16. 

12.  Confession— Letter  containing  a  confession.    See  C.  M.  O.  41,  1904,  2;  CONFESSIONS, 

13.  Copy  of  letter— As  evidence— A  copy  of  a  document  of  any  kind  is  never  competent 

evidence  when  it  is  practicable  to  produce  the  original  hi  the  case.  The  fact  that  the 
copies  submitted  were  certified  by  the  judge  advocate  showed  conclusively  that  if 
they  were  available  for  the  purpose  of  his  making  a  copy  thereof,  they  were  also 
available  for  introduction  in  evidence,  and,  therefore,  such  copies  as  were  introduced 
were  wholly  incompetent  as  evidence.  C.  M.  O.  40. 1909.  2. 

14.  Cross-examination— The  judge  advocate  objected  to  the  introduction  of  a  certain 

letter  in  evidence  on  the  ground  that  it  was  not  subject  to  cross-examination,  and 
the  court  erred  when  it  did  not  sustain  the  objection.  The  admission  of  the  latter 
in  evidence  was  a  clear  violation  of  the  rule  against  the  admission  of  hearsay  evidence. 
C.  M.  O.  30, 1912,  4.  See  also  C.  M.  O.  6, 1913,  4;  HEARSAY  EVIDENCE,  3. 

15.  Desertion,  to  prove— A  letter  from  the  Bureau  of  Navigation  addressed  to  the  Navy  De- 

partment (Judge  Advocate  General)  through  the  Major  General  Commandant, 
United  States  Marine  Corps,  in  which  it  is  stated  that  the  Bureau  is  informed  that  a 
bluejacket  who  deserted  from  a  certain  naval  vessel  on  a  given  date  is  now  serving 
in  the  Marine  Corps  under  another  name,  is  inadmissible  as  documentary  evidence 
to  prove  desertion  from  the  naval  service.  C.  M.  0. 30, 1910, 6.  See  also  LETTERS,  2, 16. 


LETTERS.  333 

16.  Same — The  judge  advocate  introduced  as  evidence  of  "Desertion"  a  letter  from  the 

commanding  officer  of  the  accused,  reporting  him  to  the  Bureau  of  Navigation  for 
the  offense. 

While  the  introduction  of  this  letter  does  not  appear  to  have  been  objected  to  by 
the  counsel  for  the  accused ,  the  court  erred  in  permitting  the  same,  as  such  a  letter, 
even  when  fully  identified  and  its  character  as  an  original  document  established, 
or,  as  in  this  case,  accepted  without  question  as  to  its  authenticity,  is  not  evidence 
of  the  commission  of  any  offense  set  forth  therein,  but  only  that  the  man  had  been 
charged  with,  or  reported  for,  committing  said  offense.  A  document  of  this  kind 
differs  materially  from  the  man's  enlistment  record  (which  was  properly  introduced 
in  this  case  to  snow  the  fact  of  the  accused's  absence  from  his  ship  without  leave 
from  and  after  a  certain  date),  as  the  latter  is  the  original,  formal  record  of  a  man's 
service  hi  the  Navy  from  the  beginning  of  his  enlistment,  showing,  as  required  by 
law  and  regulations,  the  place,  date,  and  circumstances  of  such  enlistment,  and  the 
dates  of  subsequent  transfers  to  various  ships  or  stations,  and,  in  case  the  man's 
service  be  terminated  before  the  expiration  of  his  enlistment,  the  date  and  place 
of  his  death,,  discharge,  or  of  absenting  himself  in  other  than  an  authorized  manner. 
This  record  is  required  to  be  kept  with  especial  care  and  accuracy,  as  constituting  the 
official  history  of  the  man  to  whom  it  pertains,  and  every  entry  thereon  relating  to  the 
circumstances  above  mentioned,  as  well  as  to  his  conduct  and  professional  ability, 
must  be  authenticated  by  the  signature  of  his  commanding  officer. 

While  the  court's  finding  of  "proved"  as  to  the  first  specification  appears  to  have 
been  based  solely  upon  the  contents  of  the  letter  above  mentioned,  and  was  there- 
fore not  justified  by  any  competent  evidence,  the  offense  alleged  in  the  second  speci- 
fication was  established  in  a  satisfactory  manner,  and  thus  the  finding  of  "guilty" 
upon  the  charge  was  correct. 

Accordingly  the  finding  upon  the  first  specification  was  disapproved.  C.  M.  O. 
74, 1903.  3.  See  also  LETTERS,  2, 15. 

17.  Evidence,  as— Counsel  for  the  accused  irregularly  introduced  documentary  evidence  in 

the  form  of  a  letter  addressed  to  the  agent  of  the  accused  and  also  photographic  copies  of 
certain  checks.  The  record  does  not  show  that  either  the  court  or  the  judge  advocate 
was  afforded  an  opportunity  to  object  to  the  introduction  of  these  documents,  or 
even  that  the  same  were  received  in  evidence  by  the  court.  (Rec.  pp.  9-10.)  Also 
the  judge  advocate  irregularly  introduced  documentary  evidence  hi  the  form  of  a  letter 
written  by  the  Army  and  Navy  Club  to  the  Navy  Department.  In  the  present  case 
the  record  does  not  positively  show,  as  should  be  the  case,  that  the  above-mentioned 
documents  were  properly  identified  before  being  introduced;  that  they  were  submitted 
to  both  the  court  and  the  accused,  or  to  the  court  and  the  judge  advocate,  depending 
upon  the  use  to  be  made  of  this  evidence;  and  whether  or  not  objection  was  made 
to  its  receipt  in  evidence  and  the  court's  action  thereon.  Also,  in  consequence  of 
the  irregular  manner  of  their  introduction,  the  court  did  not  pass  upon  the  question 
of  the  competency  or  relevancy  of  these  documents  as  evidence  to  be  used  in  the  trial 
of  this  case,  and  the  court  thereby  and  to  that  extent  failed  to  fully  perform  its  func- 
tions as  a  court.  C.  M.  O.  15, 1916,  3.  See  also  C.  M.  O.  2..1917,  2. 

The  court  improperly  allowed  the  introduction  of  certain  letters,  testimonial  as  to  the 
previous  good  character  of  the  accused,  to  be  admitted  in  evidence.  Such  procedure 
was  improper,  but 'in  this  case  did  not  affect  adversely  the  interests  of  the  accused. 
The  court  should  have  excluded  these  letters  and  directed  that  such  testimonials  be 
forwarded  by  the  judge  advocate  of  the  court  to  the  department  for  the  consideration 
of  the  reviewing  authority.  File  26251-11479,  Sec.  Navy,  Feb.  16, 1916. 

18.  Same— Letters  are,  hi  general,  incompetent  as  evidence.    C.  M.  0. 74, 1903, 3;  8, 1905,  3; 

47, 1910, 5;  49, 1910, 10;  17, 1910, 4;  30,1910.6;  30, 1912,3-5;  6, 1913,4.  Seealso  EVIDENCE, 
87;  LETTERS,  2,  3,  4, 5, 12-16. 

19.  Form— For  denying  requests  of  pardon  for  unconvicted  deserters.    File  26282-84, 

J.  A.  G.,  March  27, 1912. 

20.  Hearsay — Letters  are,  in  general,  inadmissible  in  evidence  because  they  are  hearsay 

evidence.    See  HEARSAY  EVIDENCE,  3;  LETTERS,  14. 

21.  Letterpress  copies.    See  CARBON  COPIES,  1. 

22.  Letter  of  transmittal.    See  LETTERS,  28-30. 

23.  Midshipman— Form  letter  for  dismissing  a  midshipman.    File  26283-925,  Sept.  18, 

1915. 

24.  Pardon— Form  for  denying.    See  LETTERS.  19. 

25.  Post  adjutant — A  letter  from  a  post  adjutant  introduced  in  evidence  was  held  im- 

properly admitted,  being,  though  official,  a  mere  ex  parte  statement.  (Forms  of 
Procedure,  1910,  p.  147.) 


334  LETTERS. 

26.  Public  reprimand.    See  PUBLIC  REPRIMAND. 

27.  Threatening  letters.    See  OFFICERS,  118. 

28.  Transmittal,  letter  of— The  letter  of  transmittal  is  the  document  that  gives  the  court 

jurisdiction  in  that  particular  case  over  the  person  named  therein.    C.  M.  O. 8, 1911, 6. 
See  also  CHARGES  AND  SPECIFICATIONS,  59. 
Marking  of.    See  CHARGES  AND  SPECIFICATIONS,  59. 

29.  Same— Original  or  certified  copy  mast  be  filed  with  the  charges  and  specifications  as 

a  part  of  the  record.  C.  M.  0. 1, 1894,  3;  3, 1894;  62, 1894;  38, 1895, 2;  47, 1895,  2;  62, 1895; 
56, 1897,  2;  155, 1897,  2;  103, 1899,  2.    See  also  CHARGES  AND  SPECIFICATIONS,  57. 

30.  Same— The  letter  of  transmittal  (transmitting  the  charges  and  specifications  to  the 

judge  advocate)  in  this  case  was  on  the  same  sheet  of  paper  as  the  charges  and  speci- 
fications.   Accordingly,  the  entry  given  on  page  22  of  the  Forms  of  Procedure,  1910, 


ting  to  commanding  officer  copy  of  charges  and  spectflcai 

— The  letter  from  the  convening  authority  to  the  commanding  off 


31. 

accused— The  letter  from  the  convening  authority  to  the  commanding  officer  of  the 
accused ,  transmitting  to  him  for  delivery  to  the  accused  a  copy  of  the  charges  and  speci- 
fications was  appended  to  the  record  marked  "  B,"  and  had  been  read  to  the  court. 
This  letter  has  no  place  in  the  record,  should  not  be  read  to  the  court,  and  should  not 
even  come  into  the  possession  of  the  judge  advocate.  (Forms  of  Procedure,  1910, 
p.  56;  Index-Digest,  1914,  pp.  27, 33.)  C.  M.  0. 6, 1916, 3.  Seealso  C.  M.  O.  47, 1895,  2; 
53, 1895,  2;  26, 1910, 8;  28, 1910,  6;  25, 1914,  3;  42, 1914,  4. 

32.  Unsigned — Written  before  offense  committed — Counsel  for  accused,  with  consent  of 
judge  advocate,  introduced  in  evidence  an  unsigned  letter  purporting  to  have  been 
written  by  deceased  wife  of  accused  and  found  on  a  dresser  in  accused's  apartment 
shortly  after  the  shooting  which  resulted  in  the  death  of  accused's  wife.  Letter  was 
not  identified  as  having,  in  fact,  been  written  by  deceased  and  was  moreover  irrele- 
vant. It  was  not  claimed  that  it  had  been  written  after  the  shooting,  but  a  claim  was 
made  that  it  was  written  before.  Notwithstanding  that  it  was  wholly  and  entirely 
irrelevant  It  must  have  been  accepted  at  the  highest  value  by  court  and  made  the 
basis  of  its  complete  and  unqualified  exoneration  of  the  accused.  The  acquittal  in 
this  case  was  accordingly  disapproved.  C.  M.  O.  5, 1913, 11. 

«'LEY  DE  FUGA'— THE  LAW  OF  FLIGHT."    Ct.  Inq.  Rec.,6029. 

LIBEL.    See  also  STATE,  7. 

1.  Defined  and  discussed  with  reference  to  letters  of  reprimand — An  officer  having 
received  a  letter  of  reprimand  from  the  Secretary  of  the  Navy  for  certain  offenses 
was  later  brought  to  trial  by  general  court-martial  for  the  same  offenses.  When  the 
case  came  on  to  be  heard,  counsel  for  the  accused  presented  a  plea  in  tar.  "by  reason 
of  the  fact  that  the  accused  has  once  been  punished  for  the  same  offense,'*  and  in  sup- 
port thereof,  argued  that  the  letter  addressed  by  the  department  to  the  accused  was  a 
formal  reprimand,  within  the  meaning  of  Navy  Regulations,  1909,  R-265  [See  JEOP- 
ARDT,  FORMER.  19];  that  by  analogy  with  the  law  of  libel  said  letter  must  be  held 


whom  it  was  transmitted  to  the  accused.  The  counsel  for  accused  thus  argued  that 
tlje  law  of  libel  should  be  extended  by  analogy  to  the  question  of  what  constitutes  a 
public  reprimand,  and  that,  therefore,  any  letter  of  reprimand  which  is  seen  by  a 
third  person  is  •public.  Counsel  does  not  specify  whether  by  the  "law  of  libel"  he 
refers  to  criminal  or  civil  libel.  In  either  case,  however,  it  requires  but  little  consider- 
ation to  conclude  that  his  contention  is  wholly  untenable.  All  the  authorities  agree 
that  "public"  is  a  relative  term  used  in  contradistinction  to  the  word  "private."  (See 
State  v.  Sowers,  52  Indiana  311,  312.)  These  terms  properly  have  no  application  to 
the  law  of  libel — it  is  not  necessary  that  a  libel  should  be  public  in  a  usual  sense  of 
the  word  in  order  to  be  actionable,  and  there  can  technically  be  no  such  thing  as  a 
private  libel.  It  is  commonly  said  that  a  libel  must  be  "published"  to  constitute  a 
wrong,  but  a  communication  of  the  defamatory  matter  to  the  mind  of  another — even 
privately  to  the  party  injured,  and  not  to  a  third  person — is  a  publication  thereof, 
rendering  the  offender  subject  to  trial  under  penal  statutes  (State  v.  Shaffner,  44  Atl. 
620, 621 ;  Swindle  v.  State,  10  Tenn.  581, 582);  and  it  has  even  been  held  that  the  writing 
of  a  letter  and  depositing  it  in  the  post  office  for  transportation  to  the  party  addressed, 
constitutes  a  publication  of  it  within  the  law  of  criminal  libel  (Mankins  v.  State,  41 


LIBEL.  335 

Tex.  Cr.  R.  662),  though  the  contents  should  not  in  fact  become  known.  (Haase  v. 
State,  53  N.  J.  Law,  34.)  On  the  other  hand,  under  the  law  of  civil  libel  it  is  necessary 
merely  that  the  matter  should  be  communicated  to  some  person  other  than  the 
parties  to  the  action,  and  the  dictation  of  a  libelous  letter  to  a  stenographer  is  held  a 
sufficient  publication  thereof.  (Gambrill  v.  Schooley,  93  Md.  48.) 

Applying  the  arguments  of  counsel  for  accused,  therefore,  it  would  follow  that  there 
could  be  no  such  thing  as  a  letter  of  private  reprimand  written  by  the  Secretary  of  the 
Navy,  as  such  a  letter  must  of  necessity  be  communicated  to  the  officer  addressed, 
which  of  itself,  would  constitute  a  publication,  according  to  the  law  of  criminal  libel; 
and,  in  any  event,  the  letter  must  be  seen  by  some  official  or  clerk  of  the  Navy  Depart- 
ment in  the  course  of  its  preparation,  recording  and  transmittal,  which  would  consti- 
tute a  publication  according  to  the  law  of  libel  as  applied  in  civil  actions  to  recover 
damages.  File  26251-2993,  J.  A.  G.,  March  10,  1910,  pp.  5-6. 

2.  Enlisted  man— Charged  with  writing  and  mailing  libelous  letter  concerning  his  superior 

officer.    C.  M.  O.  20,  1915,  2. 

3.  Public  and  private  reprimands.    See  LIBEL,  1. 

4.  Publication— It  is  commonly  said  that  a  libel  must  be  "published"  to  constitute  a 

wrong,  but  a  communication  of  the  defamatory  matter  to  the  mind  of  another — even 
privately  to  the  party  injured,  and  not  to  a  third  person — is  a  publication  thereof, 
rendering  the  offender  subject  to  trial  under  penal  statutes  (State  v.  Shaffner,  44 
Atl.  620,  621;  Swindle  v.  State,  10  Term.  581,  582);  and  it  has  even  been  held  that  the 
writing  of  a  letter  and  depositing  it  in  the  post  office  for  transportation  to  the  party 
addressed,  constitutes  a  publication  of  it  within  the  law  of  criminal  libel  (Mankins 
v.  State,  41  Tex.  Cr.  R.  662),  though  the  contents  should  not  in  fact  become  known. 
(Haase  v.  State,  53  N.  J.  Law,  34.)  File  26251-2993,  J.  A.  G.,  March  10,  1910,  quoted 
with  approval  in  File  26251-12158-12159,  J.  A.  G.,  August,  1916.  See  also  File 
26251-12159,  Sec.  Navy,  Dec.  9,  1916,  p.  11;  C.  M.  O.  5, 1917. 

5.  Reprimands.    See  LIBEL,  1. 

6.  Seditious  libel.    See  C.  M.  0. 14, 1910, 14. 

LIBERTY. 

1.  Deprivation  of  on  shore— Distinguished  from  confinement.    See  CONFINEMENT,  12, 13. 

LIBRARY,  LAW. 

1.  Office  of  Judge  Advocate  General.    See  LAW  BOOKS. 

LIGHTSHIPS. 

1.  Appropriations  for.    File  4670-47,  J.  A.  G.,  Nov.  23, 1910,  p.  4. 

LINE  AND  STAFF. 

1.  Controversy  between.    See  COMMAND,  19. 

LINE  OFFICERS.    See  also  OFFICERS. 

1.  Military  command — Line  officers  exercise  military  command.    See  COMMAND,  18, 19. 

2.  Rank  and  title  of — As  compared  with  staff  officers.    See  RANK,  17. 

LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED. 

1.  Accidental  injuries — Fracture  of  skull  due  to  bursting  in  of  an  air  port  in  crew's  head 

while  vessel  was  at  sea  in  heavy  weather.  Death  of  deceased  due  to  one  of  the  ordinary 
hazards  of  life  on  board  ship  while  attending  to  his  daily  needs  in  the  part  of  the  ship 
authorized  for  that  purpose  and  deceased  was  not  negligent.  Held:  Line  of  duty  and 
not  misconduct.  File  26250-335;  Ct.  Inq.  Rec.  5451. 

2.  Acts  of  personal  nature — Distinguished  from  acts  of  duty.    See  LINE  OF  DUTY 

AND  MISCONDUCT  CONSTRUED,  22. 

3.  Air  port— In  crew's  head  bursting  in.    See  LINE  OF  DUTY  AND  MISCONDUCT  CON- 

STRUED, 1. 

4.  Automobile— Officer  killed  while  speeding.    See  LINE  OF  DUTY  AND  MISCONDUCT 

CONSTRUED,  87. 

5.  Bilges — Explosion  of  gasoline  while  cleaning  bilges.    See  LINE  OF  DUTY  AND  MISCON- 

DUCT CONSTRUED,  111. 

6.  Boiler  explosions — Deceased  while  on  duty  In  fireroom  of  naval  vessel  was  burned 

by  flame  and  steam,  death  being  caused  by  external  burns  and  inhalation  of  steam. 
Held:  Line  of  duty  and  not  misconduct.  File  26250-642,  Sec.  Navy,  Mar.  16,  1915; 
Bd.  of  Inquest;  C.  M.  0. 12, 1915,  9.  See  also  Ct.  Inq.  Rec.  No.  6145;  File  26250-643 
to  26250-650,  inc. 

50756°— 17 22 


336  LINE   OF  DUTY  AND   MISCONDUCT   CONSTRUED. 

7.  Boxing  ashore — Deceased  while  boxing  ashore  was  struck  by  uis  opponent  on  the 

jaw,  death  resulting  from  a  combination  of  the  blow  and  head  striking  floor.  Held: 
Not  line  of  duty  but  not  misconduct.  File  26250-ti30,  Sec.  Navy,  Feb.  10, 1915,  Bd.  of 
Inquest;  C.  M.  O.  10,  1915,  8. 

8.  Boxing  on  board  ship— Deceased,  while  boxing  on  board  ship  at  his  own  request 

with  another  enlisted  man  using  five-ounce  gloves,  was  struck  a  shoving  blow  on  the 
right  chin  and  fell,  landing  on  shoulder;  friend  of  opponent;  evidence  that  death 
was  incident  to  a  beginning  right-sided  pneumonia  producing  acute  dilation  of  heart 
as  result  of  exertion  of  boxing.  Held:  Line  of  duty  and  not  misconduct.  File 
26250-624,  Sec.  Navy,  Jan.  25,  1915,  Bd.  of  Inquest;  C.  M.  O.  6,  1915,  12. 

9.  Same— Deceased  engaged  with  shipmate  in  friendly  boxing  bout  on  board  ship,  training 

for  boxing  bouts  for  which  permission  had  been  given  by  commander-in-chief,  using 
boxing  gloves  issued  to  ships  for  boxing  purposes;  tripped  over  stanchion,  fell  to  deck; 
death  due  to  an  intracranial  hemorrhage  due  to  jar  resulting  from  fall  or  blow  on  jaw. 
Held:  Line  of  duty  and  not  misconduct.  File  26250-637,  Sec.  Navy,  March  3,  1915; 
Ct.  Inq.  Rec.  No.  6163;  C.  M.  O.  12,  1915,  9. 

10.  Brain,  concussion.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  16. 

11.  Bunker— Deceased  entered  coal  bunker  and  striking  match.    See  LINE  OF  DUTY  AND 

MISCONDUCT  CONSTRUED,  71. 

12.  Burning.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  111. 

13.  Bursting  of  an  air  port.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  1. 

14.  Coal  bunker.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 

15.  Coaling  ship — Deceased  while  on  duty  coaling  ship  was  struck  by  a  bag  used  in  coaling 

ship.  Held:  Line  of  duty  and  not  misconduct.  File  26250-638,  Sec.  Navy,  March  11, 
1915;  Ct.  Inq.  Rec.  No.  6157;  C.  M.  O.  12,  1915,  9.  See  also  File  26250-41;  26250-225; 
26250-308:1;  Ct.  Inq.  Rec.  No.  5432. 

For  a  case  of  where  an  officer  was  killed  while  coaling  ship,  see  File  26250-744,  Sec. 
Navy,  Feb.  17, 1916. 

16.  Concussion  of  brain — Deceased,  while  on  authorized  liberty  and  riding  a  motor- 

cycle for  his  own  pleasure,  was  thrown  therefrom  and  sustained  injuries  which  re- 
sulted in  death.  There  was  no  evidence  of  negligence  on  the  part  of  the  deceased. 
Held:  Not  line  of  duty  but  not  misconduct.  File  26250-783,  Sec.  Navy,  April  20, 1916; 
C.  M.  O.  13,  1916,  8. 

17.  Crushed  by  turret — Deceased  while  sleeping  during  noon  hour  beneath  overhang  of 

turret  was  killed  by  turret  crushing  his  head  while  it  was  being  trained  for  adjust- 
ments under  competent  direction  and  proper  authority.  Held:  Line  of  duty  and  not 
misconduct.  File  26250-595:1,  Sec.  Navy,  Nov.  13,  1914;  Ct.  of  Inq.  Rec.  No.  6088; 
C.  M.  O.  6,  1915,  12. 

18.  Disappearance— An  enlisted  man,  after  several  days'  debauch  when  sent  to  sick  bay 

on  board  ship  showed  signs  of  alcoholic  poisoning;  disappeared  next  morning  from 
sick  bay,  a  thorough  search  failing  to  disclose  him.  Held:  As  there  was  not  sufficient 
evidence  to  warrant  conclusion  of  death,  final  action  as  to  whether  or  not  he  was 
dead  was  suspended  for  one  year  and  it  was  directed  that  an  entry  to  this  effect  be 
made  on  the  man's  servicerecord.  (File26250-614,  Sec.  Navy,  Jan.  4, 1915;  Ct.  of  Inq. 
Rec.  No.  6123;  C.  M.  O.  6,  1915, 14.)  On  February  5, 1916,  the  department  held  that 
"a  period  of  over  one  year  has  elapsed  since  this  occurrence  and  during  which  time  no 
trace  has  been  found  of"  the  deceased,  the  facts  pertinent  to  the  case  warrant  the 
conclusion  that  he  met  his  death  by  accidental  drowning,  not  in  line  of  duty  and  not 
due  to  his  own  misconduct.  File  26250-614:2,  Sec.  Navy,  Feb.  5, 1916. 

19.  Same— Where  an  enlisted  man  disappeared  from  his  ship,  which  was  within  easy 

swimming  distance  of  the  beach,  and  board  of  investigation  unable  to  come  to  a  defi- 
nite opinion,  the  department  held  that  there  was  not  sufficientevidence  to  warrant 
conclusion  of  death  and  final  action  was  postponed  one  year.  File  26250-631,  Sec. 
Navy,  Feb.  11,  1915;  Bd.  of  Invest.  Rec.  No.  6137;  C.  M.  O.  10, 1915,  10. 

20.  Same — Absent  and  unheard  of— In  the  case  of  an  enlisted  man  who  had  been  absent 

and  unheard  of  from  December  24,  1907,  to  date,  the  department  held  that  this  evi- 
dence was  sufficient  to  raise  the  presumption  of  death,  and  it  was  directed  that  the 
mark  of  desertion  entered  on  his  enlistment  record  be  removed  as  erroneous  and  an 
entry  made  describing  the  details,  and  that  the  department  now  holds  that  he  is 
dead.  File  7657-280,  Sec.  Navy,  Feb.  20, 1915;  C.  M.  0. 10, 1915,  9. 

21.  Same — Foreign  port — Where  an  enlisted  man  disappeared  mysteriously  in  a  foreign 

port  while  on  authorized  liberty;  several  thorough  but  unsuccessful  searches  were 
made;  American  consul  reported  later  that  there  had  been  many  mysterious  dis- 
appearances since  the  outbreak  of  the  War  and  that  the  man  might  have  been  the 


LINE   OF   DUTY    AND   MISCONDUCT   CONSTRUED.          337 

victim  of  foul  play;  the  commanding  officer  recommended  that  mark  of  desertion  be 
removed.  Held,  that,  while  the  length  of  absence  necessary  to  raise  presumption  ol 
death  is  generally  conceded  by  common  law  to  be  seven  years,  this  does  not  prevent 
an  inference  of  death  from  absence  for  a  shorter  period,  where  the  circumstances 
attending  the  case  force  a  conviction  that  death  must  have  occurred;  but  on  the  facts 
of  this  case,  however,  there  is  no  more  reason  for  holding  that  the  man  is  dead  than 
that  he  deserted,  and  there  is  not  sufficient  evidence  to  warrant  the  removal  of  the 
mark  of  desertion  and  closing  his  record  as  by  death.  File  7657-277.  J.  A.  G.,  Feb.  6, 
1915;  C.  M.  O.  10,  1915,  9.  See  afoo'File  26322-3:1,  J.  A.  G.,  Dec.  9,  1915. 

22.  Distinction  Important  between  acts  of  duty  and  those  of  personal  nature— An 

important  fact  which  should  not  be  overlooked  by  officers  serving  on  boards  of  inquest 
or  courts  of  inquiry  in  cases  of  this  character  is  that,  while  "every  person  who  enters 
the  military  service  of  the  country — officer,  soldier,  sailor,  or  marine — takes  upon 
himself  certain  moral  and  legal  engagements  of  duty,  which  constitute  his  official  or 
professional  obligations,"  nevertheless,  "though  a  soldier  or  sailor,  he  is  not  the  less  a 
man  and  a  citizen,  with  private  rights  to  exercise  and  duties  to  perform:  and  while  attending 
to  these  things  he  is  not  in  the  line  of  his  public  duty."  (Attorney  General's  opinion, 
May  17,  1855.  See  also  File  26250-534,  Sec.  Navy,  March  10,  1914.)  In  the  same 
opinion  the  Attorney  General  further  stated  on  this  point:  "It  is  impossible  to  say 
that  the  phrase  casualties  or  injuries  received  'in  the  line  of  duty'  comprehends  all  the 
possible  misadventures  of  mere  private  life,  which  may  happen  to  an  officer  in  his 
personal  affairs,  and  wholly  disconnected  from  his  public  duty,  though  he  be  not  on 
furlough."  In  other  words,  as  was  held  by  the  United  States  Circuit  Court  of  Appeals 
(Rhodes  v.  U .  S. ,  79  Fed. ,  740) ,  in  order  to  support  a  finding  of  line  of  duty  "  the  service 
must  have  been  the  cause  of  the  disease  [or  injury]and  not  merely  coincident  with  it  in  time." 

23.  Drowning — Absent  without  leave — Deceased   with  other  enlisted  men  left  naval 

station  on  board  a  private  gasoline  launch  without  permission  from  proper  authority; 
engine  caught  fire,  all  jumped  overboard  to  swim  to  beach,  but  deceased  drowned. 
Held:  Not  line  of  duty  and  misconduct.  File  26250-531,  Sec.  Navy,  Sept.  12,  1914; 
Ct.  of  Inq.  Rec.  No.  6062;  C.  M.  0. 10, 1915,  9. 

24.  Sarne-^ Absence,  unauthorized— Deceased,   returning   from    unauthorized  absence, 

intoxicated,  attempted  to  go  aboard  ship  over  unauthorized  gangway,  fell  overboard, 
and  was  drowned.  Held:  Not  line  of  duty  and  misconduct.  File  26250-758,  Sec. 
Navy,  April  19, 1916;  C.  M.  0. 13, 1916,  8. 

25.  Same— Bathing  on  G9vernment  territory,  etc.— Deceased  was  drowned  while  bathing 

on  Government  territory  at  place  designated  by  commanding  officer,  who  had  issued 
specific  instructions  encouraging  men  under  his  command  to  learn  to  swim;  deceased 
was  not  on  liberty,  and  act  in  which  he  was  engaged  when  drowned  was  a  customary 
one  at  the  post,  approved  by  the  commanding  officer.  Held:  Line  of  duty  and  not 
misconduct.  File  26250-669,  Sec.  Navy,  May  20,  1915,  Bd.  Inquest;  C.  M.  O.  20, 
1915,  7.  See  also  File  26250-521:2,  Sec.  Navy,  April  18,  1914. 

Deceased  on  duty  at  the  Naval  Station,  Guantanamo,  obtained  permission  to  use 
a  Government-owned  dinghy  for  a  sail  as  an  amusement.  Accidentally  fell  over- 
board and  was  drowned.  Was  not  intoxicated.  Held:  Line  of  duty  and  not  miscon- 
duct. File  26250-853.  See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  57,  58 
(second  paragraph). 

26.  Same— Collision— Deceased,  a  member  of  an  organized  funeral  party  returning  to 

station,  jumped  from  a  cutter  which  had  collided  with  a  tug.  While  evidence  showed 
that  jumping  from  the  cutter  was  an  error  of  judgment  on  the  part  of  the  deceased, 
stillsuch  error  did  not  extend  to  culpability.  Held:  Line  of  duty  and  not  misconduct. 
File  26835-553,  Sec.  Navy,  April  12, 1916;  C.  M.  O.  13,  1916,  7. 

Deceased,  members  of  a  cutter's  crew  at  a  training  station,  attempted  to  turn  boat 
in  breaking  sea.  Error  of  judgment  on  part  of  coxswain  who  was  drowned  with  other 
members  of  crew.  Held:  Line  of  duty  and  not  misconduct.  File  26250-763,  Sec. 
Navy,  Apr.  1,  1916;  C.  M.  O.  13,  1916,  8. 

Deceased,  late  auxiliary  officer,  while  on  board  the  Solace  disappeared.  Several 
days  later  his  body  was  found  and  disclosed  that  he  had  met  death  by  drowning. 
No  evidence  of  self-destruction  or  suicidal  intent.  Held:  Line  of  duty  and  not  mis- 
conduct. File  26250-774,  Sec.  Navy,  Apr.  27,  1916;  C.  M.  O.  13,  1916,  7. 

Deceased,  while  acting  as  stem  man  on  a  cutter,  fell  overboard  as  a  result  of  a 
fainting  spell.  Autopsy  revealed  weak  heart.  Held:  Line  of  duty  and  not  miscon- 
duct. Fife  26250-779,  Sec.  Navy,  Apr.  20, 1916;  C.  M.  0. 13, 1916,  7. 


338          LINE   OF   DUTY   AND  MISCONDUCT  CONSTRUED. 

Deceased,  an  acting  ship's  cook,  went  to  ship's  side  to  dump  eggshells,  fell  over- 
board, and  was  drowned.  Evidence  showed  that  life  line  had  been  left  down.  Held: 
Line  of  duty  and  not  misconduct.  File  26250-796,  Sec.  Navy,  May  26, 1916;  C.  M.  0. 17, 
1916,  10. 

27.  Same— Entering  boat  on  duty— Deceased  on  duty  ashore  as  member  of  firing  party 

slipped  as  he  was  entering  the  steamer  and  went  overboard.  Held:  Line  of  duty 
and  not  misconduct.  File  26250-613,  Sec.  Navy,  Dec.  15,  1914,  Bd.  of  Inquest;  C. 
M.  O.  6,  1915,  12. 

28.  Same— Field  maneuvers— Deceased  while  on  duty  during  field  maneuvers,  attempted 

to  swim  across  a  small  inlet  in  field  uniform  with  rifle  slung  across  shouMer  and 
wearing  cartridge  belt.  Held:  Line  of  duty  and  not  misconduct.  File  26250-052, 
Sec.  Navy,  Mar*  22,  1915;  Ct.  Inq.  Rec.  No.  6183;  C.  M.  O.  12,  1915,  9. 

29.  Same — Liberty— Collision  of  merchant  ships— Deceased  while  on  leave  of  absence  took 

passage  on  a  steamship  which  sank  at  sea  and  he  was  not  reported  among  the  survivors. 
Originally  the  department  held  that  there  was  no  presumption  of  death  (File  7657-227, 
Sec.  Navy,  Apr.  9, 1914),  but  at  this  date,  one  year  and  two  months  after  steamship 
sank,  the  department  declared  him  dead  from  the  date  the  steamship  sank.  Held: 
Not  line  of  duty  but  not  misconduct.  File  7657-227,  Sec.  Navy,  Apr.  10, 1915;  C.  M.  O. 
16, 1915,  5. 

Deceased  fell  overboard  from  a  shore  boat  while  returning  to  his  ship  from  author- 
ized liberty.  Deceased  was  sober  at  the  time  and  his  death  was  found  due  to  acci- 
dental drowning.  Held:  Not  line  of  duty  and  not  misconduct.  File  26250-789,  Sec. 
Navy,  May  5,  1916;  C.  M.  0. 17,  1916,  10. 

30.  Same — Liberty — From  hospital— Deceased  found  in  water  near  shore  alive  but  died 

shortly  after  being  removed  from  water;  was  on  authorized  liberty  from  hospital 
where  he  had  been  surveyed  for  blindness  in  one  eye  resulting  from  syphilis  (origin 
not  in  line  of  duty);  no  evidence  of  intoxication.  Held:  Not  line  of  duty  but  not 
misconduct.  File  26250-618,  Sec.  of  Navy,  Jan.  19, 1915,  Bd.  of  Inquest;  C.  M.  O.  6, 
1915  13. 

Liberty  for  the  express  purpose  of  swimming.  Held:  Line  of  duty  and  not  miscon- 
duct. File  26543-151:8,  Sec.  Navy,  Nov.  4,  1916.  See  also  LINE  OF  DUTY  AND  MIS- 
CONDUCT CONSTRUED,  58,  60. 

31.  Same — Liberty— Intoxicated — Deceased  having  returned  from  liberty  intoxicated 

made  an  unprovoked  assault  upon  the  petty  officer  having  the  day's  duty,  who 
placed  his  hand  over  deceased's  mouth  to  stop  him  from  using  boisterous  language; 
deceased  struck  petty  officer  and  then  rushed  him  and  both  went  overboard;  petty 
officer  was  rescued  but  deceased  failed  to  come  to  surface.  Held:  Not  line  of  duty 
and  misconduct.  File  26250-617,  Sec.  Navy,  Jan.  15, 1915;  Ct.  of  Inq.  Rec.  No.  6122; 
C.  M.  O.  6,  1915,  13. 

32.  Same — Liberty — Intoxicated— Deceased  while  on  authorized  liberty  was  seen  intoxi- 

cated on  wharf  waiting  for  boat  to  return  him  to  his  station  and  shortly  after  was  heard 
yelling  for  help  and  seen  struggling  in  the  river.  An  old  cut  on  deceased's  head  was 
opened  up  by  fall.  Held:  Not  line  of  duty  and  misconduct.  File  26250-612,  Sec. 
Navy,  Dec.  12,  1914,  Bd.  of  Inquest;  C.  M.  O.  6,  1915, 13. 

33.  Same — Liberty— Intoxicated — Deceased  and  another  enlisted  man  went  boating  in 

the  wherry  of  their  ship;  upon  returning  the  deceased  fell  overboard;  both  intoxicated. 
Held:  Not  line  of  duty  and  misconduct.  File  26250-625,  Sec.  Navy.  Jan.  25,  1915. 
Bd.  of  Inquest;  C.  M.  O.  6,  1915, 13. 

34.  Same — Liberty— Intoxicated — Deceased  with  permission  went  canoeing  in  a  canoe 

owned  by  the  post  exchange  for  use  of  enlisted  men;  became  intoxicated;  canoe  cap- 
sized; calm  night;  deceased  not  good  swimmer;  excellent  record.  Held:  Not  line  of 
duty  and  misconduct.  File  7657-266:2,  Sec.  Navy,  Jan.  8,  1915,  Bd.  of  Inquest; 
C.  M.  O.  6, 1915,  13. 

35.  Same — Liberty— Intoxicated — Deceased  while  on  authorized  liberty  was  drowned  by 

the  capsizing  of  canoe  in  which  he  was  returning  to  station;  death  due  to  his  careless- 
ness and  inebriety.  On  December  11, 1914,  department  held  that  since  body  was  not 
found  there  was  insufficient  evidence  to  warrant  conclusion  of  death;  body  found  on 
February  17,  1915.  Held:  Not  line  of  duty  and  misconduct.  File  7657-266:4,  Sec. 
Navy,  March  2, 1915,  Ct.  Inq.  Rec.  No.  6114;  C.  M.  O.  12,  1915,  9. 

36.  Same — Liberty — Intoxicated— Deceased  while  on  authorized  liberty  became  intoxi- 

cated; resisted  being  placed  on  tug  which  would  return  him  to  station  and  duty  and 
was  placed  on  board  by  force;  became  subdued  and  apparently  went  to  sleep;  jumped 
overboard  with  apparent  intention  of  returning  to  beach,  and  drowned.  Held:  Not 
line  of  duty  and  misconduct.  File  26250-658,  Sec.  Navy,  Apr.  10,  1915,  Bd.  of  In- 
quest, C.  M.  O.  16,  1915,  6. 


LINE   OF   DUTY   AND   MISCONDUCT  CONSTRUED.          339 

37.  Same — Liberty — Intoxicated — Deceased,  returning  from  liberty  in  a  private  boat; 

intoxicated;  attempted  to  jump  from  boat  to  dock  and  fell  in  water.  Held:  Not  line 
of  duty  and  misconduct.  File  2625O-663,  Sec.  Navy,  May  22,  1915;  Bd.  Inquest  No. 
6230;  C.  M.  O.  20.  1915,  7. 

38.  Same — Liberty — Violated  orders — Deceased  having  permission  to  go  on  liberty,  went 

boating  in  private  boat  without  first  obtaining  the  necessary  express  permission  and 
pass,  as  required  by  orders  of  post;  boat  capsized.  Held:  Not  line  of  duty  and  miscon- 
duct. File  26250-525,  Sec.  Navy,  Mar.  21, 1914;  Ct.  of  Inq.  Rec.  No.  5934;  C.  M.  0. 10, 
1915, 9. 

39.  Same — Ship's  wherry  on  duty — Three  deceased  were  in  ship's  wherry  on  duty;  when 

wherry  about  6  to  20  feet  astern  of  ship  which  had  a  little  more  than  steerageway, 
engines  were  backed  *  speed;  wherry  and  men  carried  into  swirl  and  sucked  under. 
Held:  Line  of  duty  and  not  misconduct.  File  26250-641,  Sec.  Navy,  March  24,  1915; 
Ct.  Inq.  Rec.  No.  6186;  C.  M.  O.  12, 1915,  9. 

40.  Same — Swimming  party — Deceased  while  attempting  to  qualify  in  swimming  in  ac- 

cordance with  a  fleet  order,  by  swimming  from  the  boom  to  the  gangway  of  his  ship, 
was  drowned.  Held:  Line  of  duty  and  not  misconduct.  File  26250-541,  Sec.  Navy, 
Mar.  27,  1914;  Bd.  of  Invest.  Rec.  No.  5943;  C.  M.  O.  10, 1915,  8. 

41.  Same — Swimming  party — Deceased,  while  a  member  of  a  regularly  detailed  swimming 

Sarty  in  charge  of  an  officer,  was  drowned.    File  26250-632,  Sec.  Navy,  March  1, 1915; 
t.  Inq.  Rec.  No.  6162;  C.  M.  O.  12,  1915,  9. 

42.  Same — Venereal  restricted  list — Deceased  while  on  venereal  restricted  list  was  found 

floating  in  water  near  his  ship  with  life  preserver  around  him;  nothing  to  show  how 
he  happened  to  be  in  -water.  Not  entitled  to  liberty.  Held:  Not  line  of  duty  and 
misconduct.  File  26250-627,  Sec.  Navy,  Feb.  3,  1915,  Bd.  of  Inquest;  C.  M.  O.  10, 
1915,  8-9. 

43.  Erroneous  conception  of  what  constitutes  "Line  of  Duty"— The  prevailing 

idea  entertained  by  officers  serving  on  boards  of  inquest  seems  to  be  that  in  all  cases 
where  the  death  of  a  person  in  the  service  was  not  the  result  of  his  own  misconduct 
it  must  be  held  to  have  occurred  in  the  line  of  duty.  Thus,  in  three  cases  recently 
considered  by  the  department,  it  appeared  that  the  deceased  men.  while  on  leave  of 
absence,  had  gone  to  a  hotel  together,  engaged  a  room,  and  were  later  found  asphyxi- 
ated as  the  result  of  a  gas  jet  in  the  room  having  been  left  turned  on  and  unlighted 
when  they  retired.  Granting,  in  such  cases,  that  death  was  accidental  and  was  not 
caused  by  any  fault  of  the  deceased,  it  is  nevertheless  difficult  to  perceive  in  what 
manner  the  board  arrived  at  the  conclusion,  as  it  did,  that  their  deaths  were  due  to 
an  act  of  duty.  (File  26250-238,  239,  and  240.)  These  cases  do  not  materially  differ 
from  another  of  recent  occurrence,  in  which  the  deceased,  while  on  leave  of  absence 
and  not  performing  any  act  even  remotely  connected  with  the  service,  was  run  over 
by  a  train,  and  the  board  of  inquest  found  that  his  death  was  due  to  an  act  of  duty. 
(File  26250-228.)  In  another  case,  the  deceased,  while  on  liberty  in  Cherbourg,  France, 
was  murdered  by  a  shipmate  in  consequence  of  some  difficulty  between  the  two  men 
of  a  wholly  personal  nature.  Here,  again,  the  board  of  inquest  held  that  the  death 
was  due  to  an  act  of  duty.  (File  26250-214.)  Many  other  cases  of  like  character  might 
be  cited,  in  all  of  which  the  department  found  it  necessary  to  disapprove  the  finding 
of  the  board  of  inquest,  for  the  reason  that  there  was  nothing  in  the  evidence  to  warrant 
the  conclusion  that  death  was  the  result  of  an  act  of  duty. 

As  remarked  by  the  Attorney  General  in  an  opinion  rendered  May  17, 1855,  the  law 
"does  not  say  'any  disease  (or  injury]  not  the  consequence  of  misconduct,'  and  if 
that  had  been  the  category  contemplated  by  the  legislator  he  would  have  propounded 
it  in  simple  and  apt  phraseology."  It  follows,  therefore,  that  the  words  "line  of 
duty"  can  not  properly  be  held  to  embrace  every  cause  of  death  not  due  to  the  mis- 
conduct of  the  deceased,  but  are  used  by  Congress  in  a  more  limited  sense  in  its  various 
enactments  relating  to  the  disability  or  death  of  persons  in  the  Army  or  Navy.  This 
conclusion  is  further  supported  by  the  fact  that  the  law  providing  for  the  allowance  of 
six  months'  pay  to  the  widow  or  designated  beneficiary  of  deceased  officers  or  enlisted 
men  of  the  Navy  originally  applied  by  its  terms  to  cases  where  the  death  was  due 
to  "wounds  or  disease  contracted  in  line  of  duty";  but  by  act  of  August  22,  1912. 
(37  Stat.  328),  Congress  substituted  the  words  "not  the  result  of  his  own  misconduct" 
for  the  words  "contracted  in  the  line  of  duty,"  this  amendment  being  made  for  the 
express  purpose  of  giving  the  law  a  broader  application.  (43  Cong.  Rec.  2688.) 

44.  Exercising.   See  File  26250-89.    See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED, 

7,  8,  9, 16,  25,  40,  41,  52,  57,  58,  60. 


340          LINE   OF  DUTY   AND   MISCONDUCT   CONSTRUED. 

45.  Explosion — Deceased  met  death  as  a  result  of  an  explosion  caused  by  his  entering  a 

coal  bunker  and  striking  a  match.  Held,  Not  line  of  duty  and  misconduct.  See 
LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED.  71,  But  see  File  26250-746. 

Explosions  on  board  the  submarine  E-2.  Held:  Line  of  duty  and  not  misconduct. 
File  26283-988,  26250-750,  26250-751,  Sec.  Navy,  Feb.  17,  1916. 

46.  Same — Boiler  explosion.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  6. 

47.  Same — Explosion  of  gasoline  while  cleaning  bilges.    See  LINE  OF  DUTY  AND  MISCON- 

DUCT CONSTRUED,  111. 

48.  Falling  from  mainmast — Deceased  was  sent  up  mainmast  to  tar  down  topgallant 

stay.  Upon  attempting  to  enter  boatswain's  chair  he  apparently  lost  his  head  and 
fell  to  deck.  Prior  to  going  up  he  made  no  objection  and  weather  was  favorable. 
Held:  Line  of  duty  and  not  misconduct.  File  26250-615,  Sec.  Navy,  Dec.  23.  1914; 
Ct.  of  Inq.  Rec.  No.  6111;  C.  M.  O.  6,  1915,  12. 

49.  Falling  and  injuring  knee— Wnile  sweeping  down  deck  under  orders  a  sweeper  was 

accidentally  tripped  and  thrown  to  deck  by  being  bumped  by  another  sweeper  and 
knee  was  permanently  injured,  necessitating  his  discharge  from  the  service;  no  sky- 
larking. Held:  Line  of  duty.  File  26283-829,  Sec.  Navy,  Jan.  19, 1915;  Bd.  of  Invest. 
Rec.  No.  6127;  C.  M.  O.  6,  1915,  12. 

50.  Falling  Into  drydock— Deceased  while  walking  on  deck  of  his  ship  which  was  in 

drydock  stumbled  on  some  hose,  fell  backward  under  upper  life  line  and  over  ship's 
side  into  drydock.  Lower  two  life  lines  had  been  unrigged  to  facilitate  work.  Held: 
Line  of  duty  and  not  misconduct.  File  26250-611:  2,  Sec.  Navy,  Jan.  4, 1915;  Ct.  of 
Inq.  Rec.  No.  6094;  C.  M.  O.  6,  1915, 12. 

51.  Foot  crushed— A  bowman  in  sailing  launch  lost  his  right  foot  by  having  it  caught 

in  bow  painter  of  his  launch,  a  heavy  swell  causing  painter  to  suddenly  tauten. 
Held:  Line  of  duty.  File  26283-806,  Sec.  Navy,  Nov.  11,  1914;  Bd.  of  Invest.  Rec. 
No.  6086;  C.  M.  O.  6,  1915,  12. 

52.  Football.    File  458-5. 

53.  General  rule— No  general  rule,  each  case  must  be  determined  upon  its  own  facts. 

See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  70. 

54.  Heart  failure— Deceased,  while  seated  in  band  room,  his  regular  station,  dropped  dead. 

Although  there  was  evidence  to  show  that  during  the  preceding  24  hours  the  deceased 
had  slightly  indulged  in  the  use  of  intoxicating  liquor,  an  autopsy  revealed  that  death 
was  due  to  acute  dilation  of  the  heart  resulting  from  pneumonia  contracted  in  line  of 
duty.  Held:  Line  of  duty  and  not  misconduct.  File  26250-780,  Sec.  Navy.  April  14, 
1916:  C.  M.  0. 13, 1916,  8. 

55.  Hernia.    See  SURGICAL  OPERATIONS,  3,  6. 

56.  Horse  play.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 

57.  Horse,  thrown  from— Deceased  officer,  on  duty  in  a  foreign  country,  absent  from 

command  with  permission,  dined  at  hotel  about  2  miles  from  post.  While  re- 
turning, and  riding  a  Government-owned  horse,  the  horse  slipped  and  deceased  fell 
to  pavement,  receiving  injuries  from  which  he  died  shortly  after.  Held:  Not  line  of 
duty  but  not  misconduct.  File  26250-743:4,  J.  A.  G.,  May  6, 1916.  See  also  LINE  OF 
DUTY  AND  MISCONDUCT  CONSTRUED,  25. 

68.  Hunting  with  express  permission— Deceased  met  his  death  without  fault  of  any 
kind  on  his  part,  while  hunting  under  express  permission  to  be  absent  for  that  purpose. 

It  is  held  by  the  Department  of  the  Interior  to  Pension  Cases,  the  War  Department, 
and  has  heretofore  been  held  by  the  Navy  Department,  that  men  killed  while  en- 
gaged in  athletic  sports  or  exercises  encouraged  by  regulations,  meet  their  death  in 
line  of  duty,  although  on  liberty,  where  the  permission  to  be  absent  was  granted  for 
the  express  purpose  of  engaging  to  such  athletic  sports  or  exercises.  (See  9  P.  D.  227;  11 
P.  D.  55.) 

The  Naval  Instructions,  1913,  1-2620,  contains  the  following  provisions:  "The 
commanding  officer  shall  encourage  the  men  to  engage  in  athletics,  fencing,  boxing, 
boating,  and  other  similar  sports  and  exercises.  Gymnastic  outfits  will  be  furnished 
by  the  department  to  vessels  requesting  them.  When  the  weather  and  other  cir- 
cumstances permit,  he  shall  establish  in  the  routine  of  exercises  and  drills  a  regular 
period  for  swimming ,  such  exercise  to  include  every  enlisted  person  on  board,  except 
those  excused  by  the  surgeon." 

The  evidence  in  this  case  shows  that  hunting  is  encouraged  to  the  service  as  an 
athletic  sport  or  exercise  pursuant  to  the  foregoing  regulation,  and  that  some  of  the 
vessels  are  supplied  with  shotguns  and  ammunition  for  hunting  purposes.  Inasmuch 
as  this  department  encourages  athletic  sports  and  exercises  by  explicit  provisions  of 
regulations,  it  can  not  consistently,  at  the  same  time  discourage  such  athletic  sports  and 
exercises  by  holding  that  a  man  who  is  given  express  permission  to  engage  therein, 


LINE    OF  DUTY   AND   MISCONDUCT   CONSTRUED.          341 

and  while  so  doing,  is  killed  without  fault  on  his  part  shall  be  marked  on  the  records 
as  having  met  his  death  "not  in  line  of  duty."  -Also,  in  the  interest  of  uniformity  in 
the  practice  of  the  different  departments  of  the  Government  having  to  decide  the  same 
or  similar  questions,  as  well  as  due  regard  for  precedent,  the  finding  of  "  line  of  duty  " 
in  this  case  should  stand.  Held:  Line  of  duty  and  not  misconduct.  File  26250-510:1, 
J.  A.  G.  March  16, 1914.  Approved  by  Sec.  Nav.  March  16,  1914;  Ct.  Inq.  Req.  No. 
5975.  See  also  Forms  of  Procedure,  1910,  p.  11,  of  corrections  inserted  between  pp.  224 
and  225:  Manual  Med.  Dept.,  U.  S.  N.,  1914,  p.  167;  Army  Bulletin,  No.  14,  April  12, 
1915.  See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  30,  60.  But  see  File 
26250-622:1,  Sec.  Navy,  Feb.  19, 1916;  Ct.  Inq.  Rec.  No.  6140. 

59.  Liberty— Deceased  was  returning  from  authorized  liberty  in  a  ship's  boat.    Culpable 

negligence  of  those  in  charge  of  the  boat  caused  a  collision  which  resulted  in  the  death 
of  the  deceased.  Held:  Line  of  duty  and  not  misconduct.  File  26835-621,  Sec. 
Navy,  Jan.  6,  1917;  Ct.  Inq.  Rec.  See  also  LINE  OF  DUTY  AND  MISCONDUCT  CON- 
STRUED, 83. 

60.  Same — If  a  man  is  given  permission  to  go  on  shore  for  the  express  purpose  of  engaging 

in  athletic  sports  or  exercises  encouraged  by  the  Navy  Regulations,  or  permission 
to  go  swimming  or  boating,  and  is  iojured  or  killed  without  negligence  or  other  act 
the  result  of  his  own  misconduct,  the  finding  should  be  line  of  duty.  Where,  however, 
a  man  is  granted  liberty  for  his  own  purposes,  and  while  on  liberty  goes  in  swimming 
and  is  drowned,  the  mere  fact  that  swimming  is  encouraged  by  the  regulations  is 
not  sufficient  ground  for  holding  that  his  death  occurred  in  line  of  duty.  In  such  a 
case  the  general  rule  applies,  and  it  must  be  held  that  his  death  resulted  from  the  exer- 
cise of  his  private  rights  and  was  not  caused  by  "an  act  of  duty  performed."  (File 
26250-277:1;  14  P.  D.  114).  See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  29-38. 

61.  Same— Assisting  an  injured  shipmate  back  to  ship.    See  LINE  OF  DUTY  AND  MIS- 

CONDUCT CONSTRUED,  82. 

62.  Same— Returning  from.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED.  83. 

63.  Medical  operation — Deceased  was  operated  on  for  enlarged  tonsils,  in  a  naval  hospital, 

local  anesthetic  (cocaine)  being  used;  all  usual  precautions  were  taken  prior  and  during 
operation;  death  caused  by  an  idiosyncrasy  due  to  effects  of  the  anesthetic.  Held: 
Line  of  duty  and  not  misconduct.  File  26283-518,  Sec.  Navy,  Feb.  13,  1913;  Ct.  of 
Inq.  Rec.  No.  5676;  C.  M.  O.  10,  1915,  8. 

64.  Same— Hernia.    See  SURGICAL  OPERATIONS,  3,  6. 

65.  Midshipman — Incurring  disease  or  injury  during  course  at  Naval  Academy.    See 

File  5252-24,  Sec.  Navy,  May  25,  1909. 

66.  Misconduct.    See  MISCONDUCT. 

67.  Motorcycle.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  16. 

68.  Natural  death— Deceased  while  on  authorized  liberty  was  found  dead  in  a  rooming 

house;  board  unable  to  determine  cause  of  death.  Held:  Not  line  of  duty  but  not 
misconduct.  File  26250-607,  Sec.  Navy,  Nov.  20,  1914;  Bd.  of  Inquest  Rec.  No.  6089; 
C.  M.  O.  6, 1915, 13.  See  also  Mpore  v.  U.  S.  (48  Ct.  Cls.  110). 

69.  Same— Deceased,  while  absent  with  leave  from  proper  authority,  died  a  natural  death 

in  a  private  hospital,  from  uremia,  a  complication  of  acute  nephritis  which  was  con- 
tracted in  line  of  duty.  Held:  Line  of  duty  and  not  misconduct.  File  26250-673, 
Sec.  Navy,  May  22, 1915,  Bd.  Inquest;  C.  M.  O.  20, 1915.  7. 

70.  No  general  rule — Each  case  must  be  determined  upon  its  own  facts — As  was  stated 

by  the  Attorney  General  in  an  opinion  rendered  July  22,  1881,  with  respect  to  the 
question  of  what  constitutes  disability  incurred  in  line  of  duty;  "it  is  impossible 
to  lay  down  a  general  rule  which  will  be  applicable  to  cases  of  this  kind ,  or  to  the  differ- 
ent aspects  which  the  *  *  *  claim  might  present,  as  the  facts  shall  be  developed 
by  the  evidence."  The  question  to  be  determined  in  each  case  is  not  what  was  the 
status  of  the  deceased  when  the  disease  was  contracted  or  the  injury  received,  nor 
whether  such  disease  or  injury  was  the  result  of  his  own  misconduct,  but  "  Was  the 
cause  of  disability  or  death  a  cause  within  the  line  of  duty  or  outside  of  it?  Was 
that  cause  appertaining  to,  dependent  upon,_  or  otherwise  necessarily  and  essentially 
connected  with,  duty  within  the  line  or  was  it  unappurtenant,  independent,  and  not 
of  necessary  and  essential  connection?"  In  other  words,  to  constitute  "  line  of  duty," 
"an  act  of  duty  performed  must  have  relation  of  causation,  mediate  or  immediate, 
to  the  wound,  the  casualty,  the  injury,  or  the  disease  producing  disability  or  death." 

71.  On  board  ship  or  at  a  naval  station,  etc. — So,  also,  many  cases  arise  where  the  injury 

causing  death  was  received  while  the  deceased  was  in  a  duty  status,  so  far  as  being 
present  on  board  a  vessel  or  at  a  station  to  which  he  was  attached  is  concerned,  and  yet 
the  circumstances  are  such  that  it  can  not  be  held  to  have  been  caused  by  an  act  of 
duty.  For  example,  in  a  case  where  the  death  of  a  man  resulted  from  injuries  received 


342          LINE   OF  DUTY   AND   MISCONDUCT   CONSTRUED. 

by  him  while  "entering  a  bunker  and  striking  a  match  there,"  which  acts  "were 
both  against  orders,"  the  department  held  that  his  death  was  the  result  of  "mis- 
conductor  violation  of  duty"  on  his  part,  and  was  not,  therefore,  the  result  of  an  injury 
received  in  the  line  of  duty.  (7  Op.  Atty.  Gen.  150;  File  26543-55.)  Again,  it  has 
uniformly  been  held  that  an  enlisted  man  is  not  in  line  of  duty  while  engaged  in 
scuffling  or  squabbling  with  his  companions,  or  voluntarily  engaged  in  v  hat  is  com- 
monly known  as  "horseplay,"  although  at  the  time  on  board  the  ship  to  which  he 
was  attached.  (5  P.  D..  47;  6  P.  D  ,  22;  14  P.  D..  81;  P.  D.,  506;  Rhodes  v.  U.  S.,  79 
Fed.,  740;  File  26250-66.)  And  "it  has  repeatedly  been  held  that  where  the  death 
of  the  soldier  *  *  *  was  caused  by;  an  overdose  of  a  narcotic  or  other  poison, 
which  had  been  either  prescribed  originally  by  a  physician  in  the  U.  8.  service  or 
taken  upon  the  soldier's  own  responsibility  through  mistake  and  with  no  suicidal 
intent,  such  death  cause  can  not  be  accepted  as  a  competent  basis  for  claim."  (1 
P.  D..  Ill;  File  26250-288:2.) 

72.  Operations.   See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  63;  SURGICAL  OPER- 

ATIONS, 3.  6. 

73.  Orders— Violation  of.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71, 107-112. 

74.  Poison — Deceased  by  mistake  took  bichloride  of  mercury.    No  evidence  of  intent 

to  commit  suicide.  Held:  Not  line  of  duty  but  not  misconduct.  File  26250-657, 
Sec.  Navy,  Apr.  10, 1915,  Bd.  of  Inquest;  C.  M.  0. 16, 1915,  5. 

75.  Same— Deceased  while  on  authorized  liberty,  running  from  direction  of  a  dance  hall 

fell  in  street,  was  picked  up  by  enlisted  men,  carried  to  drug  store,  sent  to  hospital 
in  patrol  wagon,  died  en  route;  result  of  chemist's  analysis  of  stomach  showed  carbolic 
acid  poisoning;  no  evidence  of  intent  to  commit  suicide.  Held:  Not  line  of  duty 
but  not  misconduct.  File  26250-605:2,  Sec.  Navy,  Dec.  11.  1914;  Ct.  of  Inq.  Rec. 
No.  6098;  C.  M.  O.  6, 1915, 13. 

Deceased  was  administered  bichloride  of  mercury  by  a  hospital  apprentice  on  duty, 
by  mistake  for  Epsom  salts.  Held:  Line  of  duty  and  not  misconduct.  File  26250- 
593,  Sec.  Navy,  Oct.  8,  1914;  Ct.  Inq.  Rec.  6120;  C.  M.  O.  6,  1915,  12. 

76.  Same— Suicide.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  94,  95,  97. 

77.  Predisposition — Death  or  injury  while  on  duty,  resulting  from  disability  existing  prior 

to  enlistment,  does  not  come  within  the  "line  of  duty"  category.  (16  P.  D.,  172.) 
However,  when  a  disability  which  originated  prior  to  enlistment,  but  was  apparently 
cured  prior  to  and  at  the  date  of  enlistment,  is  revived  and  aggravated  as  the  im- 
mediate result  of  an  accident  or  of  an  incident  in  the  line  of  duty,  the  injurious  conse- 
quences of  such  aggravation  may  amount  to  line  of  duty.  (3  P.  D.,  41.)  In  such  a 
case  it  is  necessary  to  establish  some  cause  or  injury  resulting  from  or  incurred  in 
service  in  line  of  duty  sufficient  to  produce  a  recurrence  of  said  disability — some  cause 
without  which  the  recurrence  would  not  have  happened — and  not  merely  natural 
aggravation  of  an  already  existing  disability.  (3  P.  D.,  187.) 

Predisposition  to  disease  is  no  bar  to  pension  if  the  disease  did  not  develop  until 
after  claimant's  admission  to  the  service.  (3  P.  D.,  228;  16  P.  D.,  413.)  See  File 
7657-116.  J.  A.  G.,  Mar.  1,  1912.  See  also  File  26253-430,  J.  A.  G.,  Oct.  26,  1915. 

78.  Preexisting  cause — An  enlisted  man  was  admitted  to  a  naval  hospital  for  treatment 

with  hccmoptysis  (spitting  of  blood)  14  months  after  he  had  enlisted,  and  a  history 
of  similar  condition  existed  two  years  before  (prior  to  enlistment).  Held:  That  it 
is  considered  that  the  disease  in  question  was  not  incident  to  the  service,  and  also 
held  it  to  be  not  in  line  of  duty.  File  7657-320,  Sec.  Navy,  Oct.  25, 1915;  C.  M.  O.  35, 
1915,  9.  See  also  Moore  v.  U.  S.  (48  Ct.  Cls.  110). 

79.  Presumption  of  death.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  18-21. 

80.  Prisoners— While  a  prisoner  may  be  injured  or  killed  in  line  of  duty,  as  shown  by  the 

examples  given  by  the  Attorney  General  in  his  opinion  (7  Op.,  150),  such  cases  must 
be  exceptional  ones  rather  than  the  rule.  Thus,  where  an  enlisted  man  is  performing 
hard  labor  under  sentence  of  general  court-martial,  and  an  injury  received  by  him  is 
wholly  due  to  execution  of  such  sentence,  it  can  not  be  held  line  of  duty.  (File  26285- 
30,  Sec.  Navy,  Apr.  7, 1909;  File  26543-20,  Sec.  Navy,  Jan.  28, 1909;  15  P.  D..  54;  5  P.  D., 
151 .)  If  an  enlisted  man  is  arrested  or  imprisoned,  but  on  trial  is  adjudged  not  guilty, 
a  disease  incurred  during  his  arrest  and  imprisonment  is  within  the  line  of  duty. 
(4  P.  D.,  103.)  If  the  man  died  while  awaiting  trial,  a  disease  so  contracted  is  held 
to  have  been  incurred  in  line  of  duty.  (14  P.  D.,213.)  But  in  a  case  where  a  private 
in  the  Marine  Corps  was  burned  to  death  while  in  confinement  by  the  civil  authorities, 
t>efore  trial,  and  the  evidence  showed  that  his  imprisonment  was  the  result  of  mis- 
conduct (drunkenness)  while  on  liberty,  his  death  was  held  not  to  have  occurred  in 
the  line  of  duty.  (File  26250-218.) 


LINE   OF  DUTY  AND  MISCONDUCT  CONSTRUED.  343 

81.  Same— Prisoners  injured  while  in  confinement.    File  26262-12673,  A  and  B,  J.  A.  G~, 

July  6,  1912. 

82.  Question  not  one  of  status— The  status  of  an  officer  or  enlisted  man  at  the  time  of 

his  death  or  at  the  time  of  contracting  the  disease,'  or  receiving  the  injury  occasioning 
same,  is  not  controlling  upon  the  question  of  whether  his  death  occurred  in  the  line 
of  duty.  As  pointed  out  by  the  Attorney  General,  a  person  in  the  Navy,  "whilst 
off  duty,  or  on  furlough,  or  under  censure  *  *  *  may  do  or  suffer  tnings  which  are 
in  the  line  of  duty,"  the  same  as,  on  the  other  hand,  "while  on  active  duty,  he  may 
do  or  suffer  things  not  hi  the  line  of  his  duty,"  and  "any  rule  based  on  the  assumption 
of  its  being  impossible  for  an  officer  or  soldier  on  furlough,  on  leave  of  absence,  in 
arrest,  under  sentence,  to  perform  acts,  suffer  casualties,  receive  wounds,  or  incpr 
causes  of  disease  in  the  line  of  his  duty  is  not  a  truth ,  and,  like  all  things  not  true,  can 
not  be  conformable  to  justice  or  wisdom."  And,  again:  "A  soldier  or  sailor,  while 
'under  arrest,  or  'in  confinement,'  is  not  discharged  from  the  obligation  of  duty,  and 
is  occasionally  called  upon  to  perform  duty  in  which  he  may  distinguish  himself  and 
die  honorably,  and  leave,  it  seems  to  me,  a  right  of  pension  to  his  widow  or  children; 
as,  for  example,  in  the  contingency  of  a  post  or  a  camp  attacked  by  the  enemy,  or  a 
ship  in  peril  at  sea.  So,  still  more,  of  an  officer  on  furlough.  So  it  may  be  in  the  case 
of  a  soldier  temporarily  'absent  on  leave,'  nay,  even  of  one  compromised  to  some 
grave  military  offense." 

It  has  accordingly  been  held  by  the  department  hi  the  case  of  a  man  who  was 
stabbed  while  on  liberty  that  his  injuries  were  incurred  in  line  of  duty,  it  appearing 
that  he  was  "stabbed  by  a  drunken  cabman  while  endeavoring  to  get  an  injured 
shipmate  back  to  his  vessel,  an  act  in  the  line  of  his  duty  performed  while  on  liberty." 
File  9331,  Sec.  Navy,  Apr.  10,  1908.  See  also  File  26250-777:3. 

Ordinarily,  however,  the  injury  or  death  of  a  person  in  the  Navy  while  on  leave  or 
liberty  is  not  the  result  of  an  act  of  duty.  In  such  cases  he  is  usually  in  the  exercise 
of  his  private  rights  or  the  performance  of  private  duties,  and  his  injury  or  death, 
while  coincident  with  the  service  to  point  of  time,  can  not  be  held  to  have  been  caused 
by  the  service.  "All  the  consequences  of  the  absence  of  an  officer  or  a  soldier  from  his 
post  of  duty  on  his  own  motion  for  his  own  purposes  of  business  or  pleasure  must  be 
regarded  as" outside  the  line  of  duty.  While  traveling  from  and  returning  to  the  post 
of  duty  on  an  ordinary  furlough,  given  for  such  purposes,  he  is  at  his  own  risk  as  to 
causes  of  disability  to  which  he  may  be  subjected."  (4P.D.,  54;  7  P.  D.,  102;  16  P.  D., 
21;  House  Doc.  No.  5,  54th  Cong.,  2d  sess.,  p.  74.)  Surrounding  circumstances,  how- 
ever, may  work  a  modification  of  this  rule,  as  to  the  example  cited  above. 

83.  Returning  from  liberty — When  a  person  returning  from  leave  or  liberty,  and  prior 

to  expiration  thereof,  enters  a  boat  provided  by  the  Government  for  his  transporta- 
tion back  to  his  vessel,  he  is  once  more  within  the  control  of  the  naval  authorities, 
and  if  killed  or  injured  without  the  intervention  of  any  act  the  result  of  his  own  mis- 
conduct, a  finding  of  line  of  duty  would  be  proper.  But  if  he  is  returning  to  his  vessel 
to  a  private  conveyance  of  his  own  selection,  he  would  not  be  to  a  line  of  duty  status, 
unless  actually  engaged  to  the  performance  of  an  act  of  duty. 

84.  Self-inflicted  wound.    File  9542,  Sec.  Navy,  Mar.  14, 1908.    See  also  LINE  OF  DUTY 

AND  MISCONDUCT  CONSTRUED,  89,  99. 

85.  Shooting— Deceased  was  killed  by  the  accidental  discharge  of  a  TJ.  S.  Springfield 

rifle  to  the  hands  of  another  enlisted  man  who  was  on  duty  as  guard  over  a  prisoner. 
Held:  Line  of  duty  and  not  misconduct.  File  26250-530,  Sec.  Navy,  Mar.  13,  1914; 
Ct.  of  Inq.  Rec.  No.  5961 :  C.  M'.  0. 10, 1915,  8.  See  also  File  26251-9021. 

86.  Same — Deceased  was  a  member  of  a  patrol  on  duty  to  Vera  Cruz,  Mexico,  during  recent 

occupation.  A  member  of  another  friendly  patrol  fired  and  fatally  wounded  deceased 
under  the  belief  that  he  was  firing  at  the  enemy.  Held:  Line  of  duty  and  not  mis- 
conduct. File  26250-556,  Sec.  Navy,  June  6, 1914;  Ct.  of  Inq.  Rec.  No.  5980;  C.  M.  O. 
10,  1915,  8. 

87.  Speeding  In  automobile— A  deceased  naval  officer  met  his  death  while  driving  his 

automobile  at  night  over  the  public  roads  at  the  excessive  speed  of  about  65  miles 
an  hour  to  a  pleasure  race  with  the  driver  of  another  automobile.  Held:  "That  this 
dangerous  and  reckless  speed  was  the  direct  and  proximate  cause  of  his  death,  and 
that  his  death  was  not  to  the  line  of  duty  and  was  due  to  his  own  misconduct."  File 
26543-144,  Sec.  Navy,  Oct.  27,  1915;  C.  M.  O.  35,  1915,  9. 

88.  Strangulation— Deceased,  while  engaged  in  duty  on  board  ship,  fell  into  a  drum 

room  to  such  a  position  that  he  was  unable  to  release  himself.  As  a  result  and  to 
the  absence  of  t'mely  aid  the  deceased  was  strangled  to  death.  Evidence  showed 
falling  to  be  accidental.  Held:  Line  of  duty  and  not  misconduct.  File  26250-778, 
Sec.  Navy,  Apr.  21,  1916;  C.  M.  0. 13, 1916,  8. 


344          LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED. 

89.  Suicide — Not  even  in  the  case  of  death  by  suicide  can  it  be  stated  as  an  unalterable 

rule  that  it  was  not  due  to  an  act  of  duty.  Suicide  is,  however,  so  unlikely  a  result 
of  an  act  of  duty  that  the  presumption  in  such  cases  must  be  against  line  of  duty  in 
the  absence  of  evidence  affirmatively  showing  that  it  was  caused  by  the  service. 
(File  26250-230:3.)  This  is  in  accordance  with  the  Attorney  General's  opinion  of 
May  17, 1855,  in  which  it  is  stated  that  "if  the  suicide  is  alleged  to  have  been  produced 
by  insanity,  and  thus  insanity  be  put  forward  as  the  causa  causans,  then  it  must 
be  shown  that  the  insanity  was  the  result  of,  or  incidental  to,  acts  of  duty."  So, 
also,  in  the  case  of  Rhodes  v.  United  States  (79  Fed.  Stat.,  740)  it  will  be  noted  that 
the  court  refers  to  "a  wound  or  injury  inflicted  upon  himself  by  a  soldier"  as  one  of 
the  cases  where  the  injury  does  not  result  from  the  service,  although  coincident  with 
it  in  time.  Nevertheless,  in  a  proper  case,  death  by  suicide  may  be  held  to  have 
occurred  in  the  line  of  duty,  but  the  facts  supporting  such  a  conclusion  must  be 
definitely  ascertained  and  established.  (File  26250-86;  1  P.  D.,  Ill;  1  P.  D.,  108; 
5  P.  D.,  32;  17  P.  D.,  50.  See  also  File  26250-132.) 

90.  Same— Nostalgia  caused  midshipman  to  commit  suicide.    Held:  Not  line  of  duty  and 

misconduct.    File  26250-812. 

91.  Same — Deceased  on  expeditionary  duty  in  Haiti  died  from  a  self-inflicted  gunshot 

wound.  Brooded  and  worried  over  being  on  tropical  duty.  Held:  Line  of  duty 
and  not  misconduct.  File  26250^864,  Sec.  Navy,  Dec.  28,  1916. 

D2.  Same — Deceased  while  on  authorized  liberty  died  by  reason  of  self-inflicted  gunshot 
wound  while  in  the  room  of  a  prostitute.  Held:  Not  line  of  duty  and  due  to  hia  own 
misconduct.  File  26250-753,  Sec.  Navy,  Feb.  5,  1916. 

93.  Same— Death  pact.    Held:  Not  line  of  duty  and  misconduct.    File  26250-529. 

94.  Same— Cocaine.    Held:  Not  line  of  duty  and  misconduct.    File  26250-514. 
$5.  Same— Hair  tonic.    Held:  Not  line  of  duty  and  misconduct.    File  26250-490. 

•96.  Same— In  the  case  of  an  officer  who  committed  suicide  his  death  was  held  to  be  in  line 
of  duty  and  not  due  to  his  own  misconduct,  since  it  was  affirmatively  shown  that  hia 
act  was  due  to  insanity  caused  by  acts  of  duty.  File  26250-567,  Sec.  Navy,  Aug.  5, 
1914;  Ct.  Inq.  Rec.  6028. 

"97.  Same— Deceased  while  ashore  and  absent  over  leave  swallowed  carbolic  acid  with 
intent  to  commit  suicide.  Held:  Not  line  of  duty  and  misconduct.  File  26250-623, 
Sec.  Navy,  Jan.  23, 1915,  Bd.  of  Inquest;  C.  M.  0. 6,  1915, 14. 

98.  Same— Deceased  committed  suicide  by  stabbing  while  intoxicated;  was  addicted  to 

use  of  cocaine.  Held:  Not  line  of  duty  and  misconduct.  File  26250-610,  Sec.  Navy, 
Dec.  4,  1914,  Bd.  of  Inquest;  C.  M.  O.  6, 1915,  13. 

99.  Same— Deceased,  while  absent  without  authority,  committed  suicide  by  shooting. 

Held:  Not  line  of  duty  and  misconduct.  File  26250-634,  Sec.  Navy,  Mar.  1,  1915, 
Bd.  Inquest;  C.  M.  0. 12, 1915,  9.  See  also  File  26250-636. 

100.  Same— While  on  furlough.    Held:  Not  line  of  duty  and  misconduct.    File  26543-90, 

J.  A.  G.,  Jan.  24,  1913.    See  also  File  26543-89,  Sec.  Navy,  Jan.  6,  1913. 

101.  Skylarking.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  49,71. 

102.  Surgical  operations.    See  SURGICAL  OPERATIONS,  3,  6. 

103.  Swimming.    File  2195-63,  J.  A.  G.,  June  7,  1907.    See  also  LINE  OF  DUTY  AND  MIS- 

CONDUCT CONSTRUED,  25-28,  40,  41,  60. 

104.  Trespassing— Deceased  while  on  authorized  liberty  trespassed  on  a  transmitting 

high  tension  power  tower,  received  an  electric  shock,  and  fell  60  feet  to  ground.  Held: 
Not  line  of  duty  and  misconduct.  File  26250-528,  Sec.  Navy,  Mar.  16,  1914;  Ct.  of 
Inq,  Rec.  No.  5941;  C.  M.  0. 10,  1915,  9. 

Deceased  was  struck  by  train  while  a  trespasser  on  railroad  tracks  in  violation 
of  definite  law  and  sign  boards.  Held:  Not  line  of  duty  and  misconduct.  File 
26250-788,  June  6,  1916;  C.  M.  0. 17,  1916, 10. 

105.  Same— Deceased  while  intoxicated  and  on  authorized  liberty  was  run  over  by  an 

electric  car  at  night  while  lying  across  the  tracks.  Held:  Not  line  of  duty  and  mis- 
conduct. File  26250-535,  Sec.  Navy,  Mar.  25, 1914,  Bd.  of  Inquest  ;C.  M.  0. 10, 1915,  9. 

106.  Turret— Crushed  by.   See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  17. 

107.  Violation  ol  orders— Deceased  while  on  duty  C9aling  ship  repeatedly  disregarded 

the  warnings  of  his  immediate  superiors  by  riding  around  on  a  revolving  vertical 
coaling  drum;  his  legs  caught  and  he  was  carried  around  several  times,  his  head 
striking  a  hatch  and  stanchion.  Held:  Not  line  of  duty  and  misconduct.  File 
26250-518,  Sec.  Navy,  Apr.  6, 1911;  Ct.  of  Inq.  Rec.  No.  5945;  C.  M.  0. 10, 1915,  9. 


LINE   OF   DUTY  AND   MISCONDUCT   CONSTRUED.  345 

108.  Same— Striking  match  in  bunker.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED, 

71. 

109.  Same— Carrying  naked  light  while  cleaning  bilges.    See  LINE  OF  DUTY  AND  MIS- 

CONDUCT CONSTRUED,  111. 

110.  Same-^Deceased  had  been  drinking,  but  was  not  intoxicated.    Returned  to  camp 

from  liberty  along  railroad  tracks  which  was  in  violation  of  post  regulations.  Held: 
Not  line  of  duty  and  misconduct.  File  26250-328. 

111.  Same — Deceased,  while  on  duty  cleaning  bilges  in  flreroom,  carried  an  electric 

portable  without  steam-tight  globe  as  required  by  Naval  Instructions  (Naval  In- 
structions, 1913,  1-3377  (3)),  which  broke,  igniting  fumes  of  gasoline  carried  in  open 
cans,  was  burned;  use  of  gasoline  in  open  cans  was  authorized  by  chief  engineer  (an 
ensign)  and  work  was  in  immediate  charge  of  a  chief  water  tender  who  did  not  forbid 
the  use  of  the  gasoline  in  open  cans  or  the  naked  light.  Held:  Line  of  duty  and  not 
misconduct.  File  26250-619,  Sec.  Navy,  Feb.,  1915;  Ct.  Inq.  Rec.  No.  6139,  6151. 
Seealso  File  26250-746:1,  J.  A.  G.,  Feb.  17, 1916. 

112.  Same— Boating  in  violation  of  orders.    See  LINE  OF  DUTY  AND  MISCONDUCT  CON- 

STRUED, 38. 

LITIGATION  PENDING.    C.  M.  O.  6,  1915,  8.    See  also  CIVIL  COURTS,  2. 

LITIGATION  IN  CIVIL  COURTS. 

1.  Policy  of  Department.    See  CIVIL  COURTS,  7. 

LLOYDS,  BOARD  OF  SURVEY. 

1.  Naval  officer — Acting  as  member  of.    See  MERCHANT  VESSELS,  4. 

LOAN. 

1.  Loaning  money  is  not  trading  within  meaning  of  R-1509  (2).  C.  M.  O.  21, 
1910,  6-7.  Seealso  BORROWING  MONEY;  1;  LENDING  MONEY. 

LOBBYING. 

1.  Contract— "The  general  principle  is  well  settled  that  all  contracts  which  call  for  what 
are  commonly  known  as  'lobbying'  services,  are  contrary  to  public  policy,  and  there- 
fore void.  Furthermore,  even  wnere  the  contracts  specifically  call  for  only  'pro- 
fessional' or  'proper'  services  by  counsel  in  procuring  enactment  of  legislation,  they 
are  held  by  the  courts  to  be  void  where  the  compensation  for  such  services  is  contingent 
upon  their  success."  (See  15  A.  &  E.  Enc.  Law,  970-971.)  File  17789-12:1,  J.  A.  G., 
Feb.  25, 1910,  p.  4.  See  also  File  28091-5,  Aug.,  1911;  DEBTS,  18;  CLAIMS,  5;  LEGISLA- 
TION, 1,  2. 

LODGE. 

1.  Medical  officer — Signing  death  certificate,  etc.    See  MEDICAL  RECORDS,  5. 

LONGEVITY. 

1.  Naval  Academy  service— Counts  for  Marine  officer— Service  in  the  Naval  Academy 

as  midshipman  will  count  as  longevity  in  subsequent  service  as  commissioned  officer 
of  tne  Marine  Corps.  File  1326-335,  J.  A.  G.,  June  6, 1911.  See  also  File  26521-148, 
J.  A.  G.,  Aug.  24,  1916,  p.  4. 

2.  Same— For  the  purpose  of  longevity  pay,  cadet  midshipmen  pursuing  their  studies 

at  the  Naval  Academy  during  and  since  the  Civil  War  were  and  are  considered  officers 
of  the  Navy.  File  19245-43,  J.  A.  G.,  Mar.  7,  1912. 

3.  Pay — A  naval  officer  is  entitled  in  the  computation  of  his  longevity  to  credit  for  service 

as  a  midshipman  at  the  Naval  Academy.  File  26255-95:1,  J.  A.  G.,  Apr.  6,  1910. 
Seealso  CONSTRUCTIVE  SERVICE,  1. 

LOSS  OF  NUMBERS.    See  also  NUMBERS,  Loss  OF. 

1.  Additional  numbers — Court-martial  sentence.    See  ADDITIONAL  NUMBERS,  2. 

2.  Promotion— Officers  failing  in.    See  PROMOTION,  102,  135,  137,  138,  139, 155, 175, 186, 

194-196, 199-203,  207. 

3.  Same— Effect  upon  promotion  of  officer,  not  promoted  to  fill  a  vacancy.    See  PRO- 

MOTION, 102. 

4.  Same— Suspension  from  promotion— Administrative  officers  determine  the  manner 

the  loss'of  numbers  shall  be  executed.    C.  M.  O.  42,  1915,  12. 

5.  Sentence— Of  general  court-martial.   See  NUMBERS,  Loss  OF. 


346  MALICE. 

LOSS  OF  PAY. 

1.  Remitted.    See  ALLOTMENTS,  6,  7;  CLEMENCY,  39.  53;  PAY,  23. 

2.  Sentence— Court-martial.    See  PAY,  28, 98-110. 

LOSS  OF  RECORDS.    See  RECORD  OF  PROCEEDINGS,  70;  SUMMARY  COURT-MARTIAL,  45. 
"LUDICROUSLY  INADEQUATE  SENTENCE."    See  ADEQUATE  SENTENCES,  11. 
LUNATICS.    See  INSANITY,  9. 

LYING.    See  also  DECEIT;  FALSE  STATEMENTS;  FALSEHOOD. 
1.  Officer.    See  File  26262-2248. 

MACHINISTS  AND  CHIEF  MACHINISTS. 

1.  Command— Not  eligible  for.    See  COMMAND,  9, 10, 11,  21. 

2.  Promotion  of— By  the  act  of  March  3,  1909  (35  Stat.  771),  the  title  of  warrant  machin- 

ist was  charfged  to  machinist  and  provision  was  made  for  promotion  and  commission 
of  chief  machinist  after  6  years'  service  from  date  of  warrant,  to  rank  with  but  after 
ensign.  File  17789-15,  J.  A.  G.,  Dec.  13, 1909. 

MAIL. 

1.  Clerks.    See  MAIL  CLERKS. 

2.  Delay— Of  mail  reaching  Office  of  Judge  Advocate  General  from  secretary's  office.    File 

26524-166:1,  J.  A.  G.,  Aug.  10,  1915. 

3.  Opening — Enlisted   man   tried  by  general  court-martial  for  opening  mail  without 

authority.    C.  M.  O.  6, 1915,  3. 

4.  Prisoners'  mail.    See  PRISONERS,  24. 

MAIL  CLERKS. 

1.  Compensation— Navy  mail  clerks,  Reserve  Destroyer  Flotilla,  Atlantic  Fleet.    File 

26254-1921,  J.  A.  G..  Dec.  22, 1915;  26254-1921.  J.  A.  G.,.Feb.  10, 1916. 

2.  Marine  Corps— Detail  for.    File  26254-1961,  J.  A.  G.,  Feb.  12, 1916. 

3.  Oaths.    File  3980-1185,  J.  A.  G.,  Jan.  15, 1916. 

4.  Trial  by  general  court-martial— Navy  mail  clerks  should  be  tried  by  the  authority, 

civil  or  naval,  first  acquiring  jurisdiction.    File  7538-04,  Sec.  Navy,  Oct.  4, 1909. 

5.  Same— The  irregularities  of  a  Navy  mail  clerk  resulted  in  loss  of  Government  funds 

from  post  office  on  board  ship.  Court  of  inquiry  recommended  trial  by  general  court- 
martial  if  the  naval  authorities  possessed  jurisdiction,  and  he  was  subsequently  tried 
by  general  court-martial.  Ct.  Inq.  Rec.  5698,  Feb.  27, 1913;  File  26283-524:1. 

MAINMAST,  FALLING  FROM. 

1.  Enlisted  man — Killed.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  48. 

MAJOR-GENERAL  COMMANDANT.    See  MARINE  CORPS,  47-50. 

MAKING  A  FALSE  AND  FRAUDULENT  RETURN. 

1.  Officer— Charged  with.    C.  M.  O.  203, 1902. 

MAKING  AND  USING  FALSE  PAPERS  IN  VIOLATION  OF  A.  G.  N.  14,  ETC. 

1.  Officer— Charged  with.    C.  M.  0. 88, 1895. 

MAKING  FALSE  AND  FRAUDULENT  OFFICIAL  REPORTS. 

„  1.  Officers— Charged  with.    C.  M.  O.  129,  1898;   18,  1907.    See  also  C.  M.  O.  7,  1894;  74, 
1894;  G.  C.  M.  Rec.,  16956. 

"MAKING  GOOD"  TIME  BY  ENLISTED  MEN.    See  ENLISTMENTS,  11;  MARINE 
CORPS,  30. 

MALICE. 

1.  Absence  of— Requisite  in  crime  of  manslaughter.    C.  M.  O.,  12,  1911,  6-8;  23,  1911, 

2-12.    See  also  MANSLAUGHTER,  12. 13;  MURDER,  19. 

2.  Definition— The  word  "malice"  in  law  has  a  different  signification  from  the  popular 

meaning.  In  its  legal  sense  it  means  a  wrongful  act  done  intentionally,  without  just 
cause  or  excuse.  (See  Words  and  Phrases,  etc.,  v.  5,  p.  4298,  with  numerous  au- 
thorities.) Thus  in  United  States  v .  Reed  (86  Fed.  Rep.  308, 312)  it  is  said: 

"By  'malice'  is  not  necessarily  meant  in  the  law  a  malignant  spirit,  a  malignant 
intention  to  produce  a  particular  evil.  If  a  man  intentionally  does  a  wrongful  act, 
an  act  which  he  knows  is  likely  to  injure  another,  that  in  law  is  malice;  it  is  the 


MALICE.  347 

willful  purpose,  the  willful  doing  of  an  act  which  he  knows  is  liable  to  injure  another, 
regardless  of  the  consequences.  That  is  malice,  although  the  man  may  not  have  had 
a  specific  intention  to  nurt  a  particular  individual  *  *  *." 

It  is  also  said,  in  Davis  v.  Pac.  Tel.  Co.  (Cal.)  (57  Pac.,  764,  765),  and  similarly  in 
other  cases,  that — 

"An  act  is,  in  contemplation  of  law,  done  maliciously  where  it  is  wrongful  and  is 
done  intentionally."  C.  M.  O.  10,  1912,  7. 

MALICIOUS. 

1.  Assault— Willful  and  malicious  assault.    C.  M.  O.  47, 1910, 8.    See  also  ASSAULT,  28. 

MALICIOUS  DESTRUCTION  OF  PUBLIC  RECORDS. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  28, 1887. 

MALICIOUSLY. 

1.  Assault— An  accused  was  tried  by  general  court-martial  under  the  charges  (1)  "Using 
obscene  language  toward  his  superior  officer  "and  (2)  "Assaulting  and  striking  his  su- 
perior officer  while  in  the  execution  of  the  duties  of  his  office." 

The  specification  of  the  second  charge  alleged  that  accused  did  willfully  and  mali- 
ciously and  without  justifiable  cause  assault  and  strike  his  superior  officer  who  was 
in  the  discharge  of  his  duties. 

The  court  found  the  specification  of  the  second  charge  proved  in  part,  proved  except 
the  words  "and  maliciously"  and  the  words  "assault  and,"  which  words  the  court 
found  not  proved. 

The  court  accordingly  found  the  accused  of  the  second  charge  "guilty  in  less  degree 
than  charged,"  guilty  of  "striking  his  superior  officer  while  in  the  execution  of  the 
duties  of  his  office." 

In  connection  with  the  finding  upon  the  specification  of  the  second  charge,  the 
department  is  of  opinion  that  by  the  elimination  of  the  word  "maliciously,"  the 
gist  of  the  offense  and  the  criminal  intent  thereof  are  removed.  The  fact  that  a  man 
is  only  guilty  of  willfully  striking  another  person  does  not  necessarily  mean  that  such 
a  person  is  guilty  of  any  wrongful  act  and  intentional  wrongdoing.  Thus,  one  may 
be  guilty  of  willfully  slapping  or  striking  in  a  playful  manner  another  person,  without, 
however,  being  guilty  of  any  criminal  wrongdoing. 

In  Words  and  Phrases  Judicially  Defined,  volume  5,  page  4311,  under  the  caption 
of  "Maliciously,"  it  is  stated  that  "An  act  is,  in  contemplation  of  law,  done  mali- 
ciously where  it  is  wrongful  and  is  done  intentionally.  (Davis  t>.  Pacific  Tel.  and 
Tel.  Co.  (Cal.),  57  Pac.,  764,  765.)" 

In  view  of  the  foregoing  it  would  appear  that  the  word  "maliciously"  is  an  im- 
portant ingredient  of  the  offense  as  alleged  in  the  specification. 

With  reference  to  the  finding  of  the  court  upon  the  second  charge  the  department 
is  of  opinion  that  such  is  inconsistent.  In  other  words,  the  court  goes  on  record  as 
being  of  the  opinion  that  accused  is  guilty  of  striking  but  not  assaulting  his  superior 
officer.  It  is  not  apparent  to  the  reviewing  authority  that  a  man  may  intentionally 
and  wrongfully  strike  another  person  without  assaulting  him. 

Words  and  Phrases  Judicially  Defined,  volume  1,  page  523,  states  that  an  assault 
is  an  attempt  or  even  an  offer  to  strike  the  person  of  another,  and  of  course  includes 
a  successfuTattempt  or  an  actual  striking. 

The  record  was  therefore  returned  to  the  court  for  the  purpose  of  revising  its  findings 
and  sentence.  C.  M.  O.  30, 1910,  8-9.  See  also  ASSAULT,  19. 

2.  Same — "Maliciously"  not  proved  in  specification  of  charge  "Assaulting  and  wounding," 

etc.  but  guilty  of  charge.    See  ASSAULT,  19. 

3.  Defined.    See  MALICIOUSLY,  1. 

4.  Elimination  of — "  Maliciously  "  from  specification  in  a  charge  of  assaulting  and  striking 

removes  gist  of  offense.    See  ASSAULT,  3. 

5.  Willfully — Differs  from  "maliciously"  in  not  implying  an  evil  mind.    C.  M.  O.  23, 

1911,  5. 

«  MALICIOUSLY  AND  WILLFULLY." 
1.  Defined.    G.  C.  M.  Bee.  24983. 

MALICIOUSLY  UTTERING  SEDITIOUS  WORDS. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 40, 1887, 1. 


348  MANSLAUGHTER. 

MALINGERING.    See  also  WORDS  AND  PHRASES. 

1.  Enlisted  man— Charged  with  (G.  C.  M.  Rec.  No.  31194).    C.  M.  O.  42,  1915,  4. 

2.  "  Refusing  to  obey  the  lawful  order  of  his  superior  officer  "—The  accused  was 

tried  on  a  charge  "Refusing  to  obey  the  lawful  order  of  his  superior  officer."  The 
court  found  the  specification  proved  except  the  words  "did  refuse  to  obey  and  did 
willfully  disobey"  substituting  therefor  the  words,  "by  willfully  and  persistently 
feigning  illness  did  avoid  obeying,"  and  that  the  accused  was  guilty  in  a  less  degree 
than  charged,  guilty  of  malingering.  The  finding  of  the  court  is  invalid,  in  that 
it  substitutes  a  charge  of  an  entirely  separate  and  distinct  character,  and  which  is 
not  a  lesser  degree  of  the  one  alleged.  C.  M.  O.  37,  1909,  3. 

MALPRACTICE. 

1.  Surgeon— Charged  with  and  acquitted.    C.  M.  O.  14, 1909. 

MALTREATING  A  PERSON  SUBJECT  TO  HIS  ORDERS. 

1.  Officer— Charged  with.    C.  M.  O.  33,  1915. 

2.  Warrant  officer  (commissioned) — Charged  with.    C.  M.  O.  48,   1914.    See  also, 

C.  M.  O.  78, 1896. 

MALTREATING  AN  OFFICER  ON  SHORE. 

1.  Officer— Charged  with.    G.  C.  M.  Rec.  8720. 

MALTREATMENT  OF  PERSONS  SUBJECT  TO  HIS  ORDERS. 

1.  Officer— Charged  with.    C.  M.  O.  29,  1890,  6. 

MAN  OF  WAR.    See  C.  M.  O.  14,  1879,  3;  43,  1895,  2. 

MANDAMUS,  WRIT  OF.    See  LEGAL  LIABILITY,  3;  WORDS  AND  PHRASES. 

MANDATORY  REGULATIONS  AND  LAWS. 

1.  A.  G.  N.  32— Directory  rather  than  mandatory.    C.  M.  O.  18,  1897,  3. 

2.  A.  G.  N.  33— Directory  rather  than  mandatory.    C.  M.  O.  18,  1897,  3. 

3.  A.  G.  N.  34— Directory  rather  than  mandatory.    C.  M.  O.  18,  1897,  3. 

4.  A.  G.  N.  45— Seems  to  be  directorv  rather  than  mandatory.    C.  M.  O.  27,  1898,  1. 

5.  A.  G.  N.  47— Is  mandatory.    C.  M.  O.  74,  1899,  2. 

6.  A.  G.  N.  61— Is  mandatory.    C.  M.  O.  132,  1897,  3. 

7.  A.  G.  N.  6O— The  121st  Article  of  War  is  almost  identical  with  A.  G.  N.  60,  but  the 

latter,  however,  being  made  more  mandatory  in  its  terms  by  the  use  of  the  word 
"shall"  instead  of  "may"  as  in  the  former.  C.  M.  O.  88,  1895, 13. 

8.  Disregard— Of  a  directory  provision  intended  to  promote  method,  system,  uniformity, 

and  dispatch  in  the  modes  of  proceedings  may  render  officers  guilty  thereof  liable 
to  legal  animadversion,  perhaps  to  punishment  for  noncompliance,  yet  compliance 
Is  not  a  condition  precedent  to  the  validity  of  their  acts.  In  general,  statutes  directing 
the  mode  of  proceeding  by  public  officers  are  deemed  advisory,  and  strict  compliance 
with  their  detailed  provisions  is  not  deemed  indispensable  to  the  validity  of  the 
proceedings  themselves  unless  a  contrary  intention  can  be  gathered  from  the  statutes 
construed  in  the  light  of  other  rules  of  interpretation.  C.  M.  O.  27,  1898,  1. 

9.  Regulation— Navy  Regulations,  1913,  R-787  (3),  held  to  be  not  mandatory.    C.  M.  O. 

6,  1915,  6;  41,  1915,  10.    See  also  C.  M.  O.  49,  1915,  10,  12,  13-14. 

10.  Statutes— The  question  whether  or  not  a  statute  is  mandatory  or  directory  depends 

upon  the  intention  of  the  legislature,  to  be  ascertained  from  a  consideration  of  the 
entire  act,  its  nature,  its  object,  and  the  consequences  that  would  result  from  con- 
struing it  one  way  or  another.  File  26260-1244,  J.  A.  G.,  Apr.  14,  1911,  p.  2. 

MANDATORY  SENTENCES. 

1.  Sentences — Dismissal  mandatory  on  conviction  of  "conduct  unbecoming  an  officer 

and  a  gentleman"  hi  Army.  See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GEN- 
TLEMAN, 6. 

2.  Same— Not  mandatory  for  "court-martial"  to  impose  sentence  of  dismissal  or  im- 

prisonment in  case  of  midshipman  charged  with  "brutal  or  cruel"  hazing.  See 
HAZING,  6. 

MANIFEST  IMPEDIMENT.    See  STATUTE  OF  LIMITATIONS. 

MANSLAUGHTER.    See  also  MURDER. 

1.  Care  necessary.    See  MANSLAUGHTER,  12. 

2.  Definition.    See  MANSLAUGHTER,  12, 13. 

3.  Enlisted  man— Charged  with,  and  acquitted.    C.  M.  0. 33, 1914, 8-12;  6, 1915, 4;  49, 1915, 

12.    See  also  G.  C.  M.  Rec.  24242;  24873. 


MANSLAUGHTER.  349 

4.  "  Feloniously  and  willfully."    See  MANSLAUGHTER,  13. 

5.  Finding— Of  "Manslaughter"  on  charge  of  "Murder."    C.  M.  0. 12, 1911,  5. 

6.  Guard— Member  of  guard  fired  at  escaping  prisoner  and  killed  bystander.    See  MAN- 

SLAUGHTER, 9. 

7.  Involuntary.    See  MANSLAUGHTER.  9. 

8.  Jurisdiction— Of  naval  courts-martial  to  try  an  enlisted  man  on  the  charge  of  "Man- 

slaughter," and  relative  to  the  jurisdiction  of  State  and  Federal  courts.  File  26250-81. 
J.  A.  G.,  Aug.  4,  1909.  See  also  MURDER,  2,  3,  8,  9,  14,  21-27. 

9.  Member  of  guard — Fired  at  escaping  prisoner  and  killed  bystander — The  accused 

was  a  member  of  a  guard  on  duty  in  Haiti  and  furnished  with  a"  45-cal .  automatic  pistol 
and  ammunition.  This  guard  was  in  charge  of  prisoners,  one  of  whom  was  a  native 
Haitien  who  was  being  detained  on  a  charge  of  theft  awaiting  action  of  the  com- 
manding officer.  This  prisoner  broke  from  ranks  and  attempted  to  escape,  running 
down  a  public  highway  toward  a  bridge.  The  corporal  of  the  guard  and  the  accused 
ran  after  him,  the  corporal  shouting  the  general  order  to  "stop  that  man,"  to  which 
the  fleeing  prisoner  gave  no  heed.  The  accused,  slightly  in  advance  of  the  corporal, 
not  gaming  upon  the  prisoner,  called  out  at  least  twice  to  the  prisoner  to  halt  or  he- 
would  fire,  and  finally  seeing  the  prisoner  was  about  to  escape  fired  two  shots  at  him. 
One  of  these  shots  struck  and  killed  a  native  bystander,  who  was  beyond  the  fleeing 
prisoner  and  not  in  view  of  the  accused,  and  it  was  for  the  death  of  this  person  that  the 
accused  was  tried  by  general  court-martial  on  the  charge  of "  Manslaughter." 

There  was  no  evidence  that  the  killing  was  intentional  or  that  the  accused  acted 
maliciously  or  wantonly  or  otherwise  than  in  good  faith,  nor  was  it  established  that  he 
fired  before  the  necessity  for  his  doing  so  had  become  apparent.  It  was  shown  that 
the  circumstances  and  conditions  did  not  point  to  a  reckless  disregard  of  the  safety 
of  innocent  bystanders  present. 

There  was  evidence  to  establish  conclusively  that  the  accused  acted  in  the  per- 
formance of  his  duty  as  a  member  of  the  guard  in  obedience  to  the  following  orders 
from  the  Manual  of  Interior  Guard  Duty,  United  States  Army,  1914,  page  62,  par.  305, 
which  as  established  by  both  the  eyidence  and  Navy  Regulations,  1913,  R-4183, 
govern  the  Marine  Corps  on  an  occasion  as  the  one  in  question: 

"If  a  prisoner  attemps  to  escape,  the  sentinel  will  call,  'HALT.'    If  he  fails  to 
bait  when  the  sentinel  has  once  repeated  the  call,  and  if  there  be  no  otherpossible  means . 
of  preventing  his  escape,  the  sentinel  will  fire  upon  him."    See  also  PRISONERS,  19. 

The  record  also  disclosed  evidence  "that  every  man  of  the  guard  should  do  his 
part  in  detaining  a  prisoner,  who  attempts  to  escape." 

Held,  under  such  facts  the  accused  was  acting  in  the  performance  of  his  duty  as 
a  member  of  the  guard.  He  fired  at  the  prisoner  under  the  performance  of  an  obliga- 
tion to  prevent  his  escape  by_  any  means  in  his  power.  The  accused,  at  the  time 
of  the  snooting,  was  engaged  in  the  commission  of  a  lawful  act,  he  acted  with  "due 
caution  and  circumspection, "  and  the  department  holds  that  for  the  reasons  advanced 
in  Court  Martial  Order  No.  33, 1914,  pp.  8-12  "the  occurrence  was  excusable  homicide 
of  the  class  known  as  'homicide  by  misadventure.'  "  (See  also  File  7657-125  J.  A.  G.: 
Jan.  1912;  C.  M.  0. 37, 1915;  Index-Digest,  1914,  p.  28;  U.  S.  v.  Clark,  31  Fed.  Rep.  710; 
U.  S.  v.  Lipsett,  156  Fed.  Rep.  71).  C.  M.  O.  49,1915,  12-11;  G.  C.  M.  Rec.  31423. 

10.  Midshipman— Charged  with.    C.  M.  0. 128, 1905. 

11.  Negligence.    See  MANSLAUGHTER,  12. 

12.  Proof  of — A  probationer  at  the  Naval  Disciplinary  Barracks,  Port  Royal,  S.  C.,  was 

tried  by  general  court-martial  on  the  charges  "Manslaughter,"  and  "Conduct  to  the 
prejudice  of  good  order  and  discipline." 

The  substance  of  the  first  charge  was  that  the  accused,  while  on  duty  as  a  sentinel 
over  a  detentioner,  did  neglect  and  fail  to  handle  his  rifle  with  due  caution  and 
circumspection,  in  consequence  of  which  neglect  and  failure  he  did  "kill  and  slay" 
the  deceased.  The  gravamen  of  the  second  charge  was  that  the  accused  did  "make 
careless  use  of  firearms,"  thereby  causing  the  death  of  the  deceased. 

The  court  acquitted  the  accused  of  the  charge  of  "  Manslaughter,"  found  him  guilty 
of  "Conduct  to  the  prejudice  of  good  order  and  discipline,"  and  sentenced  him  to  con- 
finement at  hard  labor  for  two  years,  forfeiture  of  pay,  and  dishonorable  discharge. 
The  evidence,  in  brief ;  showed  that  on  the  morning  o  f  the  fatality  the  accused  demon- 
strated to  another  enlisted  man  the  working  of  his  rifle,  which  contained  Ifve  ammu- 
nition in  the  magazine;  that  in  the  course  of  this  demonstration  a  cartridge  probably 
entered  the  chamber  of  the  rifle  from  the  magazine  without  the  knowledge  of  the 
accused;  that  two  or  three  hours  later  the  accused,  while  on  duty  as  sentinel,  gave  a 


350  MANSLAUGHTER. 

riflesalute  to  the  deceased ;  that  immediately  thereafter  the  accused  started  to  "  shoulder 
arms";  that  when  the  position  of  "port  arms"  was  reached  the  bolt  of  the  rifle  came 
partially  open,  and,  with  the  rifle  pointed  toward  the  deceased,  the  accused  pushed 
the  bolt  home,  thus  discharging  the  rifle  and  inflicting  a  mortal  wound  upon  the  de- 
ceased; that  the  accused  thought  that  the  rifle  was  cocked  while  he  was  carrying  it; 
and  that  he  knew  the  firing-pin  lock  was  at  "ready,"  but  did  not  consider  it  necessary 
to  put  the  "safety"  on,  as  he  was  under  the  impression  that  the  cartridges  were  all  ia 
the  magazine. 

"Manslaughter  is  the  unlawful  killing  of  a  human  being  without  malice.  It  is  of 
two  kinds:  First,  voluntary — upon  a  sudden  quarrel  or  heat  of  passion;  second,  in- 
voluntary— in  the  commission  of  an  unlawful  act  not  amounting  to  a  felony,  or  in  the 
commission  of  a  lawful  act  which  might  produce  death,  in  an  unlawful  manner,  or 
without  due  caution  and  circumspection."  (Sec.  274,  U.  S.  Criminal  Code,  Mar.  4, 
1909,  35  Stat.,  1088,  1143.) 

In  the  present  case  the  accused  did  not  kill  the  deceased  in  a  sudden  quarrel  or  heat 
of  passion.  He  was  not.  therefore,  guilty  of  voluntary  manslaughter.  Nor  was  this 
occurrence  due  to  an  unlawful  act  of  the  accused  within  the  meaning  of  the  above 
definition.  "  To  be  unlawful  within  the  meaning  of  this  rule,  an  act  from  which  death 
results  must  have  been  intentionally  wrong  in  itself,  or  malum  in  se,  and  not  merely 
malum  prohibitum"  (a  thing  prohibited).  (3  L.  R.  A.(N.S.),  1163.)  The  evidence 
shows  that  the  accused  spoke  to  the  deceased  while  on  duty;  that  he  allowed  the  deten- 
tioner  under  his  charge  to  get  out  of  his  sight,  and  that  he  gave  the  deceased  a  salute, 
all  of  which  acts  were  in  violation  of  post  orders;  and  immediately  preceded  the  fatal- 
ity. These  acts,  however,  were  merely  mala  prohibta,  and  their  connection  with 
the  fatality  is  not  directly  established  by  the  evidence.  On  the  contrary,  it  appears 
that  when  the  rifle  was  discharged,  the  accused  was  engaged  in  doing  a  lawful  act, 
namely,  bringing  his  rifle  to  "shoulder  arms."  The  question  thus  narrows  down  to 
the  point  whether,  at  the  time  of  the  shooting,  the  accused  was  engaged  in  the  "com- 
mission of  a  lawful  act  which  might  produce  death  in  an  unlawful  manner  or  without 
due  caution  and  circumspection."  If  so,  he  was  guilty  of  manslaughter  of  the  grade 
defined  by  the  Criminal  Code  as  involuntary.  If  not,  the  occurrence  was  excusable 
homicide  of  the  class  known  as  "homicide  by  misadventure."  (3  L.  R.  A.  (N.  S.), 
1153.)  In  arriving  at  a  conclusion  in  this  case  the  questions  to  be  considered  are:  Was 
the  lawful  act  in  which  the  accused  was  engaged  (bringing  his  rifle  to  "shoulder  arms  ") 
such  an  act  as  "might  produce  death";  and  if  so,  did  the  accused  perform  this  act 
"without  due  caution  and  circumspection"?  As  to  the  first  point,  the  fact  that  the 
act  in  which  the  accused  was  engaged  "might  produce  death"  is  mutely  witnessed 
by  the  death  of  the  deceased,  which  resulted  therefrom.  The  sole  remaining  question, 
therefore,  is  whether  the  accused  performed  this  act  "without  due  caution  and  cir- 
cumspection." 

As  the  court,  under  the  second  charge,  found  that  at  the  time  in  question  the  accused 
did  "make  careless  use  of  firearms,"  thereby  causing  the  death  of  the  deceased,  the 
department  returned  the  record  to  the  court  for  reconsideration  of  its  finding  and 
acquittal  on  the  charge  of  manslaughter;  inviting  attention  to  the  foregoing  matters 
and  continuing  as  follows: 

It  is  proper  to  remark,  however,  that  there  are  authorities  to  the  effect  that  every 
careless  act  in  the  handling  of  firearms,  which  results  in  the  accidental  killing  of 
another,  is  not  sufficient  to  convict  an  accused  of  manslaughter.  There  may  be  care- 
lessness of  such  a  trivial  or  slight  degree  that  the  accused  will  not  be  held  criminally 
responsible  for  the  resulting  homicide,  but  the  occurrence  will  be  classified  as  "homi- 
cide by  misadventure."  The  rule  deducible  from  the  authorities  has  been  summa- 
rized as  follows: 

"The  degree  of  care  and  caution  to  avoid  mischief,  required  to  save  from  criminal 
responsibility  one  who  accidentally  kills  another,  is  that  which  a  man  of  ordinary 
prudence  would  have  exercised  under  like  circumstances;  mere  slight  negligence, 
with  no  intent  to  do  harm,  under  such  circumstances  that  it  could  not  reasonably  be 
supposed  that  injury  would  result,  does  not  furnish  a  foundation  for  criminal  respon- 
sibility for  a  resulting  death."  (3  L.  R.  A.  (N.  S.),  1163.) 

In  a  previous  case  (G.  C.  M.  Rec.  24878),  the  department  quoted  with  approval  the 
following  statement  on  this  subject  from  Cyclopedia  of  Law  and  Procedure  (21  Cyc., 
765): 

"  A  homicide  is  manslaughter,  even  though  committed  in  doing  an  act  lawful  in 
itself,  if  defendant  was  guilty  of  gross  or  culpable  negligence,  and  such  negligence  was 


MANSLAUGHTER.  351 

the  cause  of  the  death.  But  the  negligence  must  have  been  gross  or  culpable  under 
the  circumstances,  and  not  merely  such  as  would  impose  civil  liability  for  damages, 
and  it  must  have  been  the  negligence  of  the  defendant  personally.  Contributory 
negligence  is  no  answer  to  a  criminal  charge  of  homicide,  as  it  is  to  a  civil  action;  nor 
is  it  any  answer  that  the  criminal  negligence  of  others  than  the  defendant  contributed 
to  the  death." 

There  is  no  doubt  that  the  accused  was  guilty  of  carelessness  in  handling  of  firearms, 
which  is  the  gravamen  of  the  second  charge,  and  the  court,  therefore,  properly  con- 
victed him  of  that  charge.  (Conduct  to  the  prejudice  of  good  order  and  discipline.) 
Was  he  not,  also,  guilty  of  gross  or  culpable  negligence  in  killing  the  deceased,  and 
therefore  guilty  of  manslaughter  under  the  first  charge?  Is  a  man  in  a  military  service, 
performing  duty  as  a  sentinel ,  guilty  of  gross  or  culpable  negligence  in  carrying  a  loaded 
rifle  without  knowing  that  said  rifle  is  loaded?  Is  a  man  in  a  military  service,  per- 
forming duty  as  a  sentinel,  guilty  of  gross  or  culpable  negligence  in  carrying  a  loaded 
rifle,  and  one  which  he  knew  contained  live  ammunition  in  the  magazine  if  not  in  the 
chamber,  without  having  the  firing  pin  lock  at  "safe?"  Is  a  man  in  a  military  service, 
performing  duty  as  a  sentinel,  guilty  of  gross  or  culpable  negligence  when,  in  bringing 
his  rifle  from ' '  order  "  to  "  shoulder  arms, "  he  points  it  at  another  person  and  discharges 
it,  thereby  killing  that  person?  And  if  so,  is  his  negligence  excused  or  aggravated 
from  a  military  point  of  view  by  the  fact  that,  although  on  duty  as  sentinel,  he  did  not 
know  that  his  piece  was  loaded;  or  by  the  fact  that,  knowing  he  had  live  ammunition 
in  the  magazine,  if  not  in  the  chamber,  he  neglected  the  precaution  of  having  his  fir- 
ing pin  lock  at  "safe?"  In  order  to  acquit  the  accused  of  manslaughter,  the  court 
must  find  that  he  was  not  guilty  of  gross  or  culpable  negligence  in  these  respects,  but 
that  his  several  acts  of  carelessness,  which  caused  the  death  of  the  deceased,  consti- 
tuted carelessness  of  such  a  trivial  or  slight  character  that  a  man  experienced  in  the 
naval  service  is  not  to  be  held  criminally  responsible  therefor;  in  other  words,  that 
persons  in  the  naval  service  whose  duties  require  them  to  handle  dangerous  weapons, 
may  nevertheless  handle  such  weapons  in  a  careless  and  death-dealing  manner,  and 
yet,  when  brought  to  trial  therefor,  are  to  be  acquitted  of  the  lowest  grade  of  criminal 
homicide  known  to  the  law. 

The  court  will  reconvene  for  the  purpose  of  reconsidering  its  findings  upon  Charge 
I  and  the  sentence.  If  the  court  should  be  of  the  opinion  that  the  carelessness  of  the 
accused  was  slight  and  trivial,  bearing  in  mind  his  status  as  a  person  experienced  in  a 
military  service,  the  court  should  properly  adhere  to  its  findings  upon  Charge  I.  If, 
on  the  other  hand,  the  court  should  decide  that  the  carelessness  of  the  accused  in  this 
case,  as  shown  by  the  evidence,  was  gross  or  culpable,  the  court  should  revoke  its 
former  findings  on  Charge  I  and  substitute  therefor  a  finding  of  guilty.  In  this  con- 
nection, the  court  will  bear  in  mind  the  fact  that  the  accused  loaded  his  rifle  without 
knowing  it;  that  he  neglected  to  have  his  firing  pin  lock  at  "safe;"  and  that,  in  bring- 
ing his  loaded  piece  from  "order"  to  "shoulder  arms"  he  pointed  it  at  another  man 
and  discharged  it,  thereby  causing  the  latter's  death.  The  court  will  also  bear  in 
mind  that  casualties  of  this  nature  might  occur  many  times  a  day  in  a  military  service 
but  for  the  exercise  of  due  care  and  circumspection  which  the  law  exacts  of  all  persons 
armed  with  a  dangerous  weapon;  and  that  those  charged  with  the  administration  of 
the  law  can  not  relax  its  requirements  without  violating  their  duty  and  increasing  the 
hazards  and  dangers  of  the  service,  which  all  should  be  diligent  to  minimize. 

The  court  in  revision  decided  "respectfully  to  adhere  to  its  former  finding  and  sen- 
tence." In  so  doing,  the  court  put  itself  on  record  to  the  effect  that  the  carelessness 
of  the  accused,  although  such  as  to  warrant  the  imposition  of  a  sentence  of  confinement 
at  hard  labor  for  conduct  to  the  prejudice  of  good  order  and  discipline,  was  nevertheless 
too."slight  and  trivial"  to  render  the  accused  guilty  of  manslaughter.  C.  M.  O.  33, 
1914,8-11;  36,  1914,  6. 

13.  Same — The  record  in  the  case  of  an  accused,  tried  by  general  court-martial  on  thecharge 
of  "Manslaughter,"  was  returned  to  the  court  by  the  department  with  the  following 
remarks: 

The  accused  in  this  case  was  brought  to  trial  on  the  charge  of  manslaughter.  The 
court  found  the  specification  not  proved  and  the  accused  of  the  charge  not  guilty, 
and  accordingly  acquitted  him. 

From  a  review  of  the  evidence  adduced  at  the  trial  it  appears  that  the  accused 
while  skylarking  with  or  teasing  some  of  his  fellow  marines,  threwa  piece  of  paper 
or  pasteboard  at  another  marine  private  which  struck  the  deceased,  whereupon  there 
was  an  exchange  of  words,  probaHy  includiijg  the  use  of  opprobrious  epithets  by 
the  deceased,  and  which  resulted  in  a  proposition  to  settle  the  matter  by  a  fight. 

60756°— 17 23 


352  MANSLAUGHTER. 

While  there  was  testimony  Indicating  that  the  accused  proposed  the  combat,  the 
weight  of  evidence  is  to  the  effect  that  the  deceased  invited  the  accused  to  go  out 
and  settle  the  matter  "behind  the  laundry,"  which  was  equivalent  to  the  same 
thing.  Whichever  proposed  the  fight,  however,  the  other  necessarily  acquiesced 
voluntarily  therein,  as  there  is  no  evidence  to  show  that  either  was  in  any  way  forced 
by  physical  means  into  the  encounter. 

There  were  eight  witnesses  who  viewed  the  combat,  and  their  testimony  concerning 
the  material  details  thereof  is  fairly  clear  and  uniform.  It  began  with  an  exchange 
of  blows,  the  deceased  finally  being  struck  by  the  accused  on  the  nose,  after  which 
there  was  a  cessation  for  a  short  interval.  During  this  time  the  accused  asked  the 
deceased  whether  he  had  had  enough,  or  words  to  that  effect,  to  which  inquiry  the 
deceased  responded  substantially  that  he  had  not,  or  "No;  wait,"  indicating  a  desire 
to  continue  the  encounter.  The  accused  did  not  say  that  he  had  had  enough,  nor 
did  he  say  to  the  deceased  that  he  intended  to  withdraw,  nor  does  the  weight  of  the 
evidence  tend  to  show  that  he  did  endeavor  to  withdraw;  on  the  contrary  five  of  the 
witnesses  stated  substantially  that  he  stood  his  ground;  one  that  he  stepped  back 
two  steps;  and  another  that  he  walked  away.  But  the  evidence  shows  that  only  a 
few  paces  separated  the  two  men. 

The  combat  was  then  resumed,  the  deceased  advancing  upon  the  accused,  and  in 
the  subsequent  interchange  of  blows  the  latter  struck  the  deceased's  right  temple 
with  his  fist,  from  which  blow  the  deceased  died  the  following  morning.  It  appears 
from  the  evidence  that  at  no  time  during  the  fight  was  the  accused  excited,  but,  on 
the  contrary,  appeared  calm.  He  was  a  considerably  larger  man  than  the  deceased, 
and  evidently  felt  himself  in  no  particular  danger.  There  was  evidence  to  the  effect 
that  the  deceased's  skull  over  the  right  temporal  region  was  abnormally  thin,  also  that 
fighting  was  contrary  to  the  post  regulations  and  the  Navy  Regulations,  although  the 
latter  might  have  been  taken  judicial  notice  of  by  the  court. 

Manslaughter  is  unlawful  homicide  without  malice  aforethought,  either  express  or 
implied.  It  is  subdivided  into  voluntary  and  involuntary  manslaughter  according 
to  whether  there  was  an  intention  to  kill  or  not.  (21  Cyc.,  734.)  Referring  to  the 
subject  of  manslaughter  in  Clark's  Criminal  Law  (pp.  197,  204)  the  following  state- 
ments are  found: 

"73.  Manslaughter  is  unlawful  homicide  without  malice  aforethought,  and  is 
either  (a)  voluntary  or  (6)  involuntary. 

"Manslaughter  is  a  felony." 

"VOLUNTARY  MANSLAUGHTER. 

"75.  Voluntary  manslaughter  is  where  the  act  causing  death  is  committed  in  the 
heat  of  sudden  passion,  caused  by  provocation. 

"(a)  The  provocation  must  be  such  as  the  law  deems  adequate  to  excite  uncon- 
trollable passion  in  the  mind  of  a  reasonable  man. 

"(b)  The  act  must  be  committed  under  and  l.ecause  of  the  passion. 

"(c)  The  provocation  must  not  be  sought  or  induced  as  an  excuse  for  killing  or 
doing  bodily  harm. 

"INVOLUNTARY  MANSLAUGHTER. 

"76.  Involuntary  manslaughter  is  homicide  unintentionally  caused. 

"(a)  In  the  commission  of  an  unlawful  act  not  amounting  to  a  felony,  nor  likely 
to  endanger  life,  or 

"(6)  By  culpable  negligence  (1)  in  performing  a  lawful  act,  or  (2)  in  performing 
an  act  required  by  law." 

The  Federal  Criminal  Code,  act  of  March  4,  1909  (35  Stat.,  1088,  1143),  contains  the 
following  pertinent  section: 

"SEC.  274.  Manslaughter  is  the  unlawful  killing  of  a  human  being  without  malice. 
It  is  of  two  kinds: 

"First.  Voluntary— Upon  a  sudden  quarrel  or  heat  of  passion. 

"Second.  Involuntary— In  the  commission  of  an  unlawful  act  not  amounting  to  a 
felony,  or  in  the  commission  of  a  lawful  act  wliich  might  produce  death,  in  an  unlawful 
manner,  or  without  due  caution  and  circumspection." 

The  latter  statute  is  therefore  declaratory  of  the  common  law  as  stated  by  Clark 
above.  An  examination  of  the  definitions  of  manslaughter,  as  given  above,  together 
with  the  evidence  in  the  case,  indicates  that  the  act  of  the  accused  falls  under  the  head 
of  involuntary  manslaughter.  There  is  nothing  in  the  record  to  show  that  his  act 


MANSLAUGHTER.  353 

was  committed  in  the  heat  of  sudden  passion,  but,  on  the  contrary,  that  he  was 
smiling  and  cool. 

Excluding  "culpable  negligence  in  performing  a  lawful  act,  or  in  performing  an 
act  required  by  law."  the  offense  appears  to  be  embraced  within  the  definition  that 
"involuntary  manslaughter  is  homicide  unintentionally  caused  in  the  commission 
of  an  unlawful  act  not  amounting  to  a  felony  nor  likely  to  endanger  life."  There  is 
no  evidence  that  the  killing  was  intentional,  and  if  the  encounter  was  unlawful  and 
less  than  a  felony  nor  likely  to  endanger  life,  as  the  evidence  appears  to  show,  the 
definition  is  satisfied. 

With  respect  to  the  form  of  the  specification,  it  is  found  that  it  follows  practically 
verbatim ,  in  all  its  essential  features,  the  indictment  for  manslaughter  as  given  in  Joyce 
on  Indictments  (pp.  721,  722),  including  the  use  of  the  words  "feloniously  and  will- 
fully." With  respect  to  this  form,  it  was  held  in  People  v.  Butler  (3  Park.  Cr.  R., 
377,  378),  that  under  said  common-law  form  the  accused  might  be  convicted  of  man- 
slaughter as  defined  in  the  New  York  statutes  in  any  degree,  according  to  the  evidence. 
Quoting  from  the  Cyclopedia  of  Law  and  Procedure  (v.  21,  p.  852): 

"  Wilfulness  and  unlawfulness.— It  is  essential  to  aver  that  the  killing  was  unlawful 
either  by  express  allegation  or  by  the  use  of  terms  or  statements  of  fact  which  con- 
clusively imply  it.  The  words  'wilfully'  or  'unlawfully'  differing  in  this  respect 
from  such  technical  words  as  'feloniously'  and  'malice  aforethought'  are  usually 
regarded  as  unnecessary  in  case  their  place  is  supplied  by  the  use  of  other  words. 
So  the  killing  need  not  be  alleged  to  have  been  unlawful,  where  it  is  charged  to  have 
been  done  with  '  malice  aforethought '  or  'feloniously. '  So  also  'wilfully '  is  supplied 
by  'feloniously,'  or  'malice  aforethought  '  although  it  has  been  held  that  'wilfully* 
as  well  as  'feloniously'  must  be  employed  where  both  words  are  inserted  in  the  form 
of  indictment  prescribed  by  statute  or  in  the  statute  defining  the  offense." 

The  use  of  the  word  "feloniously  "is  "still  necessary  in  describing  a  common-law 
felony."  (Bouvier,  sub  voce.  Feloniously.)  This  rule  is  supported  by  numerous 
authorities  (Words  and  Phrases  Judicially  Defined,  v.  3,  p.  2734)  and  manslaughter 
is  a  felonious  common-law  crime.  There  is  also  abundant  authority  that  "felon- 
iously" includes  also  the  sense  of  "unlawfully."  (Ib.  v.  3,  p.  2734.)  This  is  not 
intended  to  indicate  that  in  the  specification  of  an  offense  to  be  tried  by  a  court-martial 
the  same  technical  accuracy  is  required  as  in  a  common-law  indictment,  for  such  is 
not  the  case  (1  Op.  A.  G.,  294;  7  Op.  A.  G.,  601;  28  Op.  A.  G.,  286),  but  if  a  specification 
is  actually  framed,  as  in  this  case,  in  conformity  with  a  common-law  indictment  for 
manslaughter  which  has  received  judicial  approval,  it  is  a  good  and  sufficient  alle- 
gation of  the  offense  charged. 

With  regard  to  the  use  of  the  word  "wilfully,"  its  signification  in  the  specification 
is  "intentionally  and  not  by  accident,"  and  is  distinguished  from  "maliciously" 
in  not  implying  an  evil  mind.  (Bouvier,  "Wilfully.")  Its  sense,  while  different 
under  different  statutes  or  contexts,  means  that  the  act  was  done  "knowingly,"  in 
opposition  to  the  sense  of  doing  an  act  unconsciously  or  without  a  knowing  mind. 
It  does  not  necessarily  imply  malice.  (Words  and  Phrases,  etc.,  v.  8,  "Wilful," 
etc.)  As  held  in  Barr  t;.  Chicago,  etc.,  R.  Co.  (10  Ind.  App.  433): 

"  There  may  be  a  wilful  act  in  a  legal  sense  without  a  formed  and  direct  intention, 
and  there  may  be  wilfulness  where  there  is  no  direct  or  positive  intention  to  inflict 
injury.  In  other  words,  there  may  be  a  constructive  or  implied  intent." 

The  following  quotations,  supported  by  authorities,  are  taken  from  Cyclopedia  of 
Law  and  Procedure  (v.  21,  pp.  852.  858,  859):  . 

Quotation  from  page  852,  supra: 

"858.  Manslaughter. — An  indictment  for  manslaughter  may,  under  some  statutes, 
be  drawn  as  for  murder,  omitting  the  elements  of  aggravation.  Where  the  manner 
and  means  of  the  killing  are  set  out,  matter  differentiating  the  degrees  need  not  be 
averred.  The  absence  of  apt  words  characterizing  the  acts  to  have  been  done  with 
malice  aforethought  and  the  declaration  that  the  crime  intended  to  be  charged  is 
manslaughter  is  a  sufficient  declaration  that  the  homicide  was  accomplished  without 
design  to  effect  death. 

"859.  So  an  indictment  for  manslaughter  may  employ  the  term  'kill  and  murder' 
instead  of  'kill  and  slay,'  as  in  the  statutory  form,  or  the  words  of  the  statute  may  l;e 
followed  without  an  express  averment  that  the  crime  charged  was  manslaughter." 

"Mere  words,  however  abusive  or  opprobrious?  do  not  amount  to  such  provocation 
as  will  preclude  the  one  speaking  them  from  killing  in  self-defense."  (Cyc.,  v.  21, 
p.  809.) 


354  MANSLAUGHTER. 

"Neither  insulting  and  abusive  words  or  gestures"  of  themselves  amount  to  suffi- 
cient provocation  for  an  act  of  resentment  likely  to  endanger  lift.  (Clark's  Crim.  Law. 
p.  203.) 

To  excuse  a  homicide  on  the  ground  of  accident ,  the  accused  must  have  been  engaged 
in  a  lawful  act.  (Ib.,  p.  176.)  Therefore,  as  appears  to  be  the  case  here,  the  fact  that 
the  deceased's  skull  was  abnormally  thin  would  not,  as  a  matter  of  law,  excuse  the 
offense  as  an  accident  if  the  act  in  which  the  accused  was  engaged  was  unlawful. 
It  is  manslaughter  to  inflict  wounds  in  rude  sport  that  cause  death.  (Pa.  v.  Lewis, 
Add.  279.)  Bishop  in  his  Criminal  Law  (v.  2.  sec.  704,  3d  ed.)  says: 

"It  appears  to  be  the  doctrine  of  the  courts  that,  if  parties  become  excited  by  words, 
and  one  of  them  attempts  to  chastise  the  other  with  a  weapon  not  deadly,  he  will  be 
held  for  manslaughter,  though  death  is  unintentionally  inflicted." 

As  stated  in  the  American  Criminal  Reports  (v.  8.  p.  506): 

"Manslaughter  is  the  unlawful  and  felonious  killing  of  another,  without  malice, 
either  express  or  implied;  and  if,  therefore,  in  doing  an  unlawful  act,  or  in  carrying 
out  an  unlawful  design,  death  happen,  but  without  malice,  the  offense  would  be  only 
manslaughter,  provided  such  unlawful  act  or  design  be  not  a  felony,  because  then  the 
law  implies  the  existence  of  malice." 

In  this  case,  therefore,  there  was  no  express  malice  and  no  implied  malice,  because 
the  unlawful  act  in  which  the  two  men  were  engaged,  i.  e.,  the  mutual  combat,  was 
not  a  felony. 

In  cases  of  mutual  combat,  to  reduce  the  offense  of  taking  life  from  murder  to  man- 
slaughter, it  must  appear  that  the  contest  was  waged  on  equal  terms  and  no  undue 
advantage  was  taken.  (People  v.  Sanchez,  24  Cal.,  17.)  "  Prize  fighting  and  boxing 
matches  are  unlawful;  and  if  death  ensues  it  is  manslaughter.  Where  a  man  was 
challenged  to  fight,  for  a  public  trial  of  skill  in  boxing,  and  was  even  urged  to  it  by 
taunts,  and  he  fought  and  killed  his  adversary,  this  was  holden  to  be  manslaughter, 
although  the  occasion  was  sudden."  (Archbold's  Crim.  Pr.  &  PL,  v.  1,  p.  829.) 

There  is  no  question  as  to  the  fact  that  legally  an  assault  was  committed  by  the 
accused  upon  the  deceased,  and  that  he  struck  him  the  blow  which  caused  his 
death,  constituting  a  technical  battery  as  well  as  an  actual  one.  As  stated  in  the 
Cyclopedia  of  Law  and  Procedure  (v.  21,  pp.  762,  763): 

"In  accordance  with  the  rule  that  it  is  manslaughter  to  unintentionally  kill  another 
in  doing  an  unlawful  act,  it  is  well  settled  that  if  one  commits  an  assault  and  battery 
upon  another  not  likely  to  cause  death,  and  death  unintentionally  results  either  to  the 
person  assaulted  or  to  a  bystander,  it  is  manslaughter.  *  *  * 

"The  same  is  true,  according  to  some  of  the  cases,  of  an  unintentional  homicide 
committed  while  engaged  in  a  riot  or  unlawful  assembly;  and  it  is  true  of  an  uninten- 
tional homicide  in  an  affray  or  unlawful  fighting,  including  prize  fighting,  where  such 
fight  is  unlawful,  or  in  any  unlawful  game  or  sport. " 

As  stated  in  the  Law  of  Crimes  (Clark  &  Marshall,  v.  1,  p.  443): 

"  Fighting,  and  breaches  of  the  peace.— By  the  decided  weight  of  authority,  a  person 
can  not  consent  to  a  breach  of  the  peace  or  to  a  beating  which  may  result  in  serious 
injury.  And  it  has  been  held,  therefore,  both  in  England  and  in  this  country,  that 
if  a  person  engage  in  a  fight  by  agreement,  whether  a  prize  fight  or  not,  their  consent 
does  not  prevent  each  from  being  guilty  of  an  assault  and  battery  upon  the  other. " 

The  same  authors,  with  respect  to  offenses  against  the  public  peace,  say  (ib.,  v.  2, 
pp.  984,  985): 

"In  addition  to  these  specific  offenses,  it  may  be  laid  down  as  a  general  rule  that 
any  other  act  which  constitues  a  breach  of  the  public  peace,  or  which  has  a  direct 
tendency  to  cause  a  breach  of  the  public  peace,  is  a  misdemeanor  at  common  law. 

"It  is  not  necessary  that  there  shall  pe  actual  force  or  violence  to  constitute  an 
indictable  offense.  Acts  injurious  to  private  persons,  which  tend  to  excite  violent 
resentment,  and  thus  produce  fighting  and  disturbance  of  the  peace  of  society,  are 
themselves  indictable.  ' 

But  aside  from  the  unlawfulness  of  fighting,  as  above  shown,  the  Articles  for  the 
Government  of  the  Navy  provide  (art.  8,  cl.  3),  as  follows: 

"ART.  8.  Such  punishment  as  a  court-martial  may  adjudge  may  be  inflicted  on  any 
person  in  the  Navv— who  *  *  * 

« (3)  *  *  *  quarrels  with,  strikes,  or  assaults,  or  uses  provoking  or  reproachful 
words,  gestures,  or  menaces  toward  any  person  in  the  Navy;  *  * 

Section  1021,  Revised  Statutes,  provides  that  the  Marino  Corps  shall  be  subject  to 
the  foregoing  provision,  among  others,  as  follows: 


MANSLAUGHTER.  355 

"  SEC.  1621.  The  Marine  Corps  shall,  at  all  times,  be  subject  to  the  laws  and  regula- 
tions established  for  the  government  of  the  Navy,  except  when  detached  for  service 
with  the  Army  by  order  of  the  President;  *  *  *" 

And,  furthermore,  fighting  was  against  the  post  regulations  at  the  marine  barracks 
where  this  offense  was  committed.  So  that  whether  the  combat  be  regarded  as  malum 
prohibitum,  or  malum  in  sc,  with  respect  to  which  a  distinction  is  sometimes  made  by 
the  courts,  the  fighting  between  the  accused  and  the  deceased  was  unlawful.  This 
being  so,  the  offense  was  proved,  and  it  will  now  be  necessary  to  give  consideration 
to  certain  matters  of  defense. 

Apparently  there  is  an  eft  ort  to  show  that  the  accused  acted  in  self-defense,  and  that 
in  his  fight  with  the  deceased  he  struck  the  deceased  on  the  skull,  the  bones  of  which 
were  abnormally  thin.  As  to  this,  Bishop,  in  his  Criminal  Law  (3d  ed.,  v.  2,  sec.  651), 
says: 

"If  improper  force  is  used  for  defense,  even  where  force  is  permissible,  he  who 
employs  this  improper  force  must  answer  as  for  a  felonious  homicide  should  death 
accidently  follow. " 

Also  (ib.,  sec.  652): 

"It  is  well  known  that  where  one  assaults  another,  or  engages  with  another  in  a 
mutual  combat,  if  the  party  struck  by  a  blow  dies,  though  death  were  not  intended,  the 
person  giying  the  blow  is  guilty  of  either  murder  or  manslughter. " 

The  evidence  in  this  case  shows  that  the  two  participants  in  the  fight,  after  the 
combat  had  progressed  for  a  time  during  which  the  deceased  received  a  blow  on  the 
nose,  resumed  fighting.  While  it  is  proved  that  the  accused  then  asked  the  deceased 
if  he  had  enough,  yet  he  did  not  retreat,  but  evidently  stood  his  ground  waiting  for 
the  deceased  to  resume  the  encounter.  He  did  not  retreat  nor  did  he  plainly  and 
bona  fide  indicate  to  the  deceased  that  he  intended  to  withdraw  from  any  further 
participation  in  the  affray.  He  did  none  of  these  things,  but  stood  there  waiting, 
and  when  the  deceased  again  advanced  to  the  fight  he  engaged  in  the  final  round, 
which  resulted  in  the  blow  that  caused  the  deceased's  death. 

In  the  Law  of  Crimes  (Clark  and  Marshall,  v.  1,  p.  620)  it  is  said: 

"  One  who  commits  an  assault  without  malice,  or  otherwise  provokes  a  difficulty 
without  malice,  and  thereby  brings  on  a  conflict,  may  withdraw  from  the  conflict 
and  if  he  does  so  in  good  faith,  and  in  such  an  unequivocal  manner  as  to  show  his 
adversary  that  he  desires  to  withdraw  and  his  adversary  follows  him  and  attempts 
to  kill  him  or  do  him  great  bodily  harm,  he  has  the  same  right  of  self-defense  as 
if  he  had  not  originally  been  the  aggressor.  If,  however,  he  does  not  withdraw,  or 
offer  to  withdraw,  he  can  not  successfully  plead  self-defense,  but  will  be  guilty  of 
manslaughter  at  least. " 

In  Wallace  v.  United  States  (162  U.  S.,  466,  472)  the  court's  opinion  contained  the 
following  as  to  the  right  of  self-defense  in  doing  an  unlawful  act,  quoting  approv- 
ingly from  Reed  v.  State  (11  Tex.  App..  509): 

"It  may  be  divided  into  two  general  classes,  to  wit,  perfect  and  imperfect  right  of 
self-defense.  A  perfect  right  of  self-defense  can  only  obtain  and  avail  where  the  party 
pleading  it  acted  from  necessity  and  was  wholly  free  from  wrong  or  blame  in  occasion- 
ing or  producing  the  necessity  which  required  his  action.  If,  however,  he  was  in  the 
wrong — if  he  was  himself  violating  or  in  the  act  of  violating  the  law— and  on  account 
of  his  own  wrong  was  placed  in  a  situation  wherein  it  became  necessary  for  him  to 
defend  himself  against  an  attack  made  upon  himself,  which  was  superinduced  or 
created  by  his  own  wrong,  then  the  law  justly  limits  his  right  of  self-defense  and 
regulates  it  according  to  the  magnitude  of  his  own  wrong.  Such  a  state  of  case  may 
be  said  to  illustrate  and  determine  what  in  law  would  be  denominated  the  imperfect 
right  of  self-defense.  Whenever  a  party  by  his  own  wrongful  act  produces  a  condition 
of  things  wherein  it  becomes  necessary  for  his  own  safety  that  he  shall  take  life  or  do 
serious  bodily  harm,  then  indeed  the  law  wisely  imputes  to  him  his  own  wrong  and 
its  consequences,  to  the  extent  that  they  may  and  should  be  considered  in  determining 
the  grade  of  offense,  which  but  for  such  acts  would  never  have  been  occasioned. 
*  *  *  How  far  and  to  what  extent  he  will  be  excused  or  excusable  in  law  must 
depend  upon  the  nature  and  character  of  the  act  he  was  committing  and  which  pro- 
duced the  necessity  that  he  should  defend  himself.  When  his  own  original  act  was 
in  violation  of  law,  then  the  law  takes  that  fact  into  consideration  in  limiting  his 
right  of  defense  and  resistance  whilst  in  the  perpetration  of  such  unlawful  act.  If  he 
was  engaged  in  the  commission  of  a  felony,  and,  to  prevent  its  commission  the  party 
seeing  it  or  about  to  be  injured  thereby  makes  a  violent  assault  upon  him,  calculated 
to  produce  death  or  seriously  bodily  harm,  and  in  resisting  such  attack  he  slays  his 


356  MANSLAUGHTER. 

assailant,  the  law  would  impute  the  original  wrong  to  the  homicide  and  make  it 
murder.  But  if  the  original  wrong  was  or  would  have  been  a  misdemeanor,  then  the 
homicide  growing  out  of  or  occasioned  by  it,  though  in  self-defense  from  any  assault 
made  upon  him  would  be  manslaughter  under  the  law. " 

In  Allen  v.  United  States  (164  U.  S.,  497,  498)  the  court  say: 

"  It  is  well  settled  by  the  authorities  that  mere  words,  however  aggravating,  are 
not  sufficient  to  reduce  the  crime  from  murder  to  manslaughter. 

"  It  is  clear  that  to  establish  a  case  of  justifiable  homicide  it  must  appear  that  some- 
thing more  than  an  ordinary  assault  was  made  upon  the  prisoner;  it  must  also  appear 
that  the  assault  was  such  as  would  lead  a  reasonable  person  to  believe  that  his  life 
was  in  peril." 

It  does  not  appear  from  the  evidence  that  the  accused  considered  his  life  was  in 
peril,  but  instead  he  was  a  much  larger  man  than  the  deceased,  and  was  smiling  and 
cool.  He  was  not  pursued  by  the  deceased,  nor  did  he  endeavor  to  retreat  as  far  as 
he  could. 

The  following  remarks  are  taken  from  Archbold's  Criminal  Practice  and  Pleading 
(7th  Ed.,  v.  1,  pp.  794-796): 

"And  the  true  criterion  between  them  is  stated  to  be  this:  When  both  parties  are 
actually  combating  at  the  time  the  mortal  stroke  is  given,  the  slayer  is  guilty  of  man- 
slaughter; but  if  the  slayer  has  not  begun  to  fight  or  (having  begun)  endeavors  to  de- 
cline any  further  struggle  and  afterwards,  being  closely  pressed  by  his  antagonist, 
kills  him  to  avoid  his  own  destruction,  this  is  homicide  excusable  by  self-defense. 
(4  Bla.  Com.,  184.) 

"In  all  cases  of  homicide  excusable  by  self-defense  it  must  be  taken  that  the  attack 
was  made  upon  a  sudden  occasion  and  not  premeditated  or  with  malice;  and  from  the 
doctrine  which  has  been  above  laid  down  it  appears  that  the  law  requires  that  the 
person  who  kills  Another  in  his  own  defense  should  have  retreated  as  far  as  he  con- 
veniently or  safely  could,  to  avoid  the  violence  of  the  assaiilt,  before  he  turned  upon  his 
assailant  (Pierson».  State,  12  Ala.,  149),  and  that  not  fictitiously  or  in  order  to  watch  his 
opportunity,  but  from  a  real  tenderness  of  shedding  his  brother's  blood.  For  in  no  case 
will  a  retreat  avail  if  it  be  feigned,  in  order  to  get  an  opportunity  or  interval  to  enable 
the  party  to  renew  the  fight  with  advantage.  (1  Hale;  481,  483;  Fost.,  277;  4  Bla. 
Com.,  185.)  The  party  assaulted  must,  therefore,  flee,  as  far  as  he  conveniently  can; 
either  by  reason  of  some  wall,  ditch,  or  other  impediment,  or  as  far  as  the  fierceness 
of  the  assault  will  permit  him,  for  it  may  be  so  fierce  as  not  to  allow  him  to  yield  a  step 
without  manifest  danger  of  his  life  or  great  bodily  harm,  and  then  in  his  defense  he 
may  kill  his  assailant  instantly.  (1  Hale,  483;  4  Bla.  Com.,  185.)  *  *  * 

"In  order,  however,  to  justify  a  killing  on  the  ground  of  necessity,  the  person  com- 
mitting the  act  must  be  without  fault  in  bringing  about  that  necessity.  (Viaden  v.  Com., 
12  Gratt.,  717;  Haynes  v.  The  State,  17  Geo.,  465.) 

****** 

"With  regard  to  the  nature  of  the  necessity,  it  may  be  observed  that  the  party 
killing  can  not,  in  any  case,  substantiate  his  excuse  if  he  kill  his  adversary  even  after 
a  retreat  unless  there  were  reasonable  ground  to  apprehend  that  he  would  otherwise 
have  been  killed  himself.  (Fost.,  273,  275,  289;  4  Bla.  Com.,  184.) 

*  *  *  *  *  * 

"All  writers  concur  in  the  language  of  Blackstone  (3  Blk.  Com.,  4)  that  to  warrant 
its  exertion  at  all  the  defender  must  be  forcibly  assaulted.  He  may  then  repel  force 
by  force,  because  he  can  not  say  to  what  length  of  rapine  or  cruelty  the  outrage  may 
be  carried  unless  it  were  admissible  to  oppose  one  violence  with  another.  But  care 
must  be  taken  that  the  resistance  does  not  exceed  the  bounds  of  mere  defense  and 
prevention,  for  then  the  defender  would  himself  become  the  aggressor.  (See  People 
v.  McLeod,  1  Hill  N.  Y.  Rep.,  377;  U.  S.  v.  Vigol,  2  Dallas  Rep.,  346;  Com.  v.  Crauss, 
3  Am.  L.  J..299.)" 

The  following  from  the  Cyclopedia  of  Law  and  Procedure  (v.  21,  p.  812),  is  also 
pertinent: 

"  Voluntary  participation  in  contest  or  mutual  combat. — Where  a  person  voluntarily 
participates  in  a  contest  or  mutual  combat  for  purposes  other  than  protection,  he  can 
not  justify  or  excuse  the  killing  of  his  adversary  in  the  course  of  such  conflict  on  the 
ground  of  self-defense  unless  before  the  homicide  is  committed  he  withdraws  and  en- 
deavors in  good  faith  to  decline  further  conflict  even  though  retreating  would  in- 
crease his  peril." 

Likewise  the  following  (Ib.,  p.  811): 

"  Necessity  of  withdrawal  arid  notice.— The  aggressor's  mere  willingness  or  intent  to 
withdraw  is  not  sufficient;  he  must  both  endeavor  to  really  and  in  good  faith  withdraw 


MANSLAUGHTER.  357 

from  the  combat  and  must  also  in  some  manner  make  known  his  intention  to  his 
adversary." 

So  also  the  following  (Ib.,  p.  813): 

"Imminence  of  danger.— (1)  In  general.— The  danger  must  also  be  either  actual, 
present,  and  urgent,  or  such  as  the  slayer  believes  on  reasonable  grounds  to  be  so 
urgent  and  pressing  that  it  is  necessary  for  him  to  kill  in  order  to  save  himself  from 
immediate  death  or  great  bodily  harm  and  that  there  is  no  other  reasonable  means  of 
escape." 

The  following  also  has  an  important  bearing  on  the  case,  as  showing  the  futility 
of  se  defendendo  under  the  circumstances  of  this  case  (Ib.,  p.  826): 

"Renewal  of  contest. — Where  after  the  original  difficulty  has  ceased  or  defendant 
has  an  opportunity  of  declining  further  combat  and  he  instead  continues  the  struggle 
or  renews  the  combat,  he  becomes  the  aggressor,  irrespective  of  whether  he  was  at 
fault  in  bringing  on  the  original  difficulty  and  is  not  justified  or  excused  in  killing  in 
self-defense." 

In  Bishop  on  Criminal  Law,  pages  346-7,  it  is  stated: 

"  Lord  Hale  says:  '  Regularly  it  is  necessary  that  the  person  that  kills  another  in 
his  own  defense  fly  as  far  as  he  may  to  avoid  the  violence  of  the  assault,  before  he 
turns  upon  his  assailant;  for  though  in  cases  of  hostility  between  two  nations  it  is 
reproach  and  piece  of  cowardice  to  fly  from  an  enemy,  yet,  in  cases  of  assaults  and 
affrays  between  subjects  under  the  same  law,  the  law  owns  not  any  such  point  of 
honor,  because  the  king  and  his  laws  are  to  be  the  vindices  injuriarum,  and  private 
persons  are  not  trusted  to  take  capital  revenge  one  of  another.'  But  he  goes  on  to 
show  that  this  doctrine  can  not  apply  where  flight  is  impossible;  and,  indeed,  he 
explains,  as  do  all  the  old  writers  on  this  branch  of  our  law,  that  the  right  to  take  the 
assailant's  life  is  only  to  be  exercised  when  no  other  means  of  escape  are  open.  The 
proposition  is  admirably  laid  down  in  a  New  York  case  that,  when  a  man  expects  to 
be  attacked,  the  right  of  self-defense  does  not  arise  until  he  has  done  everything  to 
avoid  the  necessity  of  using  it;  and  this  proposition  seems  clearly  to  apply  to  all  cir- 
cumstances of  the  nature  of  those  now  under  consideration.  One  must  not  have 
brought  on  himself  the  necessity  which  he  sets  up  in  his  own  defense. 

"  SEC.  565,  649.  There  is  another  class  of  circumstances  to  which  the  doctrine  of  the 
last  section  is  more  frequently  applied.  Two  or  more  persons,  engage  in  a  mutual 
combat,  without  any  original  intent  to  proceed  to  extreme  measures;  or,  after  an  as- 
sailant has  been  met  by  his  adversary,  he  becomes  weary  of  a  conflict  which  is  likely 
to  be  more  serious  than  he  anticipated,  or  too  much  for  him  to  withstand;  and  here, 
if  one  of  the  combatants,  already  in  the  wrong,  either  as  a  beginner  or  continuer  of 
the  fight,  wishes  to  retrace  his  error,  he  must  retreat.  And  though,  contrary  to  his 
original  expectation,  he  finds  himself  so  hotly  pressed  as  renders  the  killing  of  the 
other  necessary  to  save  his  own  life,  he  is  guilty  of  a  felonious  homicide  if  he  kills  him, 
unless  he  first  actually  puts  into  exercise  this  duty  of  withdrawing  from  the  place.  Lord 
Hale  expressly  states  the  following  case:  'If  A  assaults  B  first,  and  upon  that  assault 
B  reassaults  A,  and  that  so  fiercely  that  A  can  not  retreat  to  the  wall  or  other  non  ultra, 
without  danger  of  his  life;  nay,  though  A  fall  upon  the  ground  upon  the  assault  of  B, 
and  then  kills  B;  this  shall  not  be  interpreted  to  be  se  defendendo,  but  to  be  murder, 
or  simple  homicide,  according  to  the  circumstances  of  the  case;  for  otherwise  we 
should  have  all  cases  of  murders  or  manslaughters  by  way  of  interpretation  turned 
into  se  defendendo.'" 

As  stated  in  State  v.  Spears  (9  Am.  Cr.  Rep.,  624): 

"If  the  defendant  acts  from  fear  of  death  and  great  bodily  harm,  and  kills  another, 
lie  must  be  free  from  fault  in  bringing  on  the  difficulty.  ( Kerr,  Horn. ,  201. )  In  cases 
of  mutual  combat  both  parties  are  the  aggressors,  and  if  one  is  killed  it  will  be  man- 
slaughter, at  least,  unless  the  survivor  can  prove  that  before  the  mortal  stroke  was 
given  he  had  refused  any  further  combat,  and  retreated  as  far  as  he  could  with  safety,  and 
that  he  killed  his  adversary  from  necessity  to  avoid  his  own  destruction  or  great  bodily  harm 
to  him." 

The  foregoing  is  supported  by  the  authority  of  the  decisions  of  many  eminent 
courts.  And  again,  in  Dolan  v.  State  (6  Cr.  Rep.,  524),  it  was  held  that — 

"  Where  parties  fight  and  separate,  and  afterwards  meet,  and  one  slays  the  other 
he  is  guilty  of  criminal  homicide  if  he  could,  at  any  time  from  the  beginning  of  the 
first  to  the  end  of  the  second  difficulty,  have  reasonably  withdrawn  from  or  avoided 
the  difficulty  without  immediate  danger  to  himself,  and  he  can  not  set  up  self-defense 
until  he  has  done  everything  reasonable  in  his  power  to  prevent,  abandon,  and  decline 
any  further  contest  with  his  adversary." 


358  MANSLAUGHTER. 

There  is  no  evidence  in  this  case  to  show  that  the  accused  was  in  "fear  of  death  or 
great  bodily  harm,"  and  there  t*  evidence  that  he,  in  fact,  brought  on  the  difficulty. 
He  did  not  refuse  further  combat  before  the  mortal  blow  was  given,  abandon,  and 
decline  further  fighting.  He  did  not  retreat  as  far  as  he  could  with  safety,  and  it  is 
not  shown  that  he  struck  the  deceased  the  fatal  blow  to  avoid  his  own  destruction. 

In  view  of  all  the  foregoing  considerations,  and  quotations  from  authorities/it  ap- 
pears that  the  specification  should  have  been  found  proved  and  the  accused  of  the 
charge  guilty. 

However,  should  the  court  still  believe  nevertheless  that  the  specification  in  its 
present  form  is  not  fully  proved  and  that  the  accused  is  not  guilty  of  the  charge  of 
manslaughter,  yet  it  still  possesses  ample  authority  to  find  the  specification  proved 
In  part  and  the  accused  guilty  in  a  less  degree  than  charged,  as  of  "Conduct  to  the 
prejudice  of  good  order  and  discipline,"  and  to  adjudge  a  sentence  commensurate  as 
.the  facts  warrant. 

The  court  revoked  its  former  finding  and  substituted  therefor  the  finding  of  guilty 
of  involuntary  manslaughter.  C.  M.  O.  23, 1911,  2-12. 

MANUAL,  FOB  GOVERNMENT  OF  NAVAL,  PRISONS,  PRISON  SHIPS,  AND 
DISCIPLINARY  BARRACKS.    C.  M.  O.  49,  1915,  21. 

MANUAL  FOR  THE  MEDICAL  DEPARTMENT. 

1.  Regulations— Full  force  and  effect  of.    C.  M.  O.  12,  1915,  11. 

MANUAL  GOVERNING  THE  TRANSPORTATION  OF  ENLISTED  MEN. 

1.  Regulations— Full  force  and  effect  of.    C.  M.  O.  12,  1915,  11. 

MANUAL  LABOR. 

1.  Officers— Ordered  to  perform.    See  ORDERS,  41. 

MANUAL  OF  INTERIOR  GUARD  DUTY,  U.  S.  ARMY,  1914. 

1.  Judicial  notice.    See  JUDICIAL  NOTICE,  6. 

MARINE  BAND.    See  BANDS,  1-3. 

MARINE  BRIGADES.   See  CONVENING  AUTHORITY,  27;  COURTS  OF  INQUIRY,  10;  MARINE 
CORPS,  10. 

MARINE  CORPS. 

1.  Absence,  unauthorized— Making  good  time  lost  by.    See  MARINE  CORPS,  30. 

2.  Appeal  to  department— By  officer  to  be  given  a  higher  place  on  the  Navy  list.    See 

MARINE  CORPS,  05,  73. 

3.  Applicants  for  enlistment— Prosecution  of.    See  APPLICANTS  FOR  ENLISTMENT,  2; 

ENLISTMENTS,  18;  MARINE  CORPS,  29. 

4.  Appointments  to  second  lieutenant — May  be  made  from  civil  life.    See  APPOINT- 

MENTS, 20. 

"  The  law  does  not  contemplate  the  issuance  of  probationary  appointments  to  former 
officers  of  the  Marine  Corps  reinstated  as  second  lieutenants."  File  13261-544:1. 
J.  A.  G.,  Oct.  10. 1916.  See  also  MARINE  CORPS,  71. 

In  the  cases  01  reinstatement  of  former  officers  as  second  lieutenants,  under  the  act 
of  August  29,  1916,  boards  may  be  instructed  that  the  professional  records  of  such 
candidates  may  be  accepted  as  evidence  of  the  candidates'  professional  qualifications, 
provided  that  the  records  are  such  as  to  indicate  that  the  candidates  in  question  are 
properly  professionally  qualified  to  perform  the  duties  of  the  grade  to  which  they 
seek  appointment.  File  26521-151.  Sec.  Navy,  Sept.  9, 1916. 
5  Same— From  enlisted  men.  See  APPOINTMENTS,  22. 

Army— Marine  serving  with  Army  committed  offense  and  tried  by  naval  court-martial. 

See  MARINES  SERVING  WITH  ARMY,  7. 

Same— Marines  serving  with.    See  MARINES  SERVING  WITH  ARMY. 
Army  Transport— Status  of  Marines  on.    See  ARMY,  7. 
Brigade— Marine  Brigade,  P.  I.    See  JURISDICTION,  77. 
10— Same— Convening  of  general  courts-martial  and  courts  of  inquiry  by  Brigade  Com- 
manders.   See  CONVENING  AUTHORITY,  27;  COURTS  OF  INQUIRY,  10. 

11.  Brigadier  General— Grade  of,  established  by  Act,  Aug.  29,  1916  (39  Stat.  609.)    See 

File  20521-148,  J.  A.  G.,  Aug.  18,  1916;  26521-148;  28687-7. 

12.  Bureau— The  Marine  Corps  is  not  one  of  the  bureaus  of  the  Navy  Department.    It 

is  a  part  of  the  Naval  Establishment,  but  it  is  not  a  part  of  the  Navy  Department  as 
established  at  the  seat  of  the  Government:  it  is  under  the  supervision  of  an  executive 


MARINE   CORPS.  359 

f  department,  but  that  relation  to  the  department  is  not  the  same  as  a  part  of  it.  (11 
Comp.  Dec.  558.  See  also  28  Op.  Atty.  Gen.  487)  File  4600,  Apr.  10,  1906;  21686, 
Apr.  11.  1906;  6770-12,  J.  A.  G.,  May  8,  1912. 

13.  Campaign  Badges — Revocation  of  by  Major  General  Commandant.    See  CHINA 

CAMPAIGN  BADGES,  1. 

14.  Clerks — The  employment  of  enlisted  men  of  the  Marine  Corps  on  clerical  duty  at 

Headquarters,  Marine'Corps,  is  permitted  by  law.  File  4600,  Apr.  10,  1906;  21686, 
Apr.  11, 1906. 

15.  Clerks  to  Assistant  Paymasters.    See  PAYMASTER'S  CLERKS,  MARINE  CORPS. 

16.  Command — Authority  of  a   Marine  officer  commanding  a  battalion  afloat.    See 

JURISDICTION,  75,  76. 

17.  Same — Naval  station.    See  JURISDICTION,  86. 

18.  Commandant.   See  MARINE  CORPS,  47-50. 

19.  Commissions— Change  of  date  of  retired  officers'  commissions   requested.    See 

COMMISSIONS,  17. 

20.  Same— Date  of.    See  COMMISSIONS,  14,  17,  18. 

21.  Courts  of  Inquiry— Convened  by  Brigade  Commanders.    See  CONVENING  AUTHORITY, 

27;  COURTS  OF  INQUIRY,  10;  MARINE  CORPS,  10. 

22.  Court-Martial  Orders— Indorsement  of  Major  General  Commandant  published  in. 

C.  M.  O.  24,  1914,  24;  14,  1915,  2;  19,  1915,  2.    Seealso  C.  M.  O.  31,  1915,  7. 

23.  Death  Gratuity.   See  DEATH  GRATUITY,  21,  22. 

24.  Deposits.   See  DEPOSITS,  3;  MARINE  CORPS,  88. 

25.  Desertion — As  a  branch  of  the  United  States  naval  service,  marines  are  subject 

to  the  same  laws  regarding  desertion  as  enlisted  men  of  the  other  branches  of  the 
service.  File  5621-4,  Sec.  Navy,  Apr.  10.  1907. 

26.  Detentloners— Clothing  allowances  for.    File  28267-126,  J.  A.  G.,  Mar.  30, 1912.    See 

also  DETENTIONERS,  2. 

27.  Enlisted  men— Strength  of  Marine  Corps.    See  "MARINE  CORPS,  100-102. 

28.  Same — May  legally  be  employed  on  clerical  duty  at  Headquarters.    See  MARINE 

CORPS,  14. 

29.  Enlistments,   applicants   for— Fraudulently    receiving   transportation.    See    File 

7657-180  and  180:1,  Sec.  Nav.,  June  4, 1913.  See  also  APPLICANTS  FOR  ENLISTMENT,  2; 
ENLISTMENTS,  18. 

30.  Enlistment  in— Making  good  time  lost  by  unauthorized  absence— The  Comptroller 

of  the  Treasury  has  held  that  the  act  of  May  11,  1908  (35  Stat.  109)  stating  that  an 
enlistment  in  the  Army  shall  not  be  regarded  as  complete  until  the  soldier  shall  have 
made  good  time  lost  during  an  enlistment  period  by  unauthorized  absences  exceeding 
one  day,  applies  to  the  Marine  Corps. 

But  a  man  who  enlisted  prior  to  the  passage  of  the  above  act  and  who  is,  by  absence, 
not  regarded  as  a  deserter,  can  not  be  held  in  service  to  make  good  the  time  lost  by 
unauthorized  absence.  He  may,  however,  be  tried  for  the  offense.  File  26287-458, 
J.  A.  G.,  July  2,  1910,  p.  2.  See  also  ENLISTMENTS,  11. 

31.  Examining  Boards.     See  MARINE  EXAMINING  BOARDS;  PROMOTION. 

32.  Extension  of  enlistments.    See  EXTENSION  OF  ENLISTMENTS;  MARINE  CORPS,  96. 

33.  "Field  duties" — The  paramount  duties  of  the  Marine  Corps  are  "field  duties." 

File  28687-14,  J.  A.  G.,  Dec.  14,  1916,  p.  3. 

34.  Floating  battalion— Jurisdiction.    See  JURISDICTION.  75,  76. 

35.  General  courts-martial— Convening  of  by  brigade  commanders.    See  CONVENING 

36.  General  officers— Number  authorized  by  Act,  Aug.  23,  1916  (39  Stat.,  609).    File 

28687-1. 

37.  Good  conduct  medals— Extension  of  enlistments.    File  3980-1255.    See  also  GOOD 

CONDUCT  MEDALS. 

38.  Grades,  overfilling  of.    See  MARINE  CORPS,  66. 

39.  Guard  duty.    See  MANSLAUGHTER,  9. 

40.  Headquarters— Status  of.    See  MARINE  CORPS,  12. 

41.  Increase  of  officers— May  not  be  obtained  by  implication.    See  STATUTORY  CON- 

STRUCTION AND  INTERPRETATION,  47. 

42.  Jurisdiction — By  Army  summary  court  over  Marines  traveling  on  Army  transports. 

See  ARMY,  7. 

43.  Same— Marines  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

44.  Same — Marine  battalion  afloat.    See  JURISDICTION.  75,  76. 

45.  Same— Marines  on  naval  transports.    See  JURISDICTION,  75,  76. 

46.  Mail  clerks,  Navy— Detail  of  from  Marine  Corps.    File  26254-1961,  J.  A.  G.,  Feb.  12, 

1916.    See  also  MAIL  CLERKS. 


360  MARINE    CORPS. 

47.  Major  General  Commandant — The  retirement  of  a  Commandant  of  the  Marine 

Corps  cieates  a  vacancy  in  that  office  which  can  be  filled  only  by  appointment  of  an 
officer  of  the  Marine  Corps  on  the  active  list,  by  and  with  the  advice  and  consent  of 
the  Senate,  or  under  an  ad  interim  commission.  A  retired  officer  cannot  be  detailed 
to  perform  the  duties  nor  can  an  officer  on  the  active  list  be  detailed  to  temporarily 
perform  the  duties  of  commandant,  but  can  sign  orders  and  correspondence  "By 
direction  of  the  Secretary  oi  the  Navy."  15  J.  A.  G.  25,  Nov.  15, 1910.  See  also  File 
27231-23:1;  Op.  Atty.  Gen.,  Nov.  30,  1910;  MARINE  CORPS,  50. 

48.  Same — As  the  tenure  of  office  of  the  Commandant  of  the  Marine  Corps  terminates 

upon  retirement  of  the  incumbent  (Act  July  1,  1902,  32  Stat.  686)  that  officer  could 
not  be  ordered  to  active  duty  as  Commandant  after  he  is  retired,  since  the  office  can 
only  be  filled  by  the  appointment  of  an  officer  on  the  active  list.  (Act  May  13, 1908, 
35  Stat.  155). 

No  provision  is  made  by  law  for  the  temporary  appointment  of  a  Commandant  of 
the  Marine  Corps. 

But  the  office  could  remain  vacant  until  the  President  was  ready  to  appoint  an 
eligible  officer  therefor,  by  and  with  the  advice  and  consent  of  the  Senate.  15  J.  A. 
G.  28,  Dec.  1, 1910.  See  also  MARINE  CORPS,  50. 

49.  Same— The  Act  of  Dec.  19,  1913  (38  Stat.,  241)  designates  the  officer  holdini;  the  office 

of  Commandant  of  the  Marine  Corps  as  "Commandant  of  the  Marine  Corps;"  (File 
3980-1075,  J.  A.  G.,  Apr.  5,  1915)  but  the  Act  of  Aug.  29,  1916  (39  Stat.,  609)  desig- 
nates him  as  "Major  General  Commandant." 

The  proper  designation  of  the  Major  General  Commandant  in  official  correspondence 
is  "The  Major  General  Commandant,  Marine  Corps."  File  20400-68,  Sec.  Navy 
Sept.  6, 1916.  See  also  DESIGNATIONS. 

50.  Same— Act  of  Dec.  19,  1913  (38  Stat.,  241)  provides  that  when  a  vacancy  shall  exist 

in  the  position  of  Commandant  of  the  Marine  Corps  the  President  may  appoint  to 
such  position,  by  and  with  the  advice  of  the  Senate,  an  officer  of  the  Marine  Corps 
on  the  active  list  not  below  the  grade  of  field  officer,  who  shall  hold  office  as  such 
Commandant  for  a  term  of  four  years,  unless  sooner  relieved ,  and  who,  while  so  serving 
shall  have  the  rank,  pay,  and  allowances  of  a  major  general  in  the  Army;  and  any  officer 
appointed  under  the  provisions  of  this  Act  who  shall  be  retired  from  the  position  of 
Commandant  of  the  Marine  Corps,  in  accordance  with  the  provisions  of  sections 
1251,  1622,  and  1623,  Revised  Statutes  of  the  United  States,  or  by  reason  of  age  or 
length  of  service,  shall  have  the  rank  and  retired  pay  of  a  major  general;  if  retired  for 
any  other  reason,  he  shall  be  placed  on  the  retirediist  of  officers  of  the  grade  to  which 
he  belonged  at  the  time  of  his  retirement:  Provided,  That  an  officer  serving  as  Com- 
mandant shall  be  carried  as  an  additional  number  in  his  grade  while  so  serving,  and 
after  his  return  to  duty  in  his  grade  until  said  grade  is  reduced  to  the  number  author- 
ized by  law:  Provided  further,  That  nothing  herein  contained  shall  operate  to  increase 
or  reduce  the  total  number  of  officers  in  the  Marine  Corps  now  provided  by  law. 
See  File  26255-300,  J.  A.  G.,  Dec.  22.  1913.  The  Act  of  Aug.  29,  1916  (39  Stat.  609) 
amends  the  above  law  by  providing  that  appointments  herealter  made  to  the  position 
of  Major  General  Commandant  under  the  provisions  of  the  Act  of  Dec.  19, 1913  (38 
Stat.  241)  shall  be  made  from  officers  of  the  active  list  of  the  Marine  Corps  not 
below  the  rank  of  colonel.  See  File  26521-148,  J.  A.  G.,  Aug.  18, 1916;  26521-148;  for 
promotion  of  officer  while  detailed  as  Major  General  Commandant,  see  PBOMO- 
TION,  83. 

51.  Marine  examining  boards.    See  MARINE  EXAMINING  BOARDS. 

52.  Marines  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

53.  "  Marine  summary  court-martial " — There  is  no  tribunal  known  to  the  law  as  a 

marine  court-martial.    Circular  Sec.  Navy,  July  5,  1877.    See  also  COURT,  114. 

54.  Midshipmen — Appointment  of  midshipmen  to  Marine  Corps  as  second  lieutenants. 

File  13261-486,  Sec.  Navy,  June  8,  1916.  See  also  the  Act  of  August  29, 1916  (39  Stat. 
611)  which  provides  that  no  midshipman  at  the  United  States  Naval  Academy  or 
cadet  at  the  United  States  Military  Academy  who  fails  to  graduate  therefrom  shall 
be  eligible  for  appointment  as  a  commissioned  officer  in  the  Marine  Corps  until  after 
the  graduation  of  the  class  of  which  he  was  a  member.  See  also  MIDSHIPMEN,  43, 83. 

55.  Same— Enlisted  men  of  the  Marine  Corps  may  be  appointed.    See  MARINE  CORPS,  88; 

MIDSHIPMEN,  52. 

56.  Mounted  marine  officers.    See  ALLOWANCES,  12. 

57.  Naval  Academy— Enlisted  men  of  the  Marine  Corps  may  be  appointed  to.    See 

MARINE  CORPS,  88;  MIDSHIPMEN,  52. 

58.  Same— The  Act  of  July  9,  1913  (38  Stat.  103)  "makes  the  Naval  Academy  in  effect  a 

training  school  for  the  Marine  Corps  as  fully  as  for  the  Navy  proper."  File  5252-66, 
J.  A.  G.,  May  12,  1915. 


MARINE    CORPS.  361 

59.  Naval  Reserve — Service  in  Marine  Corps  may  be  included  in.    See  NAVAL  RESERVE,  1. 

60.  Officers— Midshipmen  eligible  as.    See  MIDSHIPMEN,  53,  55,  66. 

61.  Same — Appointments  may  be  made  from  civil  life.    See  APPOINTMENTS,  20. 

62.  Same — Enlisted  men  of  the  Navy,  as  well  as  noncommissioned  officers,  may  be  ap- 

pointed as  second  lieutenants.    See  APPOINTMENTS,  22. 

63.  Same — Rank  and  precedence.    See  PRECEDENCE,  14-18. 

64.  Same — Resigned  midshipman's  status.    See  MARINE  CORPS,  54. 

65.  Same— Request  rearrangement  of  positions  on  Navy  list.    See  Ffle  6817-02;  11130-34, 

Sept.  2,  1916.  See  also  File  1957-03,  Sec.  Navy,  Feb.  27,  1903;  8171-03,  J.  A.  G.,  Oct. 
13,  1903;  7151-03,  J.  A.  G.,  1903:  MARINE  CORPS,  73;  COMMISSIONS,  14-18. 

66.  Overfilling  grades— The  Secretary  of  the  Navy  declined  to  recommend  the  appoint- 

ment of  an  additional  second  lieutenant  in  the  Marine  Corps  while  said  grade  con- 
tained the  full  number  allowed  by  law,  although  informed  by  the  Major  General 
Commandant,  Dec.  20,  1913  (File  372),  that  the  resignation  of  a  first  lieutenant  had 
been  accepted  to  take  effect  Jan.  1,  1914,  which  would  cause  a  vacancy  "in  the 
commissioned  personnel  of  the  Marine  Corps;"  at  the  same  time  the  Major  General 
Commandant  was  directed  to  present  the  matter  again  to  the  department  "when  a 
vacancy  occurs  in  the  grade  of  second  lieutenant."  File  13261-486,  Sec.  Navy,  June  3, 
1916,  quoting  File  942-310,  Bu.  Nav.,  Sec.  Navy,  Dec.  29, 1913,  with  approval.)  From 
the  above  it  will  be  seen  that  where  the  number  of  officers  allowed  in  a  given  grade, 
as  in  the  case  of  a  second  lieutenant,  is  fixed  by  law,  this  is  a  provision  of  statute 
which  is  binding  upon  the  department,  and  not  a  rule  of  the  department  which  may 
be  waived.  Accordingly  the  department  is  without  power  to  authorize  the  ap- 
pointment of  officers  in  the  grade  of  second  lieutenant  in  excess  of  the  number  fixed 
by  law,  even  though  the  result  would  over-fill  said  grade  "at  most  only  for  a, period 
of  a  few  days."  File  13201-486,  Sec.  Navy,  June  8,  1916.  See  also  PROMOTION,  109. 

67.  Pay  clerks.    See  PAYMASTERS'  CLERKS,  MARINE  CORPS. 

68.  Porto  Rico — A  citizen  of  Porto  Rico  is  not  eligible  for  appointment  as  a  second  lieuten- 

ant in  the  Marine  Corps.  File  6730-04.  Seealso  Downes  v.  Bidwell,  182  U.  S.  244; 
CITIZENSHIP,  31;  PORTO  'Rico,  4. 

69.  Precedence — When  Marines  are  landed  with  bluejackets.    See  MARINE  CORPS,  81. 

Precedence  between  officers  of  Navy  and  Marine  Corps.    See  PRECEDENCE,  16-18. 

70.  "Primary"  relation— Finally  settled  to  be  with  Navy.    See  MARINES  SERVING  WITH 

ARMY,  7. 

71.  Probationary  second  Heutenants^-The  law  (act  of  Aug.  29,  1916, 39  Stat.  610)  does 

not  contemplate  the  issuance  of  probationary  appointments  to  former  officers  of  the 
Marine  Corps  reinstated  as  second  lieutenants,  after  successfully  passing  the  required 
examinations,  and  the  purpose  of  Congress  to  this  effect  is  manifested  by  the  differ- 
ence in  the  nature  of  the  examinations  prescribed  for  former  officers  as  compared 
with  those  of  original  appointees.  File  13261-544:1,  J.  A.  G.,  Oct.  10,  1916.  See 
Stirling  v.  U.  S.  (48  Ct.  Cls.,  386)  as  to  difference  between  "original  appointment" 
and  "reinstatement." 

The  second  lieutenants  in  question  will  undoubtedly  be  commissioned  officers  in 
the  Marine  Corps,  the  same  as  any  other  second  lieutenant  in  said  corps,  with  the 
exception  that  they  must  serve  the  probationary  period  mentioned  in  the  law,  and 
the  Secretary  of  the  Navy  is  authorized  to  revoke  their  appointments  at  any  time 
during  said  probationary  period.  The  Secretary  of  the  Navy  is  the  administrative 
officer  specifically  designated  in  the  law  as  the  authority  by  whom  the  appointments 
may  be  revoked.  File  26521-152,  J.  A.  G.,  Sept.  22, 1916. 

These  second  lieutenants  are,  when  appointed,  to  be  commissioned  officers  in  the 
Marine  Corps;  the  Secretary  of  the  Navy  may  legally  sign  their  commissions;  but 
"it  is  proper"  that  the  commissions  should  declare  the  act  to  be  the  act  of  the 
President  performed  by  the  Secretary  of  the  Navy  as  his  representative;  it  would  also 
appear  proper  that  the  commissions  further  declare  that  they  are  for  the  probationary 
period  of  two  years.  File  26521-152,  J.  A.  G.,  Sept.  22,  1916. 

72.  Promotion  of  officers.    See  PROMOTION. 

73.  Rearrangement  of  officers  appointed  from  civil  life— "No  rearrangement  will  be 

made  of  the  officers  heretofore  appointed  to  the  Marine  Corps  from  civil  life."  (File 
1957-03,  Sec.  Navy,  Feb.  27, 1903.  See  also  File  7794-02;  Marine  Corps  file  4043-1902; 
6817-02;  1957-03.)  File  11130-34,  Sec.  Navy,  Sept.  20,1916.  See  also  COMMISSIONS, 
14-18;  MARINE  CORPS,  65;  File  11130-35,  Sec.  Navy,  Dec.  20, 1916. 

74.  Recruiting— Comments  upon  proposed  change  in  system  of  recruiting.    File  7657-94, 

Sec.  Navy,  Dec.  31,  1910;  7657-103,  J.  A.  G.,  Apr.  25,  1911;  7657-103:1,  J.  A.  G.,  June 
23,  1911;  7657-103:2,  J.  A.  G.,  July  18,  1911. 

75.  Recruiting  officer— Tried  by  general  court-martial.    C.  M.  0. 19,  1915. 


362  MARINE    CORPS. 

76.  Reserve.    See  MARINE  CORPS,  88;  MARINE  CORPS  RESERVE,  1,  2. 

77.  Retired  officers— Active  duty.    See  MARINE  CORPS,  91;  RETIRED  OFFICERS,  1,  2,  45. 

78.  Same — Request  to  change  date  of  commission.    See  COMMISSIONS,  17. 

79.  Retirement  of  officers.    See  RETIREMENT  OF  OFFICERS,  35,  36. 

80.  Retiring  Boards.    See  MARINE  RETIRING  BOARDS. 

81.  Right  of  line — "  When  companies  of  seamen  and  marines  are  united  for  battalion  drill, 

or  infantry  service  afloat  or  ashore,  the  marine  company  will  take  the  right  of  the  line. 
"The  companies  of  seamen  shall  be  formed  in  the  order  of  rank  of  the  company 
officers  according  to  the  authorized  tactics."  Circular,  Sec.  Navy,  Aug.  9,  1876. 

82.  Senior  officer  present— Action  on  records  of  summary  courts-martial.    See  SENIOR 

OFFICER  PRESENT;  SUMMARY  COURTS-MARTIAL,  22,  38. 

83.  Sentences  of  officers — Approved  by  the  Secretary  of  the  Navy  in  accordance  with 

the  recommendation  of  the  Major  General  Commandant.  C.  M.  O.  24,  1914,  24; 
14,  1915,  2;  19,  1915,  2. 

84.  Ships— Removal  of  Marines  from.    See  File  27109,  Nov.  6,  1908;  27  Op.  Atty.  Gen. 

259;  REGULATIONS,  NAVY,  3. 

85.  Staff  officers— Officers  of  the  staff  departments  of  the  Marine  Corps  are  not,  either 

from  the  inherent  nature  of  their  duties,  nor  by  training,  presumably  qualified  to 
pass  an  examination  "confined  to  problems  involving  the  higher  functions  of  staff 
duties  and  command."  File  26521-144:1,  Sec.  Navy,  July  10,  1916,  p.  4.  See  also 
PROMOTION,  180. 181. 

86.  Status  of —In  Wiikes  v.  Dinsman  (7  How.  88)  in  1849  it  was  decided  that  marines  were 

included  in  the  denomination  of  "persons  enlisted  for  the  Navy,"  as  used  in  the 
act  of  March  2, 1837,  now  embodied  in  section  1422  of  the  Revised  Statutes,  and  amend- 
,  incuts  thereto,  concerning  the  detention  of  enlisted  men  after  expiration  of  enlist- 
ment, or  their  reenlistment  abroad  to  serve  until  their  return  to  the  United  States. 
In  its  opinion  the  Supreme  Court  said: 

"This  new  law,  to  be  sure,  speaks  in  its  title  of  the  'enlistment  of  seamen;'  but  in 
the  body  of  it  provision  is  made  as  to  the  'service  of  any  person  enlisted  for  the  Navy ' 
*  *  *  though  marines  are  not,  hi  some  senses,  'seamen,'  and  their  duties  are  in 
some  respects  different,  yet  they  are,  while  employed  on  board  public  vessels,  persons 
in  the  naval  service,  persons  subject  to  the  orders  of  naval  officers,  persons  under  the 
government  of  the  naval  code  as  to  punishment,  and  persons  amenable  to  the  Navy 
Department.  Their  verv  name  of  'marines'  indicates  the  place  and  nature  of  their 
duties  generally.  And,  beside  the  analogies  of  their  duties  in  other  countries,  their 
first  creation  here  to  serve  on  board  ships  expressly  declared  them  to  be  a  part  'of 
the  crew  of  each  of  said  ships.'"  File  26280-61,  Sec.  Navy,  July  10,  1915;  5252-66, 
J.  A.  G.,  May  13,  1915;  26521-148,  J.  A.  G.,  Aug.  29,  1916,  p.  2. 

It  was  decided  by  the  Supreme  Court  in  U.  S.  v.  Dunn  (120  U.  S.  252)  in  1887 
that  service  as  an  enlisted  man  of  the  Marine  Corps  was  service  as  an  enlisted  man  ol 
the  Navy  within  the  meaning  of  the  law  then  under  consideration,  the  court  stating 
in  its  opinion: 

"It  must  be  conceded  that  the  Marine  Corps,  a  military  body  in  the  regular  service 
of  the  United  States,  occupies  something  of  an  anomalous  position,  and  is  often  spoken 
of  in  statutes  which  enumerate  'the  Army,  the  Navy  and  the  Marine  Corps,'  or 
'  the  Army  and  the  Marine  Corps, '  or  'the  Navy  and  the  Marine  Corps,'  in  a  manner 
calculated  and  intended  to  point  out  that  it  is  not  identical  witn  either  the  Army  or 
the  Navy.  And  this  argument  is  the  one  very  much  pressed  to  show  that  service 
in  the  Marine  Corps  is  not  service  in  the  Army  or  in  the  Navy.  On  the  other  hand, 
the  services  rendered  by  that  corps  are  always  of  a  military  character,  and  are  rendered 
as  a  part  of  the  duties  to  be  performed  by  either  the  Army  or  the  Navy.  *  *  * 

"It  seems  to  us  that  these  provisions  of  the  Revised  Statutes,  bringing  together 
the  enactments  of  Congress  on  the  subject  of  the  Marine  Corps,  show  that  the  primary 
position  of  that  body  in  the  military  service  is  that  of  a  oart  of  the  Navy,  and  its  chief 
control  is  placed  under  the  Secretary  of  the  Navy,  there  being  exceptions,  when  it 
may,  by  order  of  the  President,  or  some  one  having  proper  authority,  oe  placed  more 
immediately,  for  temporary  duty,  with  the  Army  and  under  the  command  of  the 
superior  army  officers."  File  26280-61,  Sec.  Navy,  July  10,  1915;  5252-66,  J.  A.  G., 
May  13,  1915,  26521-148,  J.  A.  G.,  Aug.  29,  1916,  p.  2. 

87.  Same— The  law  embodied  in  section  1621  of  the  Revised  Statutes  was  cited  by  the 

Supreme  Court  in  the  case  of  Wiikes  v.  Dinsman  (7  How.  88)  as  an  additional  reason 
for  holding  that  enlisted  men  of  the  Marine  Corps  might  be  employed  on  active  duty 
after  expiration  of  enlistment  under  laws  relating  to  en'isted  men  of  the  Navy.  In 
its  opinion  the  court  expressly  stated  that  "the  term  'the  better  government  of  the 


MARINE    CORPS.  363 

Navy,'"  as  used  in  the  law  as  it  then  read,  "need  not  be  restricted  to  mere  punish- 
ment, or  to  courts-martial." 

In  the  case  of  U.  S.  v.  Dunn  (120  U.  S.  252),  the  Supreme  Court,  in  discussing  its 
former  opinion  in  the  Wilkes  case,  stated  with  reference  to  that  opinion:  "And  re- 
ferring to  the  act  of  June  30,  1834,  the  provision  of  which  is  found  in  section  1621  of 
the  Revised  Statutes,  *  *  *  the  opinion  says  that  this  strengthens  the  conclusion 
of  the  court,  and  that  the  corps  thus  in  some  respects  became  still  more  closely  identi- 
fied with  the  Navy." 

Referring  to  the  Dunn  case,  the  Attorney  General  stated  in  an  opinion  to  the  Secre- 
tary of  War:  "The  Supreme  Court  thus  states  what  Revised  Statutes,  section  1621, 
makes  altogether  clear,  that  the  Marine  Corps  is-  a  part  of  the  Naval  Establishment 
and  is  subject  to  the  laws  and  regulations  for  the  government  of  the  Navy,  savo  in 
the  single  case  when  it  has  been  'detached  for  service  with  the  Army  by  order  of  the 
President. '  *  *  *  The  statute  leaves  no  room  for  doubt.  The  'Marine  Corps  is 
stated  to  be  'at  all  times'  subject  to  the  laws  and  regulations  established  for  the 
government  of  the  Navy,  except  when  detached  for  service  with  the  Army  by  order 
of  the  President.  Nothing  but  such  order  by  the  President,  or  by  his  authority,  can 
slter  the  ordinary  connection  of  the  Marine  Corps  with  the  Navy  and  connect  that 
corps  with  the  Army."  (28  Op.  Atty.  Gen.  19,  followed,  28  Op.  Atty.  Gen.  490.) 

"In  many  cases  statutes  relating  to  the  Navy  are  obviously  inapplicable  to  the 
Marine  Corps,  either  because  of  express  language  used  therein  or  because  of  the  mani- 
fest purpose  of  Congress  as  apparent  from  a  reading  of  the  law  itself  or  from  a  consider- 
ation of  the  conditions  and  circumstances  surrounding  its  enactment.  The  word 
'Navy'  may  be  given  an  extended  meaning  to  embrace  the  Marine  Corps,  as  has 
been  done  in  many  cases,  while  on  the  other  hand,  the  facts  of  a  particular  case  may 
be  such  as  to  show  that  it  was  used  in  a  more  restricted  sense  as  referring  to  the  Navy 
proper,  as  has  likewise  been  held  in  many  cases.  Accordingly,  each  statute  must  be 
construed  with  reference  to  specific  questions  arising  thereunder;  and  the  word 
'Navy'  thus  being  susceptible  9f  two  interpretations,  it  is  always  permissible  to 
consider  the  purpose  and  the  spirit  of  the  law  and  the  object  which  it  was  intended  to 
accomplish,  as  indicated  not  only  by  the  language  used  in  the  statute  but  by  other 
recognized  aids  to  interpretation."  (File  5252-66,  J.  A.  G.,  May  13,  1915.)  File 
26280-61,  Sec.  Navy,  July  10,  1915. 

Section  1621  of  the  Revised  Stacutes  "does  not  mean  that  the  Marine  Corps  shall 
be  subject  to  every  law  that  relates  to  the  Navy — but  only  to  such  laws  as  expressly 
or  by  reasonable  implication  include  the  Marine  Corps  within  their  terms,  and  more 
especially  to  the  Articles  for  the  (better)  Government  of  the  Navy."  File  3980-575:17 , 
J.  A.  G.,  Aug.  19,  1911,  p.  10. 

88.  Same— In  the  Judge  Advocate  General's  opinion  above  quoted,  theconclusion  was  that 

the  law  then  under  consideration,  relating  to  appointments  to  the  Naval  Academy 
from  "enlisted  men  of  the  Navy,"  authorized  such  appointments  to  be  made  from 
enlisted  men  of  the  Marine  Corps.  On  the  other  hand,  one  month  later,  it  was  held  by 
the  Judge  Advocate  General  that  the  law  creating  a  naval  reserve  did  not  authorize 
the  creation  of  a  Marine  Corps  reserve,  for  the  reason  that  several  provisions  contained 
in  said  legislation  clearly  manifested  that  Congress  did  not  intend  to  include  the 
Marine  Corps  therein;  and  that  this  case  was  within  the  principles  announced  by  the 
Attorney  General  in  an  opinion  holding  that  a  law  providing  for  deposit  of  savings 
by  enlisted  men  of  the  Navy  did  not  authorize  such  deposits  by  enlisted  men  of  the 
Marine  Corps  (file  28550-1:3,  June  15,  1915,  citing  19  Op.  Atty.  Gen.,  616). 

So,  also,  the  Supreme  Court  in  Wilkes  v.  Dinsman  (7  How.  88),  after  showing  by 
forcible  argument  that  enlisted  men  of  the  Marine  Corps  were  embraced  by  the  law 
authorizing  reenlistment  of  persons  "enlisted  for  the  Navy,"  added: 

"The  reason  of  the  law  on  such  occasions  for  reenlistment  applies  with  as  much 
force  to  them  as  to  ordinary  seamen,  because,  when  serving  on  ooard  public  vessels 
where  their  first  term  seems  likely  to  expire  before  the  cruise  ends,  their  services  may, 
under  the  public  necessities,  be  equally  needed  with  those  of  the  seamen  till  the 
cruise  ends ;  and  hence  all  of  them  may  rightfully  reenlist  for  the  cruise,  at  any  time,  in 
anticipation  of  this." 

Under  the  decisions  of  the  Supreme  Court,  Court  of  Claims,  etc.,  there  is  nothing 
strained  in  holding  that  the  term  "any  naval  officer  in  the  act  of  August  2,  1912  (37 
Stat.  329),  embraces  a  marine  officer,  who  is  an  officer  in  the  naval  service," 
attached  to  a  corps  which  is  a  "constituent,"  or  "component"  part  of  the  Navy. 
File  20280-61. 

89.  Same — "  Notwithstanding  this  intermediate  character  of  the  Marine  Corps,  and  these 

several  provisions  allying  it  in  several  respects  with  the  military  service,  I  am  satisfied 


364  MARINE    CORPS. 

that  it  is  properly  classed  with,  and  is  a  part  of,  the  naval  service  of  the  United  States. 
The  question  was  discussed  and  so  determined  by  the  Attorney  General  in  1820. 
(See  1  Op.  Attys.  Genl.  381)  and  this  opinion  has  been  since  repeatedly  followed. 
Op.  Attys.  Gen.  vol.  11,  p.  100;  vol.  10,  pp.  118,  129;  In  re  Bailey,  2  Taney,  200. 

"In  various  acts  of  Congress  making  appropriations,  the  marines  are  frequently 
referred  to  as  a  part  of  the  naval  service,  and  are  sometimes  described  as  'marines  of 
the  United  States  Navy.'  See  10  St.  at  Large,  p.  100,  c.  109,  sec.  1;  22  St.  at  Large, 
C.  97,  pp.  472,  479;  C.  141,  p.  589;  c.  391,  p.  284."  (In  re  Doyle  (18  Fed.  Rep.  369)  (1883.)) 

In  1904  the  Doyle  case  was  approved  and  followed  by  the  Court  of  Appeals  of  the 
District  of  Columbia  in  the  case  of  Elliott  v.  Morris  (24  App.  D.  C.,  11).  In  this 
case  the  decisions  of  the  Supreme  Court  of  the  United  States  and  the  statutes  re- 
lating to  the  Marine  Corps  were  reviewed  and  the  conclusion  of  the  court  stated  as 
follows: 

"These  provisions,  together  with  many  others  that  might  be  cited,  indicate  beyond 
doubt  that  the  Marine  Corps,  in  the  contemplation  of  Congress,  constitutes  a  con- 
stituent part  of  the  n,ival  service  of  the  country,  subject  to  the  laws  and  regulations 
that  govern  that  arm  of  the  service.  And  this,  we  think,  has  been  so  held  by  the 
Supreme  Court  of  the  United  States."  File  26280-61,  Sec.  Navy,  July  10, 1915;  5252-CG 
J.  A.  G.,  May  13,  1915;  26521-148,  J.  A.  G.,  Aug.  29,  1916,  p.  3. 

90.  Same — "The  Marine  Corps  is  a  part  of  the  Naval  Establishment  and  is  subject  to  the 

laws  and  regulations  for  the  government  of  the  Navy,  save  hi  the  single  instance  when 
it  has  been  'detached  for  service  with  the  Army  by  order  of  the  President.'"  (28 
Op.  Atty.  Gen.  15;  See  also,  28  Op.  Atty.  Gen.,  490.J 

"The  Marine  Corps  is  a  component  part  of  the  Navy,  and  its  members,  when  on 
board  ships  of  the  Navy,  perform  many  of  the  same  duties  required  of  seamen  of  the 
Navy,  such  as  those  of  great  gun  crews,  boat  drill,  and,  on  occasion,  signalmen,  fire 
control,"  etc.  (21  Comp.  Dec.  700;  see  also  3  Comp.  Dec.  659.)  See  File  20280-61, 
Sec.  Navy,  July  10,  1915;  5252-66,  J.  A.  G.,  May  13, 1915;  26521-148,  J.  A.  G.,  Aug. 
29,  1916,  pp.  3,  4;  28550-1:2. 

91.  Same — The  latest  judicial  decision  bearing  on  the  question  whether  or  not  the  words 

"naval  service"  embraces  the  Marine  Corps  Is  the  case  of  Jonas  v.  U.  8.  (50  Ct.  Cls. 
281),  in  which  it  was  held  that  retired  officers  of  the  Marine  Corps  are  embraced  by  the 
words  "any  naval  officer  on  the  retired  list"  appearing  in  the  act  of  August  22, 1912 
(37  Stat.  329),  with  reference  to  the  detail  of  retired  officers  to  active  duty. 

The  act  of  June  7, 1900  (31  Stat.  7031,  which  authorized  the  Secretary  of  the  Navy 
to  assign  to  active  duty  "any  naval  officer  on  the  retired  list"  included  retired  officers 
of  the  Marine  Corps.  The  act  cited  was  reenacted  with  some  modification  in  the 
act  of  August  22, 1912  (37  Stat.  329),  the  latter  act  also  applying  in  terms  to ' '  any  naval 
officer  on  the  retired  list."  It  was  held  by  the  Comptroller  of  the  Treasury,  contrary 
to  the  decision  of  the  Navy  Department,  that  retired  officers  of  the  Marine  Corps  wore 
not  embraced  by  the  terms  of  said  act  01  August  22, 1912  (37  Stat.  329).  The  question 
was  taken  to  the  Court  of  Claims  by  a  retired  Marine  officer  and  was  d?cided  by  said 
court  in  accordance  with  the  decision  of  the  Navy  Department,  May  10,  1915,  the 
Court  of  Claims  after  reciting  various  statutes  on  the  subject  saying: 

'A  perusal  of  the  above  statutes  will  indicate  the  somewhat  anomalous  position 


•the  statutes  relating  to  the  Army  and  Navy.  Notwithstanding  this  fact,  in  the 
construction  of  these  statutes  we  must  keep  in  mind  the  further  and  perhaps  superior 
fact  that  generally  speaking,  and  as  its  name  indicates,  the  Marine  Corps  is  a  part  of 
the  Navy.  It  is  that  part  of  the  Navy  which  may  upon  occasion  become  a  part  of 
the  Army.  The  courts  have  kept  this  fact  in  mind  in  the  construction  of  other 
statutes  relating  to  the  military  service."  File  27231-17,  J.  A.  G.,  May  31, 1912,  cited 
with  approval  In  File  5252-66,  J.  A.  G.,  May  13,  1915,  and  File  26521-148,  J.  A.  G., 
August  29,  1916. 

92.  Same — The  Marine  Corps,  when  not  detached  for  service  with  the  Army,  is  a  part  of 
the  naval  service  (Wflkes  v.  Dinsmari,  7  How.,  89;  U.  S.  v.  Dunn,  120  U.  S.,  249). 
C.  M.  O.  1,1911,6. 

The  Secretary  of  the  Navy  stated  March  31,  1906,  in  referring  to  the  contention 
that  the  Marine  Corps  is  an  "anomalous  body  intermediate  between  the  Army  and 
the  Navy":  "For  this  impression  there  is,  properly  speaking,  no  warrant  in  law. 
*  *  *  Its  legal  status  is,  beyond  all  doubt  or  question,  a  part  of  the  naval  forces  of 
the  country,  if  not  a  part  of  theNavy  in  the  strictest  sense."  14  Sol.  25,  May  27, 1908. 


MARINE   CORPS.  365 

93.  Same— "  Inasmuch  as  only  detachments  of  the  Marine  Corps  have  ever  been  or  will  in 
any  likelihood  ever  be  separated  and  sent  out  on  service  with  the  Army,  and  as  such 
separation  occurs  but  seldom,  and  as  the  main  body  of  the  corps  embracing  the  head- 
quarters and  the  majority  of  the  personnel — in  fact  the  essence  of  the  corps,  the 
organization  itself— would  remain  in  its  normal  condition;  and  as  the  service  of  such 
detached  parts  with  the  Army  would  be  merely  temporary,  operating  to  suspend  only 
and  not  to  terminate  their  original  status  to  which  they  would  soon  return,  it  is 
evident  that  the  Marine  Corps,  in  its  official  character  and  mode  of  existence,  partakes 
essentially  and  permanently  of  the  Navy  rather  than  of  the  Army — hi  other  words, 
that  it  is  in  reality  a  branch  of  the  Navy.  Consequently,  if  there  be  any  doubt  as  to 
the  applicabili ty  of  the  law  or  a  lack  of  law  affecting  this  corps,  the  interpretation  of 


G.  No.  5530);  27231-10,  J.  A.  G.,  Feb.  9,  1910;  6770-12.  May  8,  1912;  27231-17,  J.  A. 
G.,  May  31, 1912;  26280-61.  July  10, 1915;  5252-66,  J.  A.  G.,  May  13, 1915;  5460-81,  J.  A. 
G.,  May  12, 1916;  13261-486,  Sec.  Navy,  June  8, 1916. 

94.  Same — The  trend  of  recent  legislation  and  departmental  regulations  has  been  in  the 

direction  of  fixing  the  status  of  the  Marine  Corps  definitely  as  an  integral  part  of  the 
naval  service.  Thus,  in  the  act  of  June  30, 1914  (38  Stat.  403).  the  following  provision 
appears:  "  That  hereafter  the  number  of  men  of  the  Navy  and  Marine  Corps  provided 
for  shall  be  construed  to  mean  the  daily  average  number  of  enlisted  men  in  the  naval 
service  during  the  fiscal  year."  (See  MARINE  CORPS,  96, 97.)  The  new  form  of  sentence 
for  general  court-martial  prescribed  in  Navy  Regulations,  1913,  R-816  (4),  provides 
for  dishonorable  discharge  of  marines  from  the  "naval  service"  instead  of  from  the 
"Marine  Corps"  as  before.  File  5252-66,  J.  A.  G.,  May  13,  1915,  p.  5. 

95.  Same — As  marine  officers  perform  their  duties  in  connection  with  the  Navy,  at  sea  or 

on  shore,  and  under  the  orders  of  the  Secretary  of  the  Navy,  except  when  detached 
by  the  President  for  service  with  the  Army,  there  is  not  only  every  reason  to  regard 
marine  officers  as  embraced  by  the  purpose  of  the  act  of  August  22, 1912  (37  Stat.  329) 
but  it  would  be  difficult  to  suggest  any  reason  why  Congress  should  have  intended  to 
exclude  them  from  the  terms  of  that  act,  thus  making  an  exception  with  reference  to 
a  very  small  number  of  the  retired  officers  in  the  naval  service,  without  any  apparent 
motive  for  the  distinction.  File  26280-61.  See  also  MARINE  CORPS.  91. 

96.  Same — Enlisted  men  of  the  Marine  Corps  may  be  allowed  to  extend  their  enlistments 

in  accordance  with  the  act  of  August  22, 1912  (37  Stat.  331),  which  in  terms  applied  to 
"any  enlisted  man  in  the  Navy."  File  26507-214:8,  J.  A.  G.,  April  5,  1915,  quoted 
with  approval  in  File  5252-66,  J.  A.  G.,  May  13,  1915,  p.  5. 

97.  Same — The  word  "Navy"  may  be  given  an  extended  meaning  to  embrace  the  Marine 

Corps,  as  has  been  done  in  many  cases,  while  on  the  other  hand  the  facts  of  a  par- 
ticular case  may  be  such  as  to  show_  that  it  was  used  in  a  more  restricted  sense  as 
referring  to  the  Navy  proper,  as  has  likewise  been  held  in  many  cases.  (File  5252-66, 
J.  A.  G.,  May  13,  1915.)  File  5460-81,  J.  A.  G.,  May  12,  1916. 

9S.  Same — Abstract  of  retirement  laws  showing  difference  between  the  laws  relating  to 
retirement  of  officers  of  the  Army,  Navy,  and  Marine  Corps.  File  27231-10,  J.  A.  G., 
Feb.  9, 1910. 

99.  Same — When  detached  for  service  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

100.  Strength  of — The  number  of  enlisted  men  m  the  Marine  Corps  is  limited  by  law. 

File  26524-2f)3:2,  Sec.  Navy,  July  17,  1916.  By  the  Act  of  August  29,  1916  (39  Stat. 
612),  the  enlisted  strength  was  increased  to  14,981.  File  26521-148,  Sec.  Navy,  Sept. 
1916.  See  also  MARINE  CORPS,  94;  Navy  Dept.  G.  O.  241,  Oct.  23, 1916,  p.  2. 

101.  Same — The  maximum  strength  of  the  Marine  Corps,  when  its  full  quota  is  available 

for  duty,  is  not  now  sufficient  for  the  duties  required  at  the  various  posts  and  stations. 
File  26524-263:2,  Sec.  Navy,  July  17,  1916.  See  also  MARINE  CORPS,  94, 100. 

102.  Same— Method  of  computing  number  of  commissioned  officers  in  the  various  grades 

and  ranks  authorized  for  the  Marine  Corps  by  the  Act  of  August  29,  1916  (39  Stat. 
610).  File  26521-148,  J.  A.  G.,  Aug.  29,  1916. 

103.  Summary  courts-martial— -Convening  of.    See  SUMMARY  COURTS-MARTIAL,  22. 

104.  Same— Action  of  senior  officer  present.    See  SENIOR  OFFICER  PRESENT. 

MARINE  CORPS  RESERVE. 

1.  Act  of  March  3. 1915  (38  Stat.  94O)— Establishing  a  Naval  Reserve  did  not  author- 

ize the  establishment,  ofa  Marine  Corps  Reserve.  File  5460-81,  J.  A.  G.,  May  12, 1916. 
See  also  MARINE  CORPS,  8R;  NAVAL  RESERVE,  1. 

2.  Act  of  August  29, 1916  (39  Stat.  593)— Established  a  Marine  Corps  Reserve. 


366  MARINE    EXAMINING    BOARDS. 

MARINE  DIVISIONS  OF  ORGANIZED  MILITIA. 

1.  Naval  Militia  act  of  February  16,  1914  (38  Stat.  383)— Applies  to.    See  NAVAL 
MILITIA,  19. 

MARINE  DIVISIONS  OF  THE  NAVAL  MILITIA. 

1.  Naval  Militia  act  of  February  16,  1914  (38  Stat.  883)— Applies  to.    See  NAVAL 
MILITIA,  19. 

MARINE  EXAMINING  BOARDS.    See  also  NAVAL  EXAMINING  BOARDS;  PROMOTION. 

1.  Acting  Assistant  Surgeons— Not  eligible  as  members.    See  ACTING  ASSISTANT 

SURGEONS,  4. 

2.  Approved  but  officer  admonished — In  a  case  where  an  officer  had  unfavorable  matters 

on  his  record,  including  disrespect  and  insubordination  in  his  manner  towards  his 
commanding  officer,  the  department  stated  that  although  approving  the  finding  of 
the  board  that  the  candidate  was  qualified  "it  does  not,  in  any  way  condone  the 
offenses.  *  *  *  You  are  hereby  admonished  to  exercise  due  diligence  that  there  be 
no  repetition  of  such  serious  offenses  during  your  service"  in  the  future.  File  26260- 
3629,  Sec.  Navy,  Aug.  24, 1916. 

3.  Civil  courts — Where  a  complaint  of  nonsupport  has  been  made  against  an  officer  who 

has  instituted  divorce  proceedings  against  the  complainant,  and  pending  the  result 
of  such  suit  the  officer  became  a  candidate  for  promotion  the  department  stated  in 
a  letter  to  the  Marine  Examining  Board,  after  quoting  C.  M.  O.  13,  1916,  pp.  6-7: 
The  board  has  the  duty  devolved  upon  it  of  making  a  thorough  investigation  into 
the  matters  which  are  the  subject  of  the  correspondence  referred  to,  examining  wit- 
nesses with  reference  thereto  if  necessary,  and  of  determining  as  the  result  of  such  in- 
vestigation, together  with  any  other  matters  of  an  unfavorable  character  which  may 
be  upon  the  candidate's  record,  whether  or  not  the  candidate  is  morally  qualified 
for  promotion ;  and  is  not  authorized  to  delay  its  proceedings  pending  a  determination 
of  litigation  in  the  civil  courts  involving  the  relations  between  this  candidate  and  his 
wife.  It  is  possible  that  a  final  adjudication  upon  the  merits  of  the  controversy  may 
never  be  reached  in  the  civil  proceedings,  and  even  if  it  were,  this  would  not  relieve 
the  board  of  its  duty  to  make  an  independent  investigation  of  the  matters  at  issue, 
in  so  far  as  they  may  affect  the  moral  fitness  of  the  candidate  for  promotion  in  the 
Marine  Corps.  File  26260-3628:1,  J.  A.  G.,  Aug.  25,  1916. 

4.  Constitution  of — Marine  Examining  Boards  shall  in  all  case?  consist  of  not  less  than 

five  officers,  three  of  whom  shall,  if  practicable,  be  officers  of  the  Marine  Corps,  senior 
to  the  officer  to  be  examined,  and  two  of  whom  shall  be  medical  officers  of  the  Navy. 
When  not  practicable  to  detail  officers  of  the  Marine  Corps  as  members  of  such  examin- 
ing boards,  officers  of  the  line  of  the  Navy  shall  be  so  detailed.  (Act,  July  28,  1892, 
27  Stat.  321).  File  28027-17,  J.  A.  G.,  April  25,  1911. 

5.  Same — Line  officers  of  the  Navy  may  serve  as  members  of  a  Marine  Examining  Board 

if  the  Marine  officers  senior  to  the  candidate  are  not  available.  File  262(iO-l3(i8,  June 
1,  1911. 

G.  Same— Acting  Assistant  Surgeons  are  not  eligible  for  duty  as  members  of  a  Marine 
Examining  Board.    See  ACTING  ASSISTANT  SURGEONS,  4. 

7.  Same — A  naval  officer  may  be  detailed  for  duty  upon  a  Marine  Examining  Board, 

although  not  upon  a  Marine  Retiring  Board.  File  28027-17,  J.  A.  G.,  Apr.  25,  1911. 
See  also  MARINE  RETIRING  BOARDS,  2. 

8.  Same — It  is  a  fatal  defect  for  a  member  of  a  Marine  Examining  Board  to  be  junior  to 

the  candidate.    See  MARINE  EXAMINING  BOARDS,  16;  PROMOTION. 

9.  Divorce.    See  MARINE  EXAMINING  BOARDS,  3. 

10.  Domestic  trouble.    See  MARINE  EXAMINING  BOARDS,  3. 

11.  Junior— Member  junior  to  candidate.    See  MARINE  EXAMINING  BOARDS,  8, 16. 

12.  Legal  questions— Navy  Regulations,  1913,  R-334  (11)  provides  that  "any  question 

of  law  arising  before  the  board,  and  any  communication  relative  to  its  proceedings, 
shall  be  submitted  to  the  Judge  Advocate  General  of  the  Navy."  This  article  is 
applicable  to  Marine  Examining  Boards  (Naval  Instructions,  1913,  1-3664).  File 
20260-3628:1,  J.  A.  G.,  Aug.  25,  1916. 

13.  Members,  absence  of — A  member  was  "temporarily  and  unavoidably  absent  on 

duty,"  but  "  as  a  quorum  was  present  the  board  "  proceeded.  During  a  later  stage  of 
the  proceedings  this  member  reported;  the  candidate  was  given  an  opportunity  to 
object  and  the  member  was  sworn.  Department  approved  without  comment.  File 
26260-281.  (Board  convened  Oct.  2, 190^,  and  received  in  department  Nov.  12, 1908. 
See  also  File  26260-2407.)  To  avoid  any  possible  adverse  action  by  the  department 
this  should  not  be  followed  as  a  precedent. 


MARINE    EXAMINING   BOARDS.  367 

14.  Moral  examination  of  candidate — The  attention  of  a  certain  Marine  Examining 

Board  was  invited  to  Naval  Instructions,  1913, 1-3673,  concerning  the  moral  examina- 
tion of  candidates  for  promotion  in  the  Marine  Corps,  and  to  Navy  Regulations,  1913. 
R-334  (10),  which  contains  general  instructions  concerning  the  duty  of  each  member 
of  che  board  with  reference  to  determining  the  moral  fitness  of  candidates  for  pro- 
motion in  the  naval  service,  with  which  instructions  Marine  Examining  Boards  are 
required  to  acquaint  themselves  by  Naval  Instructions,  1913,  1-3664.  File  26200- 
3628:1,  J.  A.  G.,  Aug.  25,  1916. 

15.  Navy  Regulations,  1913,  R-334  (11)— Applies  to  Marine  Examining  Boards.    See 

MARINE  EXAMINING  BOARDS,  12. 

16.  Rank  of— Record  of  proceedings  of  a  Marine  Examining  Board  are  fatally  defective 

if  one  of  the  members  is  junior  to  candidate.  File  26260-1368,  June  1, 1911.  But  see 
File  26260-1512,  Sec.  Navy,  Oct.  12, 1911;  PROMOTION. 

17.  Records— The  department  desires  that  the  records  of  the  proceedings  of  the  examining 

board  which  conducted  the  last  examination  of  candidates  for  appointment  as  second, 
lieutenants.  U.  S.  Marine  Corps,  be  forwarded  to  the  Judge  Advocate  General  of  the 
Navy,  to  be  recorded  and  filed.  File  13261-414:5,  Sec.  Navy,  March  22,  1913. 

18.  Resolving— Itself  into  a  Marine  Retiring  Board.    See  MARINE  RETIRING  BOARDS,  3. 

19.  Witnesses.    See  NAVAL  EXAMINING  BOARDS,  25,  26. 

MARINE  LEAGUE. 

1.  Naval  Militia — Service  of  Naval  Militia  outside  of  the  "three  mile  limit."    See  NAVAL 

MILITIA,  20. 

2.  Target  practice— Within  marine  league  of  a  foreign  state.    See  TARGET  PRACTICE. 

MARINE  RETIRING  BOARDS. 

1.  Constitution  of — In  case  of  an  officer  of  the  Marine  Corps,  the  retiring  board  shall  be 

selected  by  the  Secretary  of  the  Navy,  under  the  direction  of  the  President.  Two- 
fifths  of  the  board  shall  be  selected  from  the  Medical  Corps  of  the  Navy,  and  the 
remainder  shall  be  selected  from  officers  of  Marine  Corps,  senior  in  rank,  so  far  as 
may  be,  to  the  officer  whose  disability  is  to  be  inquired  of.  (Sec.  1623,  R.  S.) 

A  retiring  board  shall  consist  "  of  not  more  than  nine  nor  less  than  five  officers, 
two-fifths  of  whom  shall  be  selected  from  the  Medical  Corps."  (Sec.  1246,  R.  S.) 
File  28027-17,  J.  A.  G.,  April  25,  1911. 

2.  Same — Although  naval  officers  may  be  detailed  on  Marine  Examining  Boards,  there  is 

not  authority  to  appoint  such  officers  on  a  Marine  Retiring  Board.  Except  the 
medical  members  of  a  Marine  Retiring  Board,  all  members  shall  be  selected  from 
officers  of  the  Marine  Corps,  and,  while  it  is  discretionary  with  the  convening  authority 
to  appoint  members  junior  to  the  officer  before  the  board,  yet  they  should  be  "senior 
in  rank  as  far  as  may  be."  File  28027-17,  J.  A.  G.,  April  25, 1911.  See  also  MARINE 
EXAMINING  BOARDS,  7. 

3.  Marine  Examining  Board— Resolved  into  a  Marine  Retiring  Board.    See  File  26200- 

3237.    See  also  PROMOTION,  27,  85,  86, 165.  * 

4.  Rank  of.   See  MARINE  RETIRING  BOARDS,  1,  2. 

MARINES  SERVING  WITH  ARMY. 

1.  First  Brigade— Detached  for  service  with  the  Army— 

224 
"FLAG  OFFICER,  'ARKANSAS/  "APRIL  27, 1914. 

"  Vera  Cruz,  Mexico. 

"  Pursuant  to  order  of  the  President  of  the  United  States,  the  First  Brigade  of 
Marines  is  hereby  detached  from  duty  with  the  U.  S.  Atlantic  Fleet  and  detailed  for 
service  with  the  U.  S.  Army. 

"  You  will  issue  the  necessary  orders  to  the  brigade  commander  and  direct  him 
to  report,  with  the  brigade  under  his  command,  to  the  officer  in  command,  U.  S. 
Army,  forces  at  Vera  Cruz,  Mexico. 

"  While  thus  detached  for  service  with  the  Army,  the  marines  so  serving  will  be 
governed  by  the  provisions  of  section  1621,  Revised  Statutes. 

"The  First  Brigade  includes  all  officers  and  enlisted  men  of  the  Marine  Corps  now 
at  Vera  Cniz,  except  those  forming  parts  of  regular  complement  of  ships.  Those 
marines  now  en  route  to  Vera  Cruz  will  join  the  First  Brigade. 

"DANIELS.'' 

See  File  26251-9965. 

2.  Jurisdiction — An  enlisted  man  of  the  Marines  Corps  is  not  amenable  to  trial  by  a  naval 

court-martial  for  an  offense  alleged  to  have  been  committed  by  him  while  the  organi- 
zation of  which  he  is  a  member  was  detached  for  service  with  the  Army  by  order  of 

50756  °— 17 24 


368  MARINES   SERVING   WITH   ARMY. 

the  President.  Accordingly,  held,  that  when  a  marine  was  brought  to  trial  bv  a  naval 
court-martial  under  the  above  circumstances,  and  at  the  outset  of  the  trial  pleaded 
to  the  jurisdiction  of  the  court,  such  plea  should  have  been  sustained.  File  20251- 
9965:3,  J.  A.  G.,  Mar.  24,  1915;  C.  M.  O.  31,  1915,  6.  See  MARINES  SEEVINQ  WITH 
ARMY,  3  for  converse.  See  ARMY,  7  for  j  urisdiction  of  Army. 

3.  Same — The  records  of  the  department  show  that  members  of  the  First  Brigade  of 

marines  were  tried  by  naval  courts-martial  after  detachment  of  said  brigade  for  service 
with  the  Army  for  offenses  committed  before  they  reported  to  the  commanding 
officer  of  the  Army  for  duty.  The  order  detaching  the  first  brigade  for  service  with 
the  Army  was  issued  by  the  Secretary  of  the  Navy  April  27,  1914,  and  pursuant 
thereto,  on  May  1, 1914,  the  commanding  officer  of  said  brigade  reported  to  the  officer 
in  command  of  the  United  States  Army  forces  at  Vera  Cruz.  Alter  the  latter  date, 
three  men  were  tried,  one  on  May  Ifi,  1914,  and  two  on  May  22, 1914  (See  G.  C.  M. 
Rec.  No.  28775;  28782;  28783).  File  20251-9965.  See  MARINES  SERVING  WITH  ARMY, 
2,  for  converse. 

If  a  marine  serving  with  Army  is  placed  under  arrest  upon  a  charge  while  still 
serving  with  the  Armv,  then  such  action  is  taken  by  officers  of  the  Marine  Brigade 
in  their  capacity  as  subordinates  of  the  War  Department;  Army  jurisdiction  thereby 
attaches;  and  can  not  be  divested  by  any  subsequent  change  in  the  status  of  tne 
accused.  He  would  accordingly  still  be  amenable  to  Army  jurisdiction  for  all  pur- 
poses of  trial  and  punishment  upon  said  charge.  (See  Carter  v.  McClaughry,  183 
U.  S.  3<>5;  Barrett  v.  Hopkins,  7  Fed.  Rep.  312.)  File  26251-0006. 

4.  Medical  department— Officers  and  enlisted  men  of  the  Medical  Department  of  the 

Navy,  serving  with  a  body  of  marines  detached  for  service  with  the  Army  in  accord- 
ance with  the  provisions  of  section  sixteen  hundred  and  twenty-one  of  the  Revised 
Statutes,  shall,  while  so  serving,  be  subject  to  the  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Army  in  the  same  manner  as  the  officers  and  men  of  the 
Marine  Corps  while  so  serving.  (Act  of  August  29, 1916,  39  Stat.  573.) 

5.  Previous  convictions— While  detached  for  service  with  Army.    See  PREVIOUS  CON- 

VICTIONS, 3. 

6.  Sentence  Imposed  by  Army  court-martial— Mitigated  by  President  after  return  of 

accused  to  naval  jurisdiction — A  private  of  the  U.  S.  Marine  Corps,  while  serving 
with  the  Army  at  Vera  Cruz,  Mexico,  was  tried  by  an  Army  general  court-martial 
and  sentenced  "to  be  dishonorably  discharged  from  the  service  of  the  United  States, 
forfeiting  all  pav  and  allowances  due  him,  and  to  be  confined  at  hard  labor  at  such 
place  as  the  reviewing  authority  may  direct,  for  one  (1)  year." 

The  foregoing  sentence  was  approved  by  the  convening  authority  July  3,  1914, 
but  the  period  of  confinement  was  reduced  to  hard  labor  for  six  months  and  the  for- 
feiture of  pay  reduced  to  $10  a  month  for  the  same  period.  As  thus  mitigated,  it  was 
directed  that  the  sentence  "be  duly  executed  at  the  station  of  his  company. ' ' 

The  above-named  man  was  returned  to  naval  jurisdiction  and  it  was  recommended 
by  the  Commandant  of  the  Marine  Corps  "that  the  unexecuted  portion  of  the  con- 
finement and  loss  of  pay  in  this  case  be  remitted  on  the  date  of  expiration  of  *  *  * 
enlistment,  and  that  he  be  discharged  on  that  data — namely  November  11,  1914." 

In  view  of  the  fact  that  this  man  had  passed  from  the  jurisdiction  of  the  War  Depart- 
ment, it  was  held  by  the  Judge  Advocate  General  of  the  Army  "that  the  War  Depart- 
ment has  no  authority  now  to  take  any  action  with  regard  to  the  sentence."  (War 
Bulletin  No.  50,  Nov.  14, 1914;  War  Bulletin  No.  52;  Dec.  14, 1914,  p.  7). 

The  act  of  February  16,  1909  (35  Stat.,  621),  section  9,  reads  as  follows: 

"That  the  Secretary  of  the  Navy  may  set  aside  the  proceedings  or  remit  or  mitigate, 
in  whole  or  in  part,  the  sentence  imposed  by  any  naval  court-martial  convened  by 
his  order  or  by  that  of  any  officer  of  the  Navy  or  Marine  Corps."  (Navy  Regulation, 
1913,  R-847  (i).) 

While  it  was  undoubtedly  the  spirit  of  this  law  to  empower  the  Secretary  of  the 
Navy  to  remit  or  mitigate  sentences  imposed  by  courts-martial  upon  all  persons  in 
the  naval  service  serving  under  the  jurisdiction  of  the  Navy  Department,  yet  in  view 
of  the  specific  language  of  the  act  quoted  a  doubt  arose  as  to  whether  the  Secretary 
of  the  Navy  was  authorized  to  remit  the  unexpired  sentence  in  this  case,  the  court- 
martial  not  having  been  convened  "  by  his  order  or  by  that  of  any  officer  of  the  Navy 
or  Marine  Corps,"  and  not  being  a  "naval  court-martial." 

The  power  to  remit  sentences  of  this  character  is,  of  course,  possessed  by  the  Presi- 
dent. It  was  accordingly  recommended  to  the  President  that  so  much  of  the  sentence 
in  the  case  of  this  man,  involving  confinement  and  loss  of  pav  as  remained  unexecuted 
on  November  11,  1914,  be  remitted,  in  order  that  he  could  be  discharged  from  the 


MARINES    SERVING   WITH   ARMY.  369 

service  on  that  date,  and  on  November  11, 1914,  the  President  approved  this  recom- 
mendation.   File  26207-127;  C.  M.  O.  49,  1914,  4-5. 

7.  Status— The  accused  was  charged  with  "  Assaulting  with  a  deadly  weapon  and  wound- 
ing another  person  in  the  Navy,"  November  22, 1914,  while  said  brigade  of  the  Marine 
Corps  was  detached  for  service  with  the  Army  by  Executive  order  issued  in  accord- 
ance with  section  1621,  Revised  Statutes.  [Navy  Regulations,  1913,  R-4101  (2).] 

From  a  report  of  the  War  Department  it  appears  that  the  First  Brigade  of  marines, 
including  the  accused,  was  detached  by  Executive  order  from  service  with  the  Army 
and  returned  to  naval  jurisdiction,  November  23, 1914,  that  is,  the  day  following  the 
alleged  offense  of  the  accused. 

A  report  of  the  offense  was  made  in  due  course  and  forwarded  through  official  chan- 
nels to  the  Commandant  of  the  Marine  Corps,  and  by  him  transmitted  to  the  Secre- 
tary of  the  Navy  with  recommendation  that  the  accused  be  brought  to  trial  by  naval 
court-martial. 

It  was  not  specifically  brought  to  the  attention  of  the  department  that  the  alleged 
offense  was  committe  J  by  the  accused  while  the  marine  brigade  to  which  he  belonged 
was  detached  for  service  with  the  Army.  Accordingly,  charge  and  specification  cov- 
ering the  offense  was  preferred  by  the  Secretary  of  the  Navv,  against  the  accused, 
December  23,  1914,  for  trial  by  a  naval  general  court-martial  at  Philadelphia,  Pa., 
the  case  being  handled  by  the  department  in  the  routine  manner,  no  consideration 
being  given  to  the  question  of  jurisdiction,  which,  as  stated,  was  not  at  that  time 
presented . 

At  the  outset  of  his  trial,  the  accused,  through  his  counsel,  pleaded  to  the  jurisdic- 
tion of  the  court,  citing  section  1621,  Revised  Statutes,  and  Navy  Regulations,  1913, 
R-4105,  in  support  of  the  contention  that  the  Secretary  of  the  Navy  was  not  empow- 
ered to  convene  a  court-martial  for  the  trial  of  the  accused  under  the  circumstancea 
above  stated. 

The  court  decided  that  "the  plea  of  want  of  jurisdiction  is  overruled,  and  the  trial 
will  proceed."  The  accused  thereupon  pleaded  "not  guilty";  the  trial  was  proceeded 
with,  he  was  found  guilty  by  the  court,  and  a  sentence  imposed  involving  confinement 
at  hard  labor  for  18  months  and  dishonorable  discharge  from  the  Marine  Corps. 

The  Judge  Advocate  General  of  the  Navy  held  that  the  naval  court-martial  was 
without  jurisdiction.  Thereafter  the  Secretary  of  the  Navy,  with  the  concurrence  of 
the  Secretary  of  War,  referred  the  matter  to  the  Attorney  General  for  his  opinion. 
No  official  opinion  was  rendered  by  the  Attorney  General  as  in  the  meantime_,  after 
a  conference  between  the  Secretary  of  the  Navy  and  the  Attorney  General,  it  waa 
decided  by  the  Secretary  of  the  Navy  to  approve  the  proceedings  and  sentence  of  the 
naval  court-martial  and  to  execute  the  sentence,  which,  however,  was  mitigated. 

The  accused,  shortly  after  the  sentence  was  approved,  instituted  habeas  corpus 
proceedings  before  the  United  States  judge  for  the  Eastern  District  of  Pennsylvania, 
on  the  ground  that,  as  originally  alleged  by  him,  the  proceedings  of  the  naval  court- 
martial  were  null  and  void  owing  to  lack'of  jurisdiction,  and  that  his  confinement 
pursuant  thereto  was  accordingly  illegal.  This  contention  was  sustained,  as  shown 
By  the  following  opinion: 

This  case  comes  before  us  as  in  effect  a  case  stated  to  have  section  Ifi21  of  the  Revised 
Statutes  (Comp.  St.  1913,  §  2948)  judicially  construed.  We  dispose  of  it  as  a  case  in 
which  the  facts  appear  of  record  by  the  pleadings.  There  is  no  controversy  over  the 
facts.  We  state  them  as  presented  by  counsel  for  the  United  States 

The  relator  belonged  to  the  Navy,  serving  in  the  Marine  Corps.  The  brigade  ill 
which  he  was  a  private  was  detached  for  service  with  the  Army  by  order  of  the  Presi- 
dent. While  the  brigade  was  on  this  detached  service  he  was  charged  with  having; 
committed  an  act  which  is  made  an  offense  both  by  "the  rules  and  articles  of  war 
prescribed  for  the  government  of  the  Army"  and  by  "the  laws  and  regulations  estab- 
lished for  the  government  of  the  Navy."  For  this  he  was  placed  under  guard  by 
military  order.  The  next  day  the  brigade  to  which  he  belonged  was  "by  Executive 
order  withdrawn  from  the  detached  service  of  the  Army."  Subsequently  he  was 
brought  "before  a  naval  court-martial  for  trial,"  and  was  tried,  convicted,  and  sen- 
tenced for  an  offense  against  the  laws  and  regulations  of  the  Navy.  When  arraigned 
for  trial  he  entered  a  plea  to  the  jurisdiction  of  the  court.  The  plea  was  based  upon 
the  fact  that  at  the  time  the  offense  was  charged  to  have  been  committed  he,  as  a 
private  in  a  brigade  of  the  Marine  Corps,  was  serving  with  the  Army,  his  brigade 
being  on  detachei  service  with  the  Army  by  order  of  the  President,  and  on  the  propo- 
sition of  law  that  the  Marine  Corps,  when  on  such  service,  is  not  subject  to  the  lawa 


370  MARINES    SERVING   WITH   ARMY. 

and  regulations  of  the  Navy.    The  plea  was  overruled.    He  is  now  seeking  to  raise 
the  same  question  through  the  present  proceedings. 

The  fact  is  admitted.  The  legal  conclusion  is  denied.  The  officials  of  the  Army 
and  Navy  Departments,  who  have  considered  and  passed  upon  the  question,  agree 
only  in  this:  That  it  is  one  of  doubt  and  difficulty,  and  that  it  turns  upon  the  meaning 
of  R.  8.  §  1621.  That  section  is  as  follows: 

"  The  Marine  Corps  shall,  at  all  times,  be  subject  to  the  laws  and  regulations  estab- 
lished for  the  government  of  the  Navy,  except  when  detached  for  service  with  the 
Army  by  order  of  the  President;  and  when  so  detached  they  shall  be  subject  to  the 
rules  and  articles  of  war  prescribed  for  the  government  of  the  Army. " 

The  question  is:  , 

"  Was  the  relator  subject  to  the  laws  and  regulations  established  for  the  government 
of  the  Navy,  or  to  the  rules  and  articles  of  war  prescribed  for  the  government  of  the 
Army?" 

The  arguments  presented  in  support  of  the  opinions  given  during  the  court-martial 
iproceedings,  and  since  the  finding,  are  so  full  and  exhaustive  that  nothing  of  value 
can  be  added,  unless  perhaps  it  be  this  trite  observation:  The  question  is  one  the 
answer  to  which  must  be  found  by  a  resort  to  the  statute.  The  moment  one  goes, 
outside  of  the  statute ,  and  into  the  general  considerations  which  surround  the  sub]  ect 
there  is  evoked  at  once  a  flood  of  conflicting  arguments  of  almost  equal  plausibility  e 
which  serve  only  to  produce  doubt  and  confusion  of  mind.  We  have  stated  tn0 
•question.  What  answer  does  the  statute  give?  It  is  that  the  relator  was  subject  t 
the  Naval  Code  unless  he  was  on  service  with  the  Army,  in  which  latter  event  he  was 
subject  to  the  Army  Code.  There  is  really  nothing  to  be  added  to  this  clear  answer, 
i Some  aid  might  possibly  be  gained  by  a  view  of  the  answer  from  another  angle.  This 
is  afforded  by  transposing  the  clauses  in  the  sentence  quoted  from  the  act.  If  we  do 
.this,  we  have  this  as  the  result: 

"The  Marine  Corps  is  subject  to  the  articles  of  war  while  on  service  with  the  Army 
by  order  of  the  President.  At  all  other  times  it  is  subject  to  the  laws  and  regulations 
of  the  Navy. " 

We  were  impressed  with  this  as  the  true  meaning  of  the  statute  at  the  hearing. 
At  the  request  of  counsel  for  the  United  States  a  decision  was  withheld  awaiting  the 
;submission  of  paper  books.  These  have  been  submitted.  As  we  interpret  that  on 
behalf  of  the  United  States,  it  is  an  admission  that  the  argument  at  bar  against  the 
.above  construction  of  the  act  of  Congress  was  unsound,  but  that  the  jurisdiction  of 
.the  naval  court-martial  can  be  upheld  by  the  distinction  between  laws  which  define 
•,the  offense  and  laws  which  constitute  the  tribunal  by  which  the  offense  is  to  be  tried. 
The  logic  of  this  is  that  it  admits  the  relator  could  not  be  tried  for  an  offense  against 
the  Navy  regulations  and  drives  us  to  the  position  that,  although  he  could  be  tried 
only  for  an  offense  defined  by  the  articles  of  war,  he  might  be  tried  by  either  a  Navy 
or  Army  court-mart  ial . 

The  argument  has  more  plausibility  than  convincing  power.  The  distinction 
between  the  offense  denned  by  a  law  and  the  court  constituted  by  the  same  law  to 
try  the  offender  is  clear  enough  and  is  recognized.  The  argument  concedes,  however, 
that  the  offender  can  not  be  tried  for  any  act  not  made  an  offense  by  the  body  of 
laws  and  regulations  to  which  he  is  subject.  The  same  laws  and  regulations  which 
define  the  offense  constitute  and  designate  the  court  which  is  to  try  the  offender. 
By  what  token,  then,  can  it  be  said  that  the  offender  is  subject  to  some  of  these  laws 
and  regulations,  but  not  to  others? 

The  reference  to  prior  legislation  gives  no  comfort  of  aid  to  the  argument.  Granted 
that  the  status  of  the  Marine  Corps  was  at  first  doubtful.  It  rendered  service  at  times 
with  the  Navy  and  at  times  with  the  Army,  without  being  definitely  or  permanently 
attached  to  either  department.  Its  "  primary"  relation  was  finally  settled  to  be  with 
the  Navy,  but  it  had  special  and  temporary  Army  relations  when  on  service  with 
the  Army.  The  early  statutes  gave  recognition  to  this  by  providing  that  it  should 
be  subject  to  the  laws  and  regulations  of  the  Navy,  except  when  detached  by  ordor 
of  the  President  for  sen-ice  with  the  Army.  The  present  statute  added  the  clauso 
that  when  so  detached  it  should  be  subject  to  the  articles  of  war.  This  does  not 
weaken,  but  confirms  the  inference  that  Congress  has  expressed  the  meaning  above 
given  to  the  statute.  The  conclusion  reached  is  that  the  relator  was  not  subject 
to  the  laws  and  regulations  of  the  Navy,  and  that  a  court  established  by  these  laws 
was  without  authority  of  law  to  impose"  or  enforce  the  sentence  pronounced. 


MARINES   SERVING   WITH   ARMY.  371 

This  conclusion  indicates  the  disposition  which  should  in  the  usual  course  be  made 
of  this  proceeding.  A  very  practical  feature  of  the  case,  however,  is  that  through  the 
remission  of  a  part  of  the  sentence  imposed  it  is  about  to  expire.  The  relator  has 
already  undergone  imprisonment  while  his  case  was  under  consideration.  He 
was  charged  with  the  commission  of  an  act  which  was  an  offense  under  the  articles 
of  war.  For  this  he  was  arrested  by  being  placed  under  guard  by  the  military  author- 
ities. The  conclusion  reached  involves  the  thought  that  this  restraint  of  his  liberty 
was  in  accordance  with  law.  The  relator,  rather  than  submit  himself  to  an  order 
of  the  court,  might  prefer  to  await  the  time  of  his  release  by  expiration  of  his  sentence. 
We  have  therefore  concluded  to  dispose  of  the  question  submitted  to  us  as  has  been 
done,  and  grant  leave  to  relator  to  move  for  such  order  as  he  may  ask  to  have  made. 

In  this  connection,  also,  we  wish  to  add  that  we  have  not  considered  the  question 
of  the  power  of  the  District  courts  to  issue  writs  of  habeas  corpus  in  cases  of  this  general 
character.  When  the  cause  was  argued  at  bar,  we  understood  that  no  such  question 
was  raised;  but  a  ruling  on  the  question  we  have  discussed  was  desired  by  the  authori- 
ties of  both  the  War  and  Navy  Departments,  as  well  as  the  relator.  We  have  there- 
for? disposed  only  of  the  question  raised  at  the  argument.  (United  States  ex  rel. 
Davis  v.  Waller,  225  Fed.  Rep.  673.) 

The  accused,  through  counsel,  moved  for  an  order  discharging  him  from  custody 
under  the  sentence  of  the  naval  court-martial,  which  order  was  accordingly  made- 
by  the  Judge.  (See  G.  C.  M.  Rec.  No.  30533;  File 26251-9965.)  C.  M.  0. 31, 1915,6-10. 

8.  Same— Section  1621  of  the  Revised  Statutes  is  "explicit  in  saying  that  when  such 

an  order  is  made  by  the  President,  the  Marine  Corps  shall  be  subject  to  the  rules  and 
articles  of  war  prescribed  for  the  jsovernment  of  the  Army,  and  then  of  course  it  be- 
comes a  'corps  of  the  Army.'"  This  situation  is  to  be  distinguished  from  that  in 
which  the  Marine  Corps  may  cooperate  with  the  Army  without  an  order  of  the  Presi- 
dent detaching  it  for  service  with  the  Army,  which  is  a  case  "of  cooperation,  but  not 
of  incorporation."  (28  Op.  Atty.  Gen.  19.)  File  26251-9965:17,  J.  A.  G.,  Aug.  31. 1915. 

9.  Same— An  analysis  of  section  1621  shows  that  it  contains  three  parts,  namely,  1. 

It  provides  that  under  normal  conditions  marines  shall  be  subject  to  the  laws  and 
regulations  of  the  Navy;  2.  That  when  detached  by  the  President  for  service  with  the- 
Army,  marines  shall  not  be  subject  to  naval  jurisdiction;  and  3.  It  makes  provision 
for  the  special  condition  existing  when  marines  are  so  serving  with  the  Annyj  by 
providing  that  they  shall  then  "  be  subject  to  tne  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Armv."  File  26251-9965:17. 

10.  Same — It  is  well  established  that  the  Marine  Corps  occupies  a  dual  status,  that  under 
normal  conditions  it  is  a  part  of  the  Navy,  but  that  when  detached  for  service  with  the 
Army  it  becomes  a  part  of  the  Army.  Therefore,  the  status  of  a  marine  detached 
does  undergo  a  change  in  consequence  of  his  transfer  to  Army  jurisdiction.  In  other 
words,  it  is  not  merely  a  change  in  the  laws  to  which  he  is  subject,  but  a  change  in  his- 
status,  and  while  serving  with  the  Army  he  is  a  part  of  the  Army  just  as  fully  as  are 
privates  who  have  actually  enlisted  in  the  Army.  File  26251-9965. 

MARK  OF  DESERTION.   See  also  REMEDIAL  LAWS. 

1.  Civil  War  cases.    See  File  19974-3,  Sec.  Navy:  26539-551,  J.  A.  G.,  17, 1913;  26539-458:2,  J. 

A.  G.,  Apr.  25, 1912;  26539-750,  J.  A.  G.,  Nov.  8,  1916. 

2.  Clemency  promised — In  a  case  where  it  appeared  from  the  record  of  proceedings  and 

from  the  files  of  the  department,  that  through  inadvertence  an  accused  convicted  of 
desertion  was  given  to  understand  that  if  ho  surrendered  himself  the  mark  of  desertion 
in  his  case  would  be  removed,  so  much  of  the  sentence  as  provided  for  confinement 
was  remitted,  and  he  was  dishonorably  discharged  in  accordance  with  the  sentence, 
C.  M.  O.  6,  1894.  See  also  DESERTION,  130. 

3  Definition — The  entry  on  the  enlistment  [service]  record,  that  the  party  was  charged 
with  having  deserted  on  a  certain  date.  File  26251-1963:1,  J.  A.  G.,  Aug.  17, 1910, 
pp.  4, 5. 

4.  Pardon  Issued  to  a  deserter— A  pardon  issued  to  a  deserter  from  the  Navy  does  not 

authorize  the  Navy  Department  to  remove  the  mark  oi  desertion  entered  on  its 
records,  the  entry  being  one  of  fact,  which  is  not  altered  by  the  pardon.  File  26251- 
1963:1,  Aus.  17,  1910;  compare,  file  1768-D,  1902. 

5.  Removal  of— From  records.    See  File  26539-458:2,  J.  A.  G.,  Apr.  25,  1912. 

6.  Same — The  mark  of  desertion  can  not  under  the  law  be  removed,  unless  it  be  conclu- 

sively shown  to  have  been  erroneously  entered.  File  7657-209,  J.  A.  G.,  Nov.  17,  1913. 
See  also  File  26251-12396:2,  J.  A.  G.,  Oct.  30,  1916. 


372  MARK   OF  DESERTION. 

7.  Same — In  the  absence  of  legislative  requirement,  the  mark  of  desertion  should  not  be 

removed  from  the  department's  records  in  any  case  unless  it  is  made  to  appear,  as  a 
matter  of  fact,  that  such  mark  was  erroneously  entered.  File  26251-1963:1,  J.  A.  G., 
Aug.  17. 1910.  See  also  File  26251-12396:2,  J.  A.  G.,  Oct.  30,  1916.  . 

8.  Same— Where  it  was  recommended  that  the  charge  of  desertion  be  removed  from  the 

record  of  a  deceased  enlisted  man  the  department  stated:  "  In  the  absence  of  evidence 
showing  that  the  charge  of  desertion  appearing  upon  the  records  against  the  name  of 
*  *  *  was  erroneously  entered  or  retained,  it  is  not  within  the  power  of  the  Presi- 
dent to  remove  such  charge.  The  official  record  of  a  fact  of  this  nature,  where  no 
error  has  been  made  therein,  can  not  be  changed  by  executive  authority."  File 
3846-98,  Sec.  Navy,  June  10,  1898. 

9.  War— Act  of  August  14,  1888.  does  not  authorize  removal  of  mark  of  desertion.    File 

19475-5,  Sec.  Navy,  Nov.  17,  1915. 

MARRIAGE.    See  also  WEDDINGS;  WIFE. 

1.  Common  law.    See  DEATH  GBATUITY,  12;  WiFE,5. 

2.  Prisoner — Permission  granted  by  the  Secretary  of  the  Navy  to  general  court-martial 

prisoner  to  marry,  should  both  parties  consent  and  should  the  girl  appear  for  that 
purpose  at  the  Naval  Prison,  Portsmouth,  N.  H.  File  26251-11340:18,  Sec.  Navy, 
Feb.  15,  1916. 

MARSHAL,  U.  S.    See  REWARDS,  3. 

MARTIAL  LAW. 

1.  Haiti.    See  File  5520-39,  J.  A.  G.,  March  7,  1916. 

MARTYR.    . 

1.  Accused  as.    See  CHALLENGES,  23. 

MAST.    SeeC.  M.  0.86,1398,  1. 

MASTERS. 

1.  General  court-martial— Tried  by.    G.  0. 211,  June  7, 1S70;  C.  II.  O.  39,  1SSO;  20, 1881; 

10,  1882;  21,  1882. 

2.  Grade  of— By  act,  March  3, 1883  (22  Stat.  472),  the  title  of  the  grade  of  master  was  changed 

to  that  of  lieutenant.    G.  O.  305,  Mar.  31,  18S3. 

MASTER-AT-ARMS . 

1.  Superior  officer.    C.  M.  O.  31, 1908,  3. 

MATES.    See  also  DISMISSAL,  12. 

1.  Deposits.    See  DEPOSITS,  4. 

2.  General  court-martial— Tried  by.    C.  M.  O.  54,  1892;  G.  C.  M.  Rec.  28932. 

3.  Retirement.    See  File  3031-57,  J.  A.  G.,  June  25,  1908. 

4.  Sentences  of  dismissal — Approval  by  President  unnecessary.    See  MATES,  5;  File 

26255-14/A,  etc.,  J.  A.  G.,  May  4,  1909. 

5.  Status  of — Mates  are  neither  commissioned  nor  warrant  officers  and  their  status  may 

be  compared  with  that  of  paymasters'  clerks,  i.  e.,  the  approval  of  the  President 
of  a  sentence  involving  dismissal  of  a  court-martial  is  unnecessary,  the  sentence 
becoming  operative  upon  the  approval  of  the  convening  authority. 
€.  Same  -Mates  nave  been  held  by  the  Attorney  General  te  be  officers  of  the  Navy  with  n 
the  meaning  of  the  act  of  June  29,  1906  (34  Stat.  554).  File  20509-33,  J.  A.  G.,  Mar. 
24,  1910,  p.  5. 

7.  Same— Mates  are  officers  not  holding  commissions  or  warrants,  and  not  entitled  to  them, 

bnt  are  petty  officers  promoted  by  the  Secretary  of  the  Navy  from  seamen  of  inferior 
grades.  They  are  distinguished  from  other  petty  officers  only  in  the  fact  tnat  their 
pay  is  fixed  by  statute  instead  of  by  the  President.  From  this  it  would  seem  to 
follow  that,  although  their  pay  is  fixed  by  law,  instead  of  by  the  President,  they  are 
in  other  respects  entitled  to  the  emoluments  of  petty  officers.  (U.  S.  v.  Fuller,  100 
U.  S.,  593.)  File  3031-57,  J.  A.  G.,  June  25,  1908,  p.  3.  See  also  R.  S.  1409,  1410. 

8.  Superior  officer— A  mate  is  held  by  Navy  Regulations,  1913,  R-04,  to  be  a  superior 

officer  within  the  meaning  of  the  Articles  for  the  Government  of  the  Navy.  C.  M.  O . 
49, 1915, 19.  See  also  OFFICERS,  33. 

MAYHEM.    See  also  WORDS  AND  PHRASES. 
1.  Enlisted  man— Charged  with.    C.  M.  O.  22,  1916,  2. 


MEDICAL  OFFICEES  OF  THE   NAVY.  373 

MEDALS. 

1.  Foreign  Governments— Acceptance  by  officers  and  enlisted  men  of  the  naval  service. 

See  DECORATIONS. 

2.  Good  conduct  medals.    See  GOOD  CONDUCT  MEDALS. 

3.  Honor — Medals  of  honor.    See  MEDALS  OF  HONOR. 

MEDALS  OF  HONOR. 

1.  Act  of  March  3, 1915  (38  Stat.  931)— Provides  in  part,  "The  President  of  the  United 

States  is  hereby  empowered  to  prepare  a  suitable  medal  of  honor  to  be  awarded  to 
any  officer  of  the  Navy,  Marine  Corps,  or  Coast  Guard  who  shall  have  distinguished 
himself  in  battle  or  displayed  extraordinary  heroism  in  the  line  of  his  profession." 
Under  the  authority  of  the  foregoing  statute  the  Secretary  of  the  Navy  awarded 
medals  of  honor  to  officers  of  the  Navy  and  Marine  Corps  who  participated  in  the 
occupation  of  Vera  Cruz,  Mexico,  in  1914.  See  File  8627-189,  J.  A.  G.,  May  12,  1915. 
See  also  White  v.  U.  S.,  191  U.  S.  552. 

2.  Clemency — Medals  of  Honor  as  grounds  for  clemency  in  court-martial  cases.    See 

CLEMENCY,  34. 

3.  Coast  Guard— In  so  far  as  concerns  the  award  of  medals  of  honor  to  the  Coast  Gitard, 

under  the  provisions  of  the  act  of  March  3, 1915  (38  Stat.  931),  it  may  be  remarked  that, 
except  when  serving  as  a  part  of  the  Navy  in  time  of  war  or  when  the  President  shall 
so  direct,  this  appears  to  be  a  matter  under  the  Secretary  of  the  Treasury,  who  would 
be  empowered  to  construe  the  law  for  his  department.  File  8027-189,  J.  A.  G.,  May 
12,  1915. 

4.  Corean  forts — An  enlisted  man  was  given  a  Medal  of  Honor  for  personal  valor  in  the 

engagement  connected  with  the  capture  of  the  Corean  Forts,  June  9,  10,  1S71.  Held: 
that  the  expedition  which  resulted  in  the  capture  of  the  Corean  Forts,  June  9, 10, 1871, 
comes  within  the  meaning  of  the  words  "in  any  war"  as  used  in  the  act  of  April  27, 
1910  (39  Stat.  53).  File  28653-1,  Sec.  Navy,  July  24, 1916.  See  G.  O. 109,  Feb.  8,  1872, 
which  awarded  Medals  of  Honor  to  six  marines  and  five  bluejackets  for  heroism 
"In  the  attack  on  and  capture  of  the  Corean  Forts,  June  11, 1871;1'  G.  O. 180,  Oct.  10, 
1872,  which  awarded  Medals  of  Honor,  as  above,  to  two  landsmen. 

5.  Desertion— Forfeiture  of  Medals  of  Honor  by  desertion.    See  G.  O.  59,  June  22, 1865. 

6.  Laws  relating  to.    See  File  7741-58.    See  also  File  8627-189:1,  J.  A.  G.,  March  23,  1916. 

7.  Vera  Cruz,  Mexico— Medals  of  Honor  awarded.    See  MEDALS  OF  HONOR,  1 . 

MEDICAL  ATTENDANCE.    See  also  FAMILIES. 

1.  Families  of  officers— There  is  no  provision  of  law  which  prohibits  professional  attend- 
ance by  medical  officers  upon  families  of  officers  of  the  naval  service,  and  if  such  at- 
tendance does  not  interfere  with  the  necessary  service  to  officers  and  men  of  the  Navy 
and  Marine  Corps,  it  is  not  contrary  to  law.  File  28019-17,  J.  A.  G.,  Jan.  26, 1912. 

MEDICAL  BOARD  OF  SURVEY.    See  C.  M.  O.  24,  1914. 

MEDICAL  CERTIFICATES. 

1.  Accident  policy  of  officers — Surgeons  can  not  sign  unofficial  medical  certificates  on  acci- 

dent policy  of  officer.    File  26806-15;  5195-01:1.    See  also  ACCIDENT  POLICY,  1. 

2.  Record  of  proceedings.    See  CONFINEMENT,  5. 

3.  Insurance  policy.    See  MEDICAL  RECORDS,  3. 

MEDICAL  EXAMINERS. 

Board  of.    See  BOARD  OF  MEDICAL  EXAMINERS. 

MEDICAL  EXPERT  WITNESSES.    See  EXPERT  WITNESSES. 

MEDICAL  OFFICERS  AND  ENLISTED  MEN. 

1.  Army— Serving  with  a  body  of  Marines  detached  for  service  with  Army.  See  MARINES 
SERVING  WITH  ARMY,  4. 

MEDICAL  OFFICERS  OF  THE  NAVY. 

1.  Disbursing  officer,  special— Appointment  as.    See  File  7039-279,  J.  A.  G.,  Jan.  18, 

1913. 

2.  Drunk — A  medical  officer  mitrht  be  called  at  any  time  to  render  professional  services 

of  vital  importance,  and  if  he  is  drunk  he  is  incapacitated  for  such  work.  C.  *M.  O. 
43,  1915,  2.  See  also  DRUNKENNESS,  57,  58;  MEDICAL  OFFICERS  OF  THE  NAVY,  4, 11. 

3.  Same— Only  one  on  board  ship.    C.  M.  O.  52,  1882. 

4.  Same — "Every  naval  officer,  and  especially  a  medical  officer,  whose  use  of  intoxicants 

is  carried  to  such  an  extent  that  his  superiors  cause  him  to  be  tried  and  who  is  con- 


374  MEDICAL    OFFICEKS  OF   THE    NAVY. 

victed  of  drunkenness  on  duty,  should  be  sentenced  to  dismissal  from  the  Navy  and 
such  sentence  should  be  inexorably  carried  into  execution.  Whatever  charity  or 
assistance  may  be  extended  to  such  officers  should  be  given  when  they  reach  some 
other  walk  in  life  than  the  naval  service.  They  are  worthless  members  of  their  pro- 
fession, and  should,  in  every  case,  be  forced  off  the  list  of  officers  of  the  Navy."  C.  M.  O. 
101,  1906. 

5.  Duty  of— Includes  attendance  upon  families  of  officers  of  Navy  and  Marine  Corps. 

See  FAMILIES;  MEDICAL  ATTENDANCE,  1. 

6.  Hospital  ships— Command  of.    See  File  15285-59:3. 

7.  Neglect  of  duty — Tried  by  general  court-martial  for  failing  to  proceed  on  board  a 

torpedo  boat  when  directed  to  render  medical  assistance  to  an  enlisted  man  who  was 
seriously  ill,  C.  M.  O.  12, 1908, 1. 

In  a  case  where  a  medical  officer  neglected  his  duty  in  that  he  wilfully  neglected  to 
go  on  board  a  vessel  and  attend  to  a  sick  enlisted  man  when  he  had  "ample  time  and 
opportunity  to  perform  such  service,"  the  department  in  part  stated:  "In  his  pro- 
fession, more  than  in  any  other  branch  of  the  service,  prompt  attention  to  the  calls  of 
duty  is  especially  demanded.  Its  neglect  may  at  any  time  prolong  or  increase  suffer- 
ing, and  even  involve  the  sacrifice  of  life. 

"A  surgeon  should  never  be  deaf  to  the  appeals  of  those' who  have  the  legal  right  to 
his  aid  and  services."  C.  M.  O.  1,  1882,  3. 

8.  Private  practice.    See  File  17088-8,  Jan.  4,  1910;  6320-9,  15,  and  15:1,  Bu.  Nav. 

9.  Retired  officers— May  be  employed  on  active  duty.    C.  M.  O.  22. 1915, 10. 

10.  Unprofessional  conduct— A  medical   oflicer  attempted  to  shield  a  commanding 

officer's  abandonment  of  post  "by  the  execution  of  *  *  *  two  unprofessional  and 
disingenuous  certificates."  C.  M.  O.  59,  1882,  7. 

11.  Vulgar  and  indecent  acts — Medical  officers  of  the  Navy  are  professionally  brought 

into  the  most  confidential  and  intimate  relations  with  other  officers  of  the  Naval 
Service  where  they  may  be  stationed,  the  families  of  such  officers,  and  members 
of  the  Nurse  Corps  (female)  of  the  Navy,  who  may  be  so  situated  that  they  can  not, 
if  they  would,  receive  medical  treatment  other  than  that  furnished  them  by  such 
officers. 

Therefore  a  medical  oflicer  guilty  of  vulgar  and  indecent  acts  and  associations 
should  be  sentenced  to  dismissal.  Any  other  sentence  would  put  the  members  of 
the  general  court-martial  on  record  as  considering  him  a  fit  and  proper  person  to 
treat  said  members,  their  associates  in  the  Naval  Service,  and  the  ladies  of  their 
families,  in  a  professional  capacity. 

The  department  could  not  assume  the  responsibility  of  ordering  to  duty  in  the 
Navy  a  medical  officer  who  had  been  found  guilty  by  general  court-martial  of  such 
offenses,  even  though  he  should  not  be  sentenced  to  dismissal.  File  26251-11181, 
Sec.  Navy,  Dec.  17, 1915;  G.  C.  M.  Rec.  No.  31436. 

MEDICAL  RECORDS. 

1.  Hospital  records— Where  satisfactory  reasons  are  given  by  a  man  formerly  in  the  naval 

service,  in  his  request  for  a  copy  of  the  medical  record  of  his  case,  the  department 
willfurnish  such  to  the  man  himself  or,  if  dead  to  his  next  of  kin,  upon  proof  of  identity, 
if  such  a  record  is  available.  But  such  records  are  considered  private  and  confidential 
by  the  department.  File  5195-61:1,  J.  A.  G.,  March  21,  1912. 

2.  Line  of  duty  entries  (R-29O2).    See  File  7657-313,  J.  A.  G.,  Sept.  28,  1915;  7657-298, 

J.  A.  G.,  Sept.  28, 1915;  7657-309,  Sec.  Navy,  Sept.  30, 1915. 

3.  Private  and  confidential— It  has  been  the  practice  of  the  department  to  consider  a 

man's  medical  record  as  private  and  confidential  and  that  it  should  be  given  to  no 
one  but  the  man  himself,  or  if  dead,  to  his  next  of  kin,  and  furthermore,  that  such 
action  is  to  be  taken  only  upon  application  to  the  department  direct. 

The  department,  therefore,  held  that  the  filling  out  of  a  blank  certificate  for  an 
insurance  company,  giving  the  medical  history  of  an  enlisted  man  while  a  patient 
at  a  naval  hospital  by  a  naval  medical  officer,  without  authority  of  the  department, 
was  an  unwarranted  and  unauthorized  act  on  the  part  of  the  medical  oflicer.  File 
12475-52:8,  Sec.  Navy,  Dec.  12,  1914;  C.  M.  O.  6,  1915,  14.  See  also  File  5942-262:1, 
Sec.  Navy,  June  17, 1916.  See  also  12475-70:2  and  3,  Sec.  Navy,  Feb.  25, 1916  in  which 
»  information  was  furnished  in  answer  to  interrogatories  submitted  to  a  commission 
duly  issued  to  take  the  testimony  of  the  Surgeon  General  of  the  Navy  in  Washington, 
D.  C. 


MEDICAL   RECORDS.  375 

4.  Same— The  provisions  of  Court-Martial  Order  No.  6,  1915,  page  14,  do  not  prohibit  the 

Bureau  of  Medicine  and  Surgery  from  supplying  to  an  enlisted  man,  or,  after  his 
death,  to  his  next  of  kin,  his  medical  record,  as  heretofore.  The  instructions  contained 
in  the  order  above  cited,  "that  such  action  is  to  be  taken  only  upon  application  to 
the  department  direct,"  were  not  intended  as  a  restriction  upon  the  action  of  the 
Bureau  of  Medicine  and  Surgery,  which  acts  for  the  department,  but  only  upon 
the  action  of  officers  other  than  the  Chief  of  the  Bureau.  File  26510-1207,  Sec.  Navy, 
June  14,  1915.  See  also  G.  O.  121,  Sept.  17, 1914,  p.  9,  sec.  18  (c);  C.  M.  O.  22, 1915,  9. 

5.  Same— Navy  Regulations,  1913  R-295S  provides  that  "the  medical  officer  shall  not 

£ive  an  unofficial  certificate  of  ill  health  or  of  inability  to  perform  any  duty. ' '  There- 
fore, a  medical  officer  is  not  authorized,  without  approval  by  the  department  in  each 
specific  case,  to  (a)  sign  the  form  used  in  secret  fraternal  orders  to  secure  sick  dues; 
(b)  to  sign  a  death  certificate,  for  presentation  to  a  secret  society  or  lodge  having 
death  benefits;  or  (c)  fill  out  insurance  blanks  in  the  case  of  death  of  a  naval  patient. 
It  is  to  be  understood  that  this  opinion  relates  to  the  medical  records  of  officers  and 
enlisted  men  to  the  naval  service  who  have  been  patients  of  the  medical  officer  of 
whom  the  certificates  are  requested.  Where  certificates  of  death,  required  by  State 
laws,  in  connection  with  the  transportation  of  remains  are  required,  such  certificates 
would  be  "official  certificates,"  and  would  not  come  under  the  prohibition  of  Navy 
Regulations,  1913,  R-2958.  (See  C.  M.  0. 6, 1915,  p.  14;  22, 1915,  p.  9.)  File  12475-52:10, 
J.  A.  G.,  Aug  5, 1915;  C.  M.  O.  29, 1915,  7.  See  also  File  12475-70:2, 3,  Sec.  Navy,  Feb. 
25,  1916;  12475-71,  J.  A.  G.,  March  16,  1916;  12475-52:10,  Aug.  5,  1915;  12475-52:8.  Dec. 
5. 1914;  26806-15,  April  8,  1909;  Naval  Instructions,  1913,  1-26;  File  12475-90,  J.  A. 
G.,  Sept.  25,  1916. 

6.  Same — "You  are  hereby  authorized  to  attend  the  Surrogates'  Court  of  King's  County, 

New  York,  if  duly  subpoenaed,  and  to  furnish  all  such  information  as  the  court  may 
hold  proper  as  to  the  mental  and  physical  condition  of  late.  *  *  *  Chief  Carpenter, 
U.  S.  Navy,  retired."  File  12475-70:1,  Sec.  Navy,  Feb.  9, 1916. 

MEDICAL  RESERVE  CORPS  OF  THE  ARMY. 

1.  Act  establishing.    See  MEDICAL  RESERVE  CORPS  OF  THE  NAVY,  1. 

MEDICAL  RESERVE  CORPS  OF  THE  NAVY. 

1.  Appointment  of  officers  to— The  act  of  August  22,  1912  (37  Stat.  344),  established  a 

Medical  Reserve  Corps  in  the  Navy  "under  the  same  provisions,  to  all  respects, 
*  *  *  as  those  providing  a  Medical  Reserve  Corps  for  the  Army."  The  act  es- 
tablishing a  Medical  Reserve  Coips  for  the  Army  provides  to  part : 

"That  nothing  to  this  act  shall  be  construed  *  *  *  to  prohibit  an  officer  of 
the  Medical  Reserve  Corps  not  designated  for  active  duty  from  service  with  the 
militia,  or  with  the  volunteer  troops  of  the  United  States,  or  in  the  service  of  the 
United  States  to  any  other  capacity,  but  when  so  serving  with  the  militia  or  with 
volunteer  troops,  or  when  employed  in  the  service  of  the  United  States  to  any  other 
capacity,  an  officer  of  the  Medical  Reserve  Corps  shall  not  be  subject  to  call  for  duty 
under  the  terms  of  this  section."  (35  Stat.  68.) 

The  law  authorizing  the  appointment  of  Acting  Assistant  Surgeons  reads  in  part 
as  follows: 

"The  President  is  hereby  authorized  to  appoint  for  temporary  service  twenty-five 
acting  assistant  surgeons,  who  shall  have  the  relative  rank  and  compensation  of 
assistant  surgeons."  (30  Stat.  380.) 

In  view  of  the  above,  officers  of  the  Medical  Reserve  Corps,  not  on  active  duty,  are 
available  for  appointment  as  Acting  Assistant  Surgeons,  but  while  so  serving  they  can 
not  be  called  into  active  service  as  officers  of  the  Medical  Reserve  Corps.  File  28407-13, 
J.  A.  O.,  March  24, 1915;  C.  M.  0. 12, 1915, 10.  See  also  File  28407-16,  J.  A.  G.,  July  31, 
1915. 

2.  Board  of  Medical  Examiners — Medical  Reserve  Corps  officers  eligible  as  members. 

See  BOARDS  OF  MEDICAL  EXAMINERS,  3,  4. 

3.  Dental  Reserve  Corps— Not  established  by  act,  August  22,  1912  (35  Stat.  08),  but 

authority  is  contained  in  such  act  for  appointment  of  dentai  surgeons  to  Medical 
Reserve  Corps.  See  DENTAL  RESERVE  CORPS.  See  also  File  13707-20:2,  J.  A.  G., 
Dec.  28, 1912;  C.  &  S.  C.,  4,  6.  But  see  Act,  Mar.  4,  1913  (37  Stat.  903),  and  Act, 
Aug.  29,  1916  (39  Stat.  574),  which  did  establish  a  Dental  Reserve  Corps. 

4.  Discharge — "The  President  is  authorized  to  honorably  discharge  from  the  Medical 

Reserve  Corps  any  officer  thereof  whose  services  are  no  longer  required."  (Act. 
August  22,  1912  (35  Stat.  68).)  This  provision,  while  permissive  to  form,  might  well 


376  MEDICAL   RESERVE   CORPS  OF  THE   NAVY. 

be  construed  as  mandatory,  under  settled  rules  of  statutory  construction.    File 
28407-16,  J.  A.  G.,  July  31,  1915. 

5.  Government  Hospital  lor  the  Insane— Pay  while  at.    File  10000-74:2,  Sec.  Navy, 

June  19,  1910. 

6.  Indian,  American.    See  INDIANS,  4. 

7.  Retirement.    See  File  20256-413:2,  Sec.  Navy,  July  14, 1916. 

8.  Title  of  officers.    See  File  13707-21,  J.  A.  G.,  Nov.  8,  1912. 

MEDICAL  TREATMENT. 

1.  Families  of  officers.    See  FAMILIES;  MEDICAL  ATTENDANCE,  1. 

2.  Prophylactic  treatment.    See  PROPHYLACTIC  TREATMENT. 

3.  Refusal  to  submit  to.    See  SURGICAL  OPERATIONS,  3,  6. 

MEDICINE  AND  SURGERY,  BUREAU  OF.    See  BUREAU  OF  MEDICINE  AND  SURGERY. 

MEMBERS  OF  COURTS-MARTIAL. 

1.  Absent — Not  attending  court  by  virtue  of  written  permission  of  president  of  general 
court-martial— A  certain  officer  of  the  Navy  did  not  sit  as  a  member  of  the  court 
although  the  precept  under  which  the  court  was  constituted  ordered  him  to  duty 
thereon. 

He  appears  to  have  been  absent  by  virtue  of  a  letter  addressed  to  him  on  the  date 
of  trial  and  signed  by  the  president  of  the  court,  in  which  it  is  stated,  in  part:  "You 
are  hereby  authorized  to  aosent  yourself  from  the  court-martial  meeting  aboard  this 
vessel  to-day  to  try  the  case  of  *  *  *,  coal  passer,  United  States  Navy." 

It  is  specifically  provided  in  article  1703  (1 ),  United  States  Navy  Regulations  [Navy 
Regulations,  1913,  R-704  (1  )],that  an  officer  detailed  for  duty  on  a  general  court-martial 
or  court  of  inquiry  is,  while  so  serving,  exempt  from  other  duty,  except  in  cases  of 
emergency,  to  be  ntdged  of  by  his  commanding  officer,  who  shall,  in  case  he  requires 
such  officer  to  perform  other  duty,  at  once  communicate  with  the  convening  authority 
assigning  the  reasons  for  his  action. 

A  member  or  judge  advocate  becomes  or  is  relieved  as  such  only  by  order  of  a  lawful 
convening  authority.  (Forms  of  Procedure,  1910,  p.  18.) 

The  president  of  the  court  was  therefore  without  any  authority  in  relieving  this 
officer  from  duty  to  which  he  had  been  assigned  by  superior  authority. 

However,  in  view  of  the  fact  that  six  members  remained  on  the  court  and  the  court 
was  not  reduced  below  the  legal  requirement,  the  foregoing  irregularity  was  not 
deemed  of  sufficient  importance  to  invalidate  the  proceedings.  C.  M.  O.  30,  1910,  7. 
See  also  MEMBERS  OF  COURTS-MARTIAL,  12. 

.  2.  Same— "No  explanation  can  be  offered,  he  having  been  detached  from  this  station"— 
In  reviewing  the  record  of  proceedings  of  a  general  court-martial  it  was  observed 
that  one  of  the  members  of  the  court  was  not  present,  the  record  stating  "  No  explana- 
tion can  be  offered,  he  having  been  detached  irom  this  station  June  11, 1912." 

The  detachment  of  an  officer  from  his  ship  or  station  does  not,  of  itself,  relieve  him 
from  duty  as  a  member  or  judge  advocate  of  a  general  court-martial;  specific  orders 
for  such  relief  are  necessary.  (Navy  Regulations,  1913,  727  (3);  Forms  of  Procedure 
1910,  p.  19;  A.  G.  N.  40.)  The  foregoing  also  appeared  in  the  precept. 

In  case  of  an  order  from  a  superior  officer,  trie  provisions  of  Navy  Regulations 
[Navy  Regulations,  1913,  R-1513  (2)]  shall  be  complied  with.  The  report  of  circum- 
stances shall  be  forwarded  by  the  member  receiving  such  order  to  the  convening 
authority  through  the  president  of  the  court,  and  a  copy  of  such  report  shall  be  at- 
tached to  the  record  of  each  case  to  which  it  applies.  (Navy  Regulations,  1913, 
R-727  (2);  Forms  of  Procedure,  1910,  p.  19.)  Undoubtedly,  it  was  the  duty  of  the 
absent  member  to  have  furnished  the  report  required  in  this  case,  but  when  he  failed 
to  do  so  the  president  of  the  court  should  have  addressed  to  him  a  request  for  the 
necessary  report.  (Navy  Regulations,  1909,  R-207[Navy  Regulations,  1913,  R-1.501].) 
Provided  the  absent  member  had  no  order  from  a  superior  officer  suspending  or 
modifying  his  orders  from  the  convening  authority  as  contained  in  the  precept,  what- 
ever statement  he  had  to  make  in  the  premises  should  have  been  obtained  and  for- 
warded by-  the  president  of  the  court  to  the  convening  authority  and  a  copy  thereof 
attached  to  the  record.  C.  M.  O.  23,  1912,  5.  See  also  ORDERS,  3,  42,  43,  44. 
3.  Same — In  case  a  member  is  sick  he  shall,  if  able,  request  the  attending  medical  officer 
to  report  the  fact  of  his  sickness  to  the  convening  authority  and  such  request  shall 
be  complied  with.  The  report  shall  be  forwarded  through  the  president  of  the  court, 
and  a  copy  thereof  shall  be  attached  to  the  record  of  each  case  to  which  it  applies. 
When  the'member  is  able  to  resume  his  duties,  the  attending  medical  officer  shall  re- 
port such  fact  in  the  same  manner  as  above  provided.  (R-727  (4)). 


MEMBERS   OF   COURTS-MARTIAL.  377 

In  a  case  where  the  above  report  was  not  appended  to  the  record,  the  record  of 
proceedings  was  returned  and  the  court  in  revision  appended  the  necessary  certifi- 
cate. C.  M.  O.  98,  1893. 

4.  Same— Absence  of  president  of  a  general  court-martial  on  leave  of  absence  without 

knowledge  or  permission  of  convening  authority.    File  28025-417:4. 

5.  Same — No  member  of  a  general  court-martial  shall,  after  the  proceedings  are  begun, 

absent  himself  therefrom,  except  in  case  of  sickness,  or  of  an  order  to  go  on  duty  from 
a  superior  officer,  on  pain  of  being  cashiered.  (A.  G.  N.  4C.)  See  COURT,  170;  MEM- 
BERS OF  COURTS-MARTIAL,  2. 

C.  Same— A  court-martial  has  no  authority  to  excuse  any  of  its  members  from  sitting 
in  a  case  except  upon  challenge  duly  made  and  sustained  by  the  court.  C.  M.  0. 127, 
1900, 1.  See  also  CHALLENGES,  1. 

7.  Abuse  of  Power — Although  the  members  of  a  duly  constituted  and  organized  court- 

martial  can  not  be  dictated  to  or  interfered  with  in  their  proceedings  by  the  highest 
military  authority,  yet  they  are  collectively  and  individually  responsible  in  civil 
courts  for  abuse  of  power  or  illegal  proceedings.  (R-722.)  See  also  Spaldingi;.  Vilas, 
181  U.  8. 483;  Bradley  v .  Fisher,  13  Wall.  335;  Dynes  v.  Hoover,  20  How.  65;  Johnson  v. 
Duncan,  6  Am.  Dec.  679,  3  Martin  (La.)  530;  APPEALS,  8;  COUNSEL,  29, 36;  HABEAS 
CORPUS,  17;  REVISION,  24. 

8.  Accused  as  witness— A  member  should  not  in  general  object  to  a  question  the  answer 

to  which  would  incriminate  accused.    C.  M.  O.  49,  1910,  9;  8,  1913,  5. 

9.  Additional  member.    C.  M.  0. 34, 1901, 2. 

10.  Appeals — By  member  of  general  court-martial  from  criticism  of  convening  authority. 

See  CRITICISM  OP  COURTS-MARTIAL,  35. 

11.  Same — By  members  of  summary  court-martial  from  criticism  of  senior  officer  present. 

See  CRITICISM  OF  COURTS-MARTIAL,  36. 

12.  Authentication— The  omission  of  one  signature  of  the  members  of  the  court  to  the 

findings  and  sentence  will  have  no  effect  provided  a  legal  quorum  remained  and 
signed.    G.  C.  M.  Rec.  24534.    See  also  COURT,  175;  MEMBERS  OF  COURTS-MARTIAL,  1. 
A  member  may  be  ordered  to  sign  the  findings  and  sentence.    See  MEMBERS  OP 
COURTS-MARTIAL,  48. 

13.  Binding  of  records— Responsibility  of  members.    See  BINDING  OF  COURT-MARTIAL 

RECORDS. 

14.  Challenges.    See  CHALLENGES. 

15.  Civil  liability.    See  HABEAS  CORPUS,  17;  MEMBERS  OF  COURTS-MARTIAL,  7. 

16.  Convening  authority— Should  not  detail  himself  as  a  member.    See  COURT,  36. 

17.  Clemency— Recommendations  to  clemency  should  be  made  by  members,  not  court. 

See  CLEMENCV,  35;  COURT,  19. 

IS.  Competency  as  witnesses.    See  MEMBERS  OF  COURTS-MARTIAL,  54-56. 
19   Criminating  questions — Not  function  of  member  to  object  to  witness  being  asked 

criminating  questions.   C.  M.  O.49, 1910, 9;  8, 1913,  5.  SeeaZsoSELF-lNCRiMiNATioN,  16. 

20.  Conduct  of  the  proceedings— Members  of  the  court  are  responsible  for  the  dignified, 

orderly,  and  legal  conduct  of  the  proceedings  of  the  court.    C.  M.  O.  49,  1915,  10. 

21.  Court-martial  order— Names  published  in.  C.  M.  0. 38, 1915,  3. 

22.  Same— Members  should  consult,  study,  etc.    See  COURT-MARTIAL  ORDERS,  17, 18. 

23.  Criticism  by  convening  authority  and  department.    See  CRITICISM  OF  COURTS- 

MARTIAL. 

24.  Death  of  member  before  signing  record— In  a  case  where  a  member  of  a  summary 

court-martial  died  before  signing  the  record,  the  department  held,  that  the  death  of 
one  of  the  members  of  a  summary  court-martial  after  sentence  had  been  imposed, 
"but  before  he  had  appended  his  signature  to  the  sentence  as  required  by  law  and 
regulations,  does  not  render  the  sentence  void.  It  is  sufficiently  authenticated  if 
attested  by  the  other  members  of  the  court-martial.  Accordingly  the  record  in  such 
a  case  should  be  authenticated  by  the  signatures  of  the  other  members  of  the  sum- 
mary court-martial  and  forwarded  to  the  department  in  accordance  with  Navy  Regu- 
lations, 1913,  R-34,  R-624  (1).  File  26287-2817,  Sec.  Navy,  Mar.  2, 1915,  citing  23  Op. 
Atty.  Gen.  5f>0.  C.  M.  O.  12,  1915,  8. 

25.  Duty— Court-martial  duty  same  as  any  other— The  fact  that  an  officer  serving  as  member 

of  a  court-martial  is  individually  as  responsible  for  the  performance  of  that  duty  as 
of  any  other  duty  with  which  he  is  charged  is  not  open  to  question.  File  25675-9-10-11, 
Sec.  Navy,  Oct.  28,  1915,  p.  5.  See  also  COURT,  170. 

A  meniber  swears  to  "well  and  truly  try,  without  prejudice  or  partiality,  the  case 
now  depending,  according  to  the  evidence  which  shall  come  before  the  court  *  *  *," 
and  if  he  allows  his  vote  to  be  controlled  by  facts  known  to  himself  or  communicated 


378  MEMBERS  OF  COURTS-MARTIAL. 

to  him  by  another  member,  but  not  in  evidence,  or  by  his  personal  notions,  prejudices 
or  feelings,  he  is  chargeable  with  a  grave  dereliction  of  duty.  C.  M.  O.  4,1913,  59. 

In  determining  the  questions  of  fact  the  members  of  the  court  must  arrive  at  their 
conclusions  solely  from  the  evidence  that  is  adduced  or  comes  before  the  court  and 
not  from  any  knowledge  or  information  otherwise  acquired.  In  exercising  this  part 
of  its  function  a  court  is  assisted  by  a  knowledge  and  application  of  the  rules  of  evi- 
dence, but  no  considerable  knowledge  of  the  law  is  required.  It  is  to  this  duty  of 
deducing  the  facts  from  a  consideration  of  the  evidence  that  the  part  of  the  oath 
administered  to  members  requiring  them  to  try  a  case  "according  to  their  own  con- 
sciences" refers.  The  facts  having  been  found,  it  remains  for  the  court  to  apply  the 
law  to  them.  The  exercise  of  this  function  depends  not  on  the  consciences  of  the 
members  but  upon  a  knowledge  of  the  law.  A  comprehensive  knowledge  of  this 
subject  is  a  profession  in  itself,  and,  while  officers  of  the  naval  service  are  accountable 
for  the  information  promulgated  by  court-martial  orders  and  other  official  publica- 
tions, it  is  to  be  expected  that  cases  will  arise  in  which  naval  courts  will  require  assist- 
ance in  applying  the  more  intricate  provisions  of  law.  Therefore,  if  by  reason  of  a 
lack  of  knowledge  of  the  law  a  court  arrives  at  an  incorrect  finding  or  unjustified 
sentence,  there  has  been  provided,  in  the  interests  of  justice,  a  means  of  correcting 
such  error.  The  department  may  return  the  record  for  further  consideration,  pointing 
out  what  the  law  is  and  how  it  should  be  applied.  In  such  event  the  court  is  not 
justified  in  disregarding  the  law  because  an  application  of  the  same  may  reach  a  result 
at  variance  with  the  individual  beliefs  of  a  majority  of  its  members.  It  is  only  right 
and  just  for  the  court  to  accept  the  law  as  laid  down  to  it  by  proper  authority  and  then 
to  come  to  its  findings  and  sentence  anew  accordingly.  C.  M.  O.  25,  1916,  4. 

26.  Exception — Should  not  be  entered  on  record  by  members.    See  EXCEPTIONS,  2. 

27.  Excusing  members  from  attending  court.    See  MEMBERS  OF  COURTS-MARTIAL,  6. 

28.  Findings  and  sentence — Quorum  has  to  sign.    See  MEMBERS  OF  COURTS-MARTIAL, 

12,  48. 

29.  Forms  of  procedure— Members  of  courts-martial  required  to  conform  to,  and  to 

follow  strictly  the  Forms  of  Procedure  by  which  they  are  governed.    See  COURT,  90. 

30.  Incompetent — A  member  oppointed  after  case  tried  and  completed  is  not  qualified 

to  sit  in  revision.    See  MEMBERS  OF  COURTS-MARTIAL,  44. 

31.  Jurors — Capacity  of  members  as.    See  COURT,  )06;  JURORS,  1. 

32.  Legal  liability.    See  COUNSEL,   36;  HABEAS  CORPUS,   17;  MEMBERS  OF  COURTS- 

MARTIAL,  7;  REVISION,  24. 

33.  New  members.    C.  M.  O.  74,  1899,  2;  53,  1901,  1.    See  also  MEMBERS  OF  COURTS- 

MARTIAL,  44. 

34.  Oaths.    See  OATHS. 

35.  Objections.    See  COURT,  121;  MEMBERS  OF  COURTS-MARTIAL,  52:  OBJECTIONS. 

36.  Orders— To  duty  as  members  of  courts-martial.    See  CONVENING  AUTHORITY,  32; 

COURT,  33-51;  SUMMARY  COURTS-MARTIAL,  48.  61. 

37.  Same— An  order  issued  bv  the  Secretary  of  the  Navy  relieving  an  officer  from  duty  at 

a  particular  station,  will  be  assumed  as  intended  to  relieve  such  officer  from  duty 
as  a  member  of  a  general  court-martial  of  which  the  Secretary  of  the  Navy  is  the 
convening  authority.  C.  M.  O.  125,  1900,  1. 

38.  Protest — Improper  to  enter  on  record.    See  EXCEPTIONS,  2. 

39.  Qualifications— An  officer  of  the  Navy  is  presumed  to  be  qualified  by  education  and 

experience  to  serve  as  a  member  of  a  court-martial;  it  is  also  presumed  that  he  has  in- 
formed the  lawful  authority  of  any  material  facts  which  might  disqualify  him  and 
that  it  has  rightfully  found  him  to  be  qualified.  The  practice  of  interrogating  jurors 
on  their  voir  dire  applies  to  persons  whose  fitness  for  service  is  not  established,  prima 
faci3,  by  similar  presumptions.  The  department  held  that  for  the  above  reasons 
the  accused  can  not  challenge  members  of  court  for  prejudice  unless  he  has  informa- 
tion warranting  a  charge  of  prejudice.  C.  M.  O.  128,  1905. 

That  an  officer  discharging  the  high  functions  resting  upon  a  member  of  a  general 
court-martial  will  disregard  the  obligations  9f  his  oath  and  duty,  can  not  be  accepted 
as  a  matter  of  assumption,  but  must  be  positively  and  affirmatively  shown  if  it  is  to 
be  established.  As  members  of  courts-martial,  officers  are  independent  of  higher 
authority,  certainly  in  the  exercise  of  their  judicial  functions,  and  the  recent  hisrory 
pf  courts-martial  shows  that  officers  generally  fully  understand  and  appreciate  their 
independence  while  in  the  discharge  of  those  duties.  Instances  are  not  uncommon 
where  courts,  after  having  been  instructed  by  the  convening  authority  (the  commander 
in  chief  or  the  department)  to  reconvene  for  the  purpose  of  reconsidering  a  sentence 
deemed  inappropriate  or  inadequate,  have,  notwithstanding  such  expression  by 
higher  authority,  adhered  to  their  action.  13  J.  A.  G.,  325,  June  11,  1904. 


MEMBERS   OF   COURTS-MARTIAL.  379 

40.  Questions — All  questions  originating  with  members,  and  which  have  been  received, 

are  recorded  as  "  by  the  court,"  but  when  made  the  subject  of  discussion  and  rejected 
they  are  recorded  as  "by  a  member."  C.  M.  O.  17,  1910,  7;  19,  1915,  3.  See  also 
WITNESSES,  40. 

41.  Record  of  proceedings.    See  RECORD  OF  PROCEEDINGS. 

42.  Reports  on  fitness— Summary  court-martial  members'  protest  against  entry  as  to 

manner  of  performing  duty.    See  REPORTS  ON  FITNESS,  3. 

43.  Responsibility  for  abuse  of  power.    See  COUNSEL,  36;  HABEAS  CORPUS,  17;  MEM- 

BERS OF  COURTS-MARTIAL,  7;  REVISION,  24. 

44.  Revision — An  officer  who  was  not  a  member  of  the  general  court-martial  which  tried 

the  accused,  but  subsequently  was  appointed  to  such,  renders  the  proceedings  in 
revision  illegal  if  he  sits  upon  the  court  during  the  proceedings  in  revision.  C.  M.  O. 
47,  1910,  10.  See  also  REVISION,  22. 

45.  Seating — Should  be  seated  in  the  order  hi  which  their  names  appear  in  the  precept. 

File  26504-192,  Sec.  Navy,  Oct.  28,  1913. 

46.  Suit  for  damages.    See  COUNSEL,  36;  HABEAS  CORPUS,  17;  MEMBERS  OF  COURTS- 

MARTIAL,  7;  REVISION,  24. 

47.  Service  on  courts-martial— Duty  of  the  highest  order.    See  COURT,  170;   MEMBERS 

OF  COURTS-MARTIAL,  25. 

48.  Signing  record  of  proceedings — An  officer,  a  member,  who  fails  to  sign  the  record 

of  proceedings  of  a  summary  court-martial,  may  be  ordered  to  do  so  by  the  convening 
authority,  as  the  signature  required  by  A.  G.  N.  52  is  for  the  purpose  of  authentica- 
tion and  does  not  necessarily  import  unanimous  concurrence  in  rulings,  findings, 
decisions,  and  other  action  taken.  File  1434-04,  J.  A.  G. 

49.  Title— Wrong  title  in  precept  does  not  invalidate.    See  CHALLENGES,  15. 

50.  Vote,  revealing.   See  OATHS,  47. 

51.  Witnesses — Examination  of,  by  members — Scope  of.    See  WITNESSES.  40-42. 

52.  Witness,  as — Resuming  status  to  consider  objections— While  a  member  of  the  court 

was  testifying  counsel  for  the  accused  entered  an  objection  to  a  question  (Rec.  p.  3), 
and  the  witness  resumed  his  status  as  member  to  deliberate  upon  the  objection. 
Since  the  court  consisted  of  only  five  members  this  action  was  proper.  If,  however, 
there  had  been  present  five  or  more  members  in  addition  to  the  member  who  was 
testifying,  the  department  holds  that  such  member  should  be  excluded  from  deliber- 
ation upon  the  objection  as  a  matter  of  propriety.  C.  M.  O.  49, 1915, 15;  overruling 
C.  M.  0. 14, 1911,  4.  See  also  MEMBERS  OF  COURTS-MARTIAL,  55. 

53.  Same — Not  to  be  shown  as  warned  or  withdrawing.    The  record  shall  state  that  he 

resumed  his  seat.    C.  M.  O.  15,  1910,  5;  26, 1910,  8;  31, 1910,  3. 

54.  Same— ^While  not  illegal,  it  is  considered  inadvisable  to  have  among  the  members 

constituting  a  court-martial  officers  who  appear  as  principal  witnesses  for  the  prose- 
cution, as  was  done  in  this  case.  Whenever  the  exigencies  of  the  service  will  permit, 
a  court  should  as  far  as  possible  be  composed  of  officers  who  are  not  cognizant  of 
detailed  circumstances  attendant  upon  offenses  for  which  an  accused  may  be  brought 
to  trial.  (See  Navy  Regulations,  1913,  R-702  (2);  G.  C.  M.  Rec.  No.  25157.)  G.  C.  M. 
Rec.  31874;  C.  M.  O.  9,  1916,  8. 

55.  Same — As  to  the  competency  of  members  of  courts-martial  to  act  as  witnesses,  it  is, 

in  general,  well  recognized  that  they  are  so  competent. 

The  president  or  any  member  of  a  court-martial,  as  also  the  judge  advocate,  may 
legally  give  testimony  before  the  court.  That  the  court,  at  the  time  of  a  member's 
testifying,  is  composed  of  but  five  members  will  not  affect  the  validity  of  the  pro- 
ceedings, since  in  so  testifying  he  does  not  cease  to  be  a  member.  It  is  in  general, 
however,  most  undesirable  that  the  judge  advocate,  and  still  more  that  a  member, 
should  appear  in  the  capacity  of  a  witness,  except  perhaps  where  the  evidence  to 
be  given  rejates  simply  to  the  good  character  or  record  of  the  accused. 

While  it  is  in  general  undesirable  that  a  member  of  a  military  court  should  testify 
as  a  witness  at  a  trial  had  before  such  court,  unless  perhaps  his  testimony  relates  to 
character  merely,  yet  the  fact  that  he  is  called  upon  to  testify,  while  it  does  not  affect 
the  validity  of  the  proceedings,  does  not  operate  to  debar  the  member  himself  from 
the  exercise  of  any  of  the  duties  or  rights  incident  to  his  membership.  He  remains 
entitled  to  take  part  in  all  deliberations,  including  indeed  those  had  in  regard  to  the 
admissibility  of  questions  put  to  himself  or  of  his  answers  to  questions.  (See  Army 
Digest,  1901.)  C.  M.  0. 14, 1911,  4.  See  also  MEMBERS  OF  COUETS-MAETIAL,  52.  ' 


380  MEMBERS   OP   COURTS-MARTIAL. 

56.  Same — Members  of  naval  courts-martial  may  testify  as  witnesses  in  a  case  and  then 
resume  their  seats  as  members.  (Navy  Regulations,  1913,  R-7S2.) 

The  procedure  of  a  member  of  a  court-martial  testifying  as  a  witness  has  been 
sustained  by  the  Supreme  Court  of  the  United  States  as  well  as  by  the  Court  of  Claims 
and  the  Attorney  General;  it  has  been  judicially  upheld  in  many  of  the  States  as  well 
as  being  expressly  authorized  by  statute  in  at  least  one  State.  It  has  been  practiced 
and  upheld  in  the  highest  court  of  England.  It  has  been  announced  by  allthe  best 
military  authorities,  both  American  and  English,  from  the  earliest  times,  and  its  le- 
gality is  expressly  upheld  by  Greenleaf  on  Evidence,  16th  edition,  456,  as  well  as  by 
many  other  authorities.  Under  the  settled  law  of  evidence  members  of  a  jury  are 
competent  witnesses  in  a  criminal  case  on  trial  before  them,  and  it  has  been  held  that 
"the  analogy  of  a  court-martial  is  that  of  a  jury  in  the  trial  of  a  civil  case,  the  ap- 
proving power  in  the  former  occupying  the  relation  of  the  judge  in  the  latter." 
(6  Op.  Atty.  Gen.  206.)  File  26251-0020:11,  Sec.  Navy,  July  7, 1913.  Seealso  G.  C.  M. 
Rec.  25157;  Keyes  v.  U.  S.,  15  Ct.  Cls.  533,  affirmed,  109  U.  S.  330;  15  Op.  Atty.  Gen.  434. 
•  57.  Witnesses  examined  In  absence  of  members— Whenever  any  member  of  a  court- 
martial,  from  any  legal  cause,  is  absent  from  the  court  after  the  commencement  of 
a  case,  all  the  witnesses  who  have  been  examined  during  his  absence  must,  when  he 
is  ready  to  resume  his  seat,  be  recalled  by  the  court,  and  the  recorded  testimony  of 
each  witness  so  examined  must  be  read  over  to  him,  and  such  witness  must  acknowl- 
edge the  same  to  be  correct  and  be  subject  to  such  further  examination  as  the  said 
member  may  require.  Without  a  compliance  with  this  rule,  and  an  entry  thereof 
upon  the  record,  a  member  who  shall  have  been  absent  during  the  examination  of  a 
witness  shall  not  be  allowed  to  sit  again  in  that  particular  case.  (A.  G.  N.  47.) 

These  requirements  are,  in  both  letter  and  spirit,  applicable  to  the  case  of  an  officer, 
taking  his  seat  as  a  member  of  a  court  during  the  progress  of  the  trial,  as  well  as  to 
that  of  one  temporarily  absent  after  the  proceedings  have  commenced.  Their  pur- 
pose is  to  place  the  new  member  in  substantially  the  same  attitude  as  other  members 
of  the  court  with  respect  to  the  testimony  adduced,  and  unless  this  be  done,  he  is 
not  qualified  to  act.  C.  M.  O.  74,  1899,  2.  See  also  C.  M.  O.  53,  1901,  1. 

MEMBERS  OF  BOARDS.    See  BOARDS,  2;  PRECEDENCE,  10. 

MEMORY. 

1.  Lapse  of — As  a  defense  in  "Fraudulent  enlistment."    See  FRAUDULENT  ENLISTMENT. 

23. 

2.  Leading  questions — To  aid  a  defective  memory.    Sec  I/KADING  QUESTIONS,  5,  15. 

3.  Refreshing  memory — Ofwitnessas.    S ee  COUNSEL,  5G;  JUDGE  ADVOCATE,  129;  WIT- 

NESSES, 9.5-99. 

MENTAL  IRRESPONSIBILITY.    See  INSANITY,  27. 

MERCHANT  VESSELS. 

1.  Collision— Enlisted  man  disappeared.    See  COLLISION,  13;  LINE  OP  DUTY  AND  MIS- 

CONDUCT CONSTRUED,  29. 

2.  Crews — Status  of  merchant  crews  in  time  of  war.    File  5194-9,  J.  A.  G.,  May  22,  1913. 

3.  Officer  as  expert  witness— The  Navy  Department  has  no  objection  to  a  certain  retired 

officer  testifying  "as  an  expert  witness  in  the  case  of  the  collision  between  two  steam- 
ships in  the  Savannah  River,  neither  of  said  steamships  being  Government  vessels." 
File  26276-125,  Sec.  Navy,  Nov.  22,  1915. 

4.  Officer  serving  as  a  member  of  board  of  survey  for  Lloyds — An  officer  acted  as  a 

member  of  a  Lloyds  board  of  survey  on  a  merchant  vessel.  lie  received  a  $25  check, 
which  he  deposited  with  the  paymaster  and  requested  a  decision  of  the  department 
as  to  his  right  to  retain  the  check.  Held,  Officers  of  the  Navy  may  not  "without 
permission  of  the  Executive"  claim  fees  for  services  rendered  by  them  on  "the  time 
of  the  United  States,"  and  because  of  their  character  as  such  officers,  as  members 
of  boards  of  survey  on  merchant  steamers  whether  of  American  or  foreign  registry. 
The  department  is  authorized  to  grant  or  deny  permission  to  this  officer  to  accept 
thisfee.  (See7Op.  Atty.  Gen.  756.)  File 2760 1-110:2,  J.  A.  G.,  May  17,1915.  (Permis- 
sion was  granted  to  accept  the  fee.  Bu.  Nav.  File  4189-95,  June  5,  1915.)  C.  M.  O. 
42,  1915,  10-11.  See  also  File  5194-230,  J.  A.  G.,  Aug.  24,  1916. 

MERRIMAC,  U.  S.  S. 

1.  Clemency — Extended  because  accused  (enlisted  man)  had  been  a  member  of  the  crew 

of  the  U.  S.  S.  Merrimac.    C.  M.  O.  69, 1904,  2.    See  also  CLEMENCY,  62. 

2.  Same— A  chief  boatswain  was  sentenced  to  "dismissal."    The  convening  authority 

approved  but  in  forwarding  the  record  to  the  President  recommended  the  sentence  be 


MERRIMAC,   U.  S.  S.  381 

mitigated  to  confinement  for  one  year  to  the  limits  of  his  ship  or  station  and  to  lose 
pay,  in  consideration  of  the  "gallant  conduct  of  the  accused,  then  a  coxswain,  on  board 
the  U.  S.  S.  Merrimac  on  June  3,  1898,  when  he  was  a  member  of  the  volunteer  crew 
which  sank  that  vessel  in  the  entrance  to  the  harbor  of  Santiago.  Cuba."  In  view 
of  this  recommendation  the  recommended  clemency  was  extended.  C.  M.  O.  32, 
1905.  See  also  CLEMENCY,  62. 

MESSES. 

1.  Members  of — Liability  of  members  for  debts  contracted  by  a   majority  vote.    File 

4824-1  and  2, 1906. 

2.  Same — In  a  case  where  a  wardroom  mess  steward  had  irregular  dealings  with  certain 

firms  the  Bureau  of  Navigation  in  part  stated:  "  Firms  employ  those  methods  prin- 
cipally because  they  feel  that  no  matter  what  use  such  credit  is  put  to,  the  threat  to 
take  the  matter  to  higher  authority  usually  leads  to  the  payment  of  any  claim.  The 
principle  is  now  at  stake  in  this  case  as  to  the  responsibility  of  the  wardroom  for 
unauthorized  bills  contracted  in  their  name.  Legal  methods  for  determining  this 
responsibility  are  at  the  disposal  of  this  company,  and  I  recommend  that  they  be 
informed  to  that  effect.  The  fact  once  firmly  established  that  officers'  messes  are  not 
responsible  for  unauthorized  bills  would  lead  to  the  elimination  of  irregularities  on  the 
parts  of  stewards  and  firms  with  whom  they  deal ,  which  no  amount  of  care  can  wholly 
eliminate."  "It  is  a  matter  which  should  be  adjusted  between  the  parties  directly 
concerned,  with  resort  to  the  civD  courts  if  necessary."  File  N-32/W.  1187-120.  Bu. 
Nav. .  Apr.  12, 1916. 

"If  they  are  of  the  opinion  that  they  have  a  just  claim,  the  same  legal  methods  of 
obtaining  judgment  can  be  used  against  naval  officers  as  against  other  citizens." 
File  N-32/W,  1187-118,  Bu.  Nav.,  Feb.  8,  1916. 

MESS  CATERER.    See  C.  M.  O.  98,  1894,  2. 

MESS  COOK. 

1.  Extra  pay  as — Not  to  be  included  in  actual  pay  in  court-martial  sentence.  C.  M.  O. 
24, 1909,  3. 

MESSMEN. 

1.  Naval  Reserve.    See  NAVAL  RESERVE,  3. 

MESTIZO.    See  C.  M.  O.  49, 1915, 23. 

METEOROLOGIST. 

1.  Retired  naval  officer — Assigned  to  active  duty.  While  serving  and  receiving  pay  for 
active  duty  he  was  appointed  by  the  Secretary  of  the  Navy  "meteorologist"  at  the 
Mare  Island  Navy  Yard.  File  9736-18,  J.  A.  G.,  June  25, 1910,  p.  13. 

MIDDLE  NAMES  IN  SPECIFICATIONS.    See  CHARGES  AND  SPECIFICATIONS,  60. 

MIDSHIPMEN. 

1.  "Absence  from  station  and  duty  without  leave" — Midshipmen  tried  by  general 

court-martial.    C.  M.  O.  77,  1905. 

2.  Academic  Board.   See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY. 

3.  Age  limit — Executive  is  without  authority  to  waive  the  age  limit,  as  the  age  of  candi- 

dates for  admission  is  fixed  by  law.    File  5252-43:1,  J.  A.  G.,  May  7, 1913. 

4.  Same — As  to  constitutionality  of  special  legislation,  see  18  Op.  Atty.  Gen.  18;  Messages 

and  Papers  of  the  President,  vol.  8,  p.  221.    File  5252-73,  J.  A.  G.,  Oct.  1, 1915,  p.  4. 

5.  Same — An  appointee  is  none  the  less  a  "candidate  for  admission"  subject  to  exami- 

nation, because  he  has  already  been  a  member  or  inmate  of  the  Naval  Academy, 
and  subject  to  age  limit.  File  5252-43:1,  J.  A.  G.,  May  7, 1913.  See  also  MIDSHIPMEN, 
70. 

6.  Same — Legal  residence  and  age — Section  1517,  R.  S.;  as  amended  by  act  March  2, 

1899  (25  Stat.  879)  requires  that  a  candidate  for  appointment  to  the  Naval  Academy 
be  an  actual  resident  of  the  district  from  which  nominated,  and  must  be  between 
the  ages  of  15  and  20  when  examined  for  promotion. 

The  department  leaves  such  matters  as  the  actual  residence  of  the  candidate  to 
the  Representative  appointing  him  and,  the  candidate  having  once  been  appointed 
and  become  a  midshipman,  the  question  of  residence  is  regarded  practically  as  re* 
judicata. 


382      i  MIDSHIPMEN. 

As  a  matter  of  policy,  the  department  should  not  reopen  the  matter  In  a  case  where 
the  candidate's  eligibility  is  attacked  after  he  has  otherwise  qualified  and  been  ap- 
pointed to  the  Naval  Academy.  , 
If  the  matter  was  decided  during  a  "previous  administration"  it  will  not  properly 
be  reopened  under  the  doctrine  of  rest  judicata.  File  5252-32,  J.  A.  G.,  Jan.  26. 1910. 
See  also  File  26543-87:2,  Sec.  Navy,  Apr.  28, 1913,  p.  3,  citing  28  Op.  Atty.  Gen.,  180. 

7.  Agreement  and  oath — Signed  by  midshipmen  appointed  to  Naval  Academy.  File 
5252-77.  J.  A.  G.,  July  20,  1915. 

S.  Aliens — Appointment  of — There  is  no  statute  specifically  making  citizenship  a  con- 
dition precedent  to  eligibility  to  appointment  to  the  Naval  Academy  as  a  midship- 
man, but  inasmuch  as  officers  of  the  Navy  must  be  citizens,  a  midshipman  can  not  be 
commissioned  an  ensign  if  he  be  an  alien.  (File  26252-71,  Nov.  1, 1907).  The  above 
decision  of  the  department  was  cited  with  approval  in  a  recent  case.  While  the  stat- 
utes do  not  specifically  prohibit  the  appointment  of  an  alien  to  the  Naval  Academy, 
such  prohibition  is  purely  an  administrative  question  which  it  is  competent  to  handle 
In  the  Navy  Regulations,  and  it  was  therefore  recommended  that  the  regulations  be 
so  amended  as  to  prohibit  the  appointment  to  the  Naval  Academy  of  any  except 
citizens  of  the  United  States.  File  5252-68,  J.  A.  G.,  May  15,  1915.  See  oteo  File 
26252-71,  Sec.  Navy,  Nov.  26,  1912;  26252-71:1,  J.  A.  G.,  Mar.  22, 1913;  8879-03,  J.  A.  G., 
Oct.  19, 1903;  RES  JUDICATA,  10. 

9.  Same— Admission  to  Naval  Academy  of  students  from  foreign  States.  See  MIDSHIP- 
MEN, 8. 

10.  Allowances — Suspension  of.    See  MIDSHIPMEN  62. 

11.  Appointments  of —Under  the  law,  appointments  to  the  Naval  Academy  are  allowed 

for  the  office  of  Senator,  Representative  and  Delegate  in  Congress,  and  not  for  the 
individual  holding  such  office.  Accordingly,  if  a  Senator  representing  a  State,  or  a 
Member  of  Congress  representing  a  congressional  district  has  two  appointments  to 
the  Naval  Academy  made  on  his  recommendation,  his  successor  can  not,  while  such 
appointees  are  at  the  Academy,  be  allowed  two  additional  appointments  made  to 
the  Academy  on  his  recommendation.  The  foregoing  opinion  is  fully  supported  by 
the  long  continued  departmental  construction  of  the  law,  which  is  known  to  Congress 
and  which  should  be  accepted  as  conclusive.  (Brown  v.  U.  S.,  113  U.  S.  568).  The 
right  of  Representatives  in  Congress  to  have  appointments  made  upon  their  recom- 
mendations has  been  denied  even  where  it  was  contended  that  the  midshipmen  at  the 
Academy  appointed  by  their  predecessors  were  not  bona  fide  residents  of  the  district 
from  which  appointed  (28  Op.  Attv.  Gen.  180)  or  where  a  Member  who  had  appointed 
a  midshipman  was  later  unseated  "by  contest  of  election.  (21  Op.  Atty.  Gen.  342.  See 
ateo  10  Op.  Atty.  Gen.  46.)  File  5252-67: 1,  J.  A.  G .,  July  12,  1915;  C.  M.  O.  27,  1915,  8. 
See  also  File  5252-67,  J.  A.  G.,  May  3, 1915,  with  reference  to  appointment  by  Members 
of  Congress  at  Large. 

12.  Same— Aliens.    See  MIDSHIPMEN,  8. 

13.  Same— Bovs  enlisted  in  Navy.    See  File  5252-59,  J.  A.  G.,  Fob.  6,  1914. 

14.  Same— Enlisted  men— R.  S.  1513,  as  amended  by  act,  March  3,  1903  (32  Stat.  1197), 

and  act,  June  30,  1914  (38  Stat.  410).  C.  M.  O.  31,  1915,  2.  Enlisted  men  of  Marine 
Corps  under  act,  June  30,  1914  (38  Stat.  410).  See  MIDSHIPMEN,  52. 

15.  Same— Influence.    See  CONGRESS,  11;  NAVAL  ACADEMY,  12. 
1C.  Same— Marine  Corps.    See  MIDSHIPMEN,  52. 

17.  Arrest,  under— Status  of— Under  a  regulation  of  the  Naval  Academy  providing  that 

"The  commandant  of  midshipmen  will  prescribe  in  each  case  the  nature  of  restrictions 
to  be  imposed  upon  the  midshipmen  placed  under  suspension  to  await  investigation 
or  action,"  (Regulations  of  the  U.  S.  Naval  Academy,  1911,  p.  116,  article  583,  as 
amended)  a  midshipman  may  properly  be  placed  under  arrest  pending  action  on  a 
recommendation  by  the  Superintendent  of  the  Naval  Academy  for  his  dismissal. 
The  fact  that  a  court  of  inquiry  may  be  ordered  to  investigate  the  allegations  against 
him  does  not  of  itself  require  his  being  released  from  arrest.  To  release  him  from 
arrest  because  the  court  of  inquiry  was  investigating  allegations  against  him,  which 
were  the  basis  for  recommending  his  dismissal,  would  retract  the  above  regulation, 
which  has  been  approved  by  the  department,  and  exert  a  very  pernicious  influence 
upon  the  discipline  at  the  Naval  Academy.  File  28028-203: 1,  Sec.  Navy,  June  8, 1915, 
and  J.  A.  G.,  June  7, 1915;  C.  M.  O.  22, 1915,  9. 

18.  Assignment— Midshipmen  on  graduation  shall  be  commissioned  ensigns  in  the  Navy, 

or  may  be  assigned  by  the  Secretary  of  the  Navy  to  fill  vacancies  in  the  lowest  com- 
missioned grades  of  the  Marine  Corps  or  Staff  Corps  of  the  Navy.  (Act  July  9, 1913, 
38  Stat.  103.)  File  5252-60,  J.  A.  G.,  May  13,  1915,  p.  1. 


MIDSHIPMEN.  '  383 

19.  Board  of  Investigation — Investigated  irregularities  of  a  midshipman,  who  was 

represented  by  counsel  of  his  own  choosing.    File  5252-73,  Oct.  2,  1915. 

20.  Boys  enlisted  in  Navy.    See  MIDSHIPMEN,  13. 

21.  "  Breaking  arrest  "—Midshipman  charged  with.    See  BREAKING  ARREST,  6. 

22.  Cheating — A  midshipman  having  taken  final  examination  as  midshipman,  turned 

in  his  papers  but  subsequently  in  an  unauthorized  and  surreptitious  manner  secured 
access  to  the  papers  and  made  changes  in  answers  to  certain  questions.  Was  marked 
zero  on  these  subjects  and  when  tried  by  court-martial  for  "scandalous  conduct 
tending  to  the  destruction  of  good  morals,"  pleaded  that  he  had  already  been  punished 
by  the  action  of  the  Academic  Board  in  marking,  and  the  court  sustained  that  plea. 
The  Secretary  of  the  Navy  stated  that  the  accused  must  be  punished  in  accord  with 
the  action  of  the  Academic  Board  or  go  altogether  unpunished,  and  as  such  conduct 
should  not  go  unpunished,  "his  resignation  will  be,  therefore,  accepted."  13  J.  A. 
G.  457,  Aug.  18, 1905.  See  also  BLOTTER;  GOUGING,  3;  OFFICERS,  13. 

23.  Citizenship  of.    See  MIDSHIPMEN,  8. 

24.  "Conduct  to  the  prejudice  of  good  order  and  discipline"— Charged  with.    C. 

M.  O.  77,  1905. 

25.  "Conduct  unbecoming  an  officer  and  a  gentleman"— Charged  with.    C.  M  O 

9,  1909;  7, 1912;  8,  1912. 

26.  Court  of  inquiry— Convened  to  investigate  alleged  irregularities.    See  COURTS  OF 

INQUIRY,  33. 

27.  "Court-Martial" — A  midshipman,  member  of  the  third  class  at  the  United  States 

Naval  Academy,  was  tried  by  a  "court-martial"  on  the  charge  of  "Hazing,  in  viola- 
tion of  an  act  of  Congress  approved  June  23,  1874,"  under  which  were  six  specifica- 
tions. The  proceedings,  findings,  and  recommendation  of  the  "court-martial"  were 
approved  by  the  Superintendent  of  the  Naval  Academy,  who  convener!  the  "court- 
martial."  The  midshipman  was  dismissed  "from  the  U.  S.  Naval  Academy  and  tho 
naval  service." 

The  case  went  to  the  Court  of  Claims,  the  midshipman  contending  that  the  act 
of  June  23,  1874  (18  Stat.  203)  was  incompatible  with,  or  repealed  by,  subsequent 
acts  of  Congress  approved  March  2,  1895  (28  Stat.  838)  and  March  3,  1903  (32  Stat. 
1198)  respectively.  Held:  That  the  act  of  June  23, 1874  (18  Stat.  203)  was  not  repealed 
by  the  later  statutes.  File  4051-3,  J.  A.  G.,  July  1,  1909.  See  also  Melvin  v.  U.  S., 
Ct.  Cls.,  No.  30095;  25  Op.  Atty.  Gen.  543. 

The  act  of  June  23,  1874  (18  Stat.  203)  provides  that  a  midshipman  may  be  tried 
by  a  "court-martial,"  composed  of  "not  less  than  three  commissioned  officers," 
and  any  midshipman  found  guilty  of  "Hazing"  by  such,  a  "court-martial"  shall  be 
dismissed;  "and  such  finding,  when  approved  by  said  superintendent  shall  be  final." 

31.  Dismissal — May  not  be  dismissed  for  a  "single"  act  of  hazing  without  trial  by  "court- 

martial."    See  HAZING,  6. 

32.  Same — As  a  midshipman  is  neither  a  commissioned  nor  warrant  officer  it  seems  that 

he  may  be  dismissed  pursuant  to  a  sentence  of  a  court-martial  without  the  express 
approval  thereof  by  the  President,  unless  there  be  some  explicit  statutory  provision 
requiring  such  executory  approval.  The  act  of  April  9,  1906  (34  Stat.  104)  required 
the  approval  of  the  President  for  the  dismissal  of  a  midshipman  from  the  Naval 
Academy  whenever  the  continued  presence  of  a  midshipman  at  the  Naval  Academy 
is  contrary  to  the  best  interests  of  the  service.  16  J.  A.  G.  65,  Nov.  2, 1911;  File  26262- 
198,  J.  A.  G.,  Nov.  13,  1908.  See  also  C.  M.  O.  77, 1905;  9, 1909;  10, 1909;  36, 1909,  2. 

33.  Same — Power  of  Secretary  of  the  Navy  to  dismiss.    See  MIDSHIPMEN,  80. 

34.  Same— Form  letter  for  dismissing  midshipmen.    See  File  26283-925,  Sept.  18,  1915. 

35.  Same—"  That  it  shall  be  the  duty  of  the  Superintendent  of  the  United  States  Naval 

Academy,  whenever  he  shall  believe  the  continued  presence  of  any  midshipman  at 
the  said  academy  to  be  contrary  to  the  best  interests  of  the  service,  to  report  in  writing 
such  fact,  with  a  full  statement  of  the  facts  upon  which  are  based  his  reasons  for  such 
belief,  to  the  Secretary  of  the  Navy,  who,  if  after  due  consideration  of  the  said  report 
he  shall  deem  the  superintendent's  said  belief  reasonable  and  well  founded,  shall 
cause  a  copy  of  the  said  report  to  be  served  upon  the  said  midshipman  and  require 
the  said  midshipman  to  show  cause,  in  writing  and  within  such  time  as  the  said 
Secretary  shall  deem  reasonable,  why  he  should  not  be  dismissed  from  the  said 
academy;  and  after  due  consideration  of  any  cause  so  shown  the  said  Secretary  may, 
in  his  discretion,  but  with  the  written  approval  of  the  President,  dismiss  such  mid- 
shipman from  the  said  academy.  And  the  truth  of  any  issue  of  fact  so  raised,  except 
upon  the  record  of  demerit,  shall  be  determined  by  a  board  of  inquiry  convened  by 
the  Secretary  of  the  Navy  under  the  rules  and  regulations  for  the  government  of  the 
Navy."  (Act,  April  9, 1906,  34  Stat.  104,  sec.  1).  File  5252-73,  J.  A.  G.,  Oct  1, 1915. 

50756°— 17 25 


384  MIDSHIPMEN. 

36.  Dismissed  midshipmen— Question  as  to  whether  a  dismissed  midshipman  may  hold 

a  State  office  is  not  under  jurisdiction  of  Navy  Department.  File  5252-79,  J.  A.  G., 
June  19,  1916. 

37.  Same — It  is  understood  that  under  the  civil  service  rules  and  regulations  any  person 

who  has  been  dismissed  from  the  military  or  naval  service  is  barred  from  examination 
for  the  United  States  civil  service  within  one  year  from  the  date  of  such  dismissal. 
File  5252-79;  J.  A.  G.,  June  19,  1910. 

38.  Same — Dismissal  of  midshipman,  when  once  accomplished,  is  final  and  can  not  be  re- 

voked. It  has  been  deemed  necessary  in  the  past  to  obtain  special  authority  of 
Congress  for  the  reinstatement  of  midshipmen  who  have  been  legally  dismissed. 
{See  File  1897-1904,  Sec.  Navy,  Mar.  21, 1904;  act,  Mar.  3,  1905,  35  Stat.  1203).  Thus 
it  will  be  seen  that  not  only  have  the  courts,  the  Department  of  Justice,  and  the 
Navy  Department  concurred  in  the  conclusion  that  reinstatement  can  not  be  effected 
by  revocation,  but  that  this  view  has  received  the  concurrence  of  Congress  and  the 
President  with  reference  to  specific  cases  of  midshipmen.  File  5252-73,  J.  A.  G., 
Oct.  1, 1915.  See  also  MIDSHIPMEN,  75;  25  Op.  Atty.  Gen.  579;  File  5252-60,  J.  A.  G., 
Feb.  2,  1914. 

39.  Same— Not  for  hazing  nor  pursuant  to  sentence  of  court-martial  but  in  accordance  with 

section  1,  act,  April  9,  190(i  (34  Stat.  104) — No  law  prohibiting  his  appointment  as 
an  officer  of  the  Navy.  The  question  as  to  whether  he  is  ineligible  to  hold  a  com- 
mission in  the  Army  is  one  for  determination  of  the  War  Department.  File  20283- 
925:4,  J.  A.  G.,  Aug.  7,  1916. 

40.  "  Drunkenness  "—Midshipmen  charged  with.    C.  M.  O.  77,  1905. 

41.  Enlisted  men  of  Navy— Appointment  as  midshipmen.    See  MIDSHIPMEN,  14. 

42.  Enlisted  men  of  Marine  Corps — Appointment  as  midshipmen.    See  MIDSHIPMEN,  52. 

43.  Expelled,    summarily — Any   midshipman   summarily   expelled   from   the    Naval 

Academy  for  hazing  shall  not  thereafter  be  reappointed  or  be  eligible  for  appoint- 
ment as  a  commissioned  officer  in  the  Army,  Navy,  or  Marine  Corps,  until  two  years 
after  the  graduation  of  the  class  of  which  he  was  a  member.  File  5252-79,  J.  A.  G., 
June  19, 1916.  See  also  MARINE  CORPS,  54. 

44.  Foreigners — Admission  to  Naval  Academy  of  foreigners.    See  MIDSHIPMEN,  8. 

45.  Form  letter— For  dismissing  midshipmen.    See  File  2(1283-9:5,  Sept.  28,  1915. 

46.  General  court-martial— Midshipmen  tried  by.    C.  M.  O.  77,  1905;  9,  1909;  10,  1909; 

30,  1909,  2;  12,  1913,  3. 

47.  Gouging.    See  MIDSHIPMEN,  22. 

48.  Hazing.    See  HAZING. 

49.  Legal  residence.    See  MIDSHIPMEN,  6. 

50.  Letter— Form  letter  for  dismissing  midshipmen.    See  File  26283-925,  Sept.  28,  1915. 

51.  Longevity — Service  at  Naval  Academy  counts.    See  LONGEVITY. 

52.  Marine  Corps — Enlisted  men  of  the  Marine  Corps  may  be  appointed  to  the  Naval 

Academy  in  the  discretion  of  the  Secretary  of  the  Navy,  under  the  authority  conferred 
by  the  act  of  June  30,  1914,  (38  Stat.  410;  G.  O.  124,  Oct.  19,  1914)  which  authorizes 
such  appointments  from  "enlisted  men  of  the  Navy."  File  5252-66,  Sec.  Navy, 
May  13,  1915;  C.  M.  O.  20,  1915,  7. 

53.  Same — Two  midshipmen,  graduates  of  the  Naval  Academy,  having  since  resigned  from 

the  naval  service,  sought  appointments  as  second  lieutenants  in  the  Marine  Corps. 
Held,  that  their  status  was  the  same  as  any  other  civilian  and  that  they  would  oe 
required  to  take  the  ordinary  entrance  examination  for  the  commission  as  second 
lieutenant.  The  only  benefit  which  they  receive  is  that  the  service  in  the  Naval 
Academy  would  be  counted  in  determining  the  amount  of  their  longevity  pay. 
File  13261-335,  J.  A.  G.,  June  6, 1911.  See  also  File  13261-486.  Sec.  Navy,  June  8, 1916. 

54.  Same— Precedence  when  appointed  to  Marine  Corps.    See  MIDSHIPMEN,  66. 

55.  Same— The  provision  of  the  act  of  March  3,  1899  (30  Stat.  1008)  for  at  least  one  ap- 

pointment to  the  Marine  Corps,  annually  from  graduates  of  the  Naval  Academy  is 
still  in  force  although  not  observed  for  a  number  of  years.  15  J.  A.  G.  135,  April  4, 1911. 

56.  Naturalization.    Sec  MIDSHIPMEN,  8. 

57.  Oath— And  agreement— Signed  by  midshipmen  appointed  to  Naval  Academy.    File 

5252-77,  J.  A.  G..  July  20, 1915. 

58.  Officer— A  midshipman  is  not  an  officer  within  the  meaning  of  R.  S.  1229,  providing 

that  no  officer  in  the  military  or  naval  service  shall,  in  time  of  peace,  be  dismissed  from 
the  service  except  upon  and  in  pursuance  of  the  sentence  of  a  court-martial.  File 
26262-198. 

59.  Same— Midshipmen  are  "officers"  within  the  meaning  of  R.  S.  1486.    File  11130-2b, 

J.  A.  G.,  July  31,  19JJ.    See  aiso  Fiia  52J2-73,  J.  A.  G.,  Oct.  1,  1915. 


MIDSHIPMEN.  385 

60.  Pardon— Of  dismissed  midshipman  by  President  where  dismissal  has  not  been  con- 

summated. See  File  5252-73,  J.  A.  G.,  Oct.  1,  1915,  pp.  4-5;  Op.  Acting  Atty.  Gen., 
Aug.  14,  1888,  Exec.  Press  Copy  Book,  Navy  Dept.  No.  7,  p.  245. 

61.  Pay—tongress  provided  in  1893  that  any  midshipman  commissioned  within  six  months 

after  graduation  should  be  paid  "from  the  date  he  takes  rank  as  stated  in  his  com- 
mission to  the  date  of  qualification  and  acceptance  of  his  commission."  (Act  Mar.  3.. 
1893,  27  Stat.  715.)  File  5460-76,  J.  A.  G.,  July  12, 1915.  See  also  File  13261-486,  Sec. 
Navy,  June  8, 1916. 

62.  Pay— Suspension  without  pay  for  due  cause  by  Secretary  of  the  Navy— Where  it  is 

within  the  power  of  the  Secretary  of  the  Navy,  with  approval  of  the  President,  to 
dismiss  a  midshipman,  he  may,  with  the  approval  of  the  President,  suspend  a  mis- 
shipman  for  one  year,  without  pay  for  due  cause.  Since  the  power  to  suspend  is 
derived  from  the  power  to  dismiss  absolutely,  only  such  midshipmen  as  may  be> 
subject  to  dismissal  can  be  so  suspended.  File  5252-72,  J.  A.  G.,  Sept.  20,  21,  1915. 
[In  this  case  comptroller  held  that  midshipman  suspended  without  pay  was  not  en- 
titled to  allowances.  (177  S.  and  A.  Memo.,  3830.)].  C.  M.  O.  31, 1915,  12. 

63.  Physical  disqualification— For  commission  as  ensign— Waiver.    File  5252-50,  J.  A> 

G.,  May  14,  1912. 

64.  Physically  Incapacitated—  Promotion.    See  RETIREMENT  OF  OFFICERS,  50. 

65.  Post  graduate  courses — Engagements  entered  into  by  midshipmen  and  candidates 

for  postgraduate  courses  regarding  future  service  in  the  Navy.  File  5252-77,  Sec. 
Navy,  April  12,  1916. 

66  Precedence  when  appointed  to  Marine  Corps— Graduates  of  the  Naval  Academy 
who  are  appointed  second  lieutenants  in  the  Marine  Corps  should  take  rank  with, 
their  classmates  who  are  appointed  ensigns  in  the  Navy  from  the  same  date,  in  ac- 
cordance with  their  final  standing  upon  graduation  from  the  Naval  Academy.  File. 
11130-27,  J.  A.  G.,  Aug.  26,  1915;  C.  M.  O.  29,  1915,  7. 

67.  Precise  designation  of— In  the  case  of  a  midshipman  at  the  Naval  Academy  tried 

by  general  court-martial  for  "Hazing"  the  department  stated:  "The  more  precise 
designation  of  the  rank  of  the  accused  would  be  'Midshipman,  United  States  Navy,, 
member  of  the  third  class  at  the  United  States  Naval  Academy,'  instead  of  'a  mid- 
shipman of  the  third  class  in  the  United  States  Navy.'"  C.  M.  O.  12,  1913,  3. 

68.  Promotion— When  physically  incapacitated  for  duty.     See  RETIREMENT  OF  OFFI- 

CERS, 50. 

69.  Same— Effect  of  the  recommendation  of  the  Academic  Board  that  a  midshipman  be 

dropped.    See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY,  4. 

70.  Reappolntment — There  is  no  provision  of  law  expressly  prohibiting  the  reappoint- 

ment  of  a  midshipman  who  has  been  dismissed  from  the  Navy,  except  in  the  single- 
case  of  hazing.  However,  the  spirit  of  the  law  is  against  the  reappomtment  of  any 
person  who  has  been  dismissed  from  the  Navy.  File  5252-43,  J.  A.  G.,  Oct.  5,  1911. 

71.  Same— As  to  reappointment  of  midshipmen  dismissed  for  hazing,  see  act  Mar.  3,  1903 

(32  Stat.  1198),  as  amended  by  act  A_pr.  9,  1906  (34  Stat.  104).    C.  M.  O.  31,  1915,  12. 

72.  Same — A  midshipman  who  has  satisfactorily  completed  the  course  for  the  first,  (or 

fourth-class)  year  ai  the  Naval  Academy,  but  who,  in  the  following  year,  is  found 
deficient  and  allowed  to  resign,  need  not  be  required,  when  given  a  new  appointment, 
to  go  over  the  course  for  the  fourth-class  year  a  second  time,  but  may  legally  rebegin 
the  course  for  the  third-class  year  provided  that  such  action  is  recommended  by  the 
academic  board.  File  5252-65,  J.  A.  G.,  Mar.  12,  1915;  C.  M.  O.  12,  1915,  10. 

73.  Same — A  midshipman  who  has  been  dismissed  from  the  Naval  Academy  for  "intoxi- 

cation and  inaptitude"  and  who  had  other  reports  on  record  against  him,  was  given 
a  new  nomination.  Held,  that  if  the  candidate's  moral  qualifications  are  not  satis- 
factory and  such  as  are  required  for  the  admission  of  candidates  generally,  he  may- 
be legally  rejected,  and  whether  or  not  he  is  so  qualified  is  a  question  of  fact.  Fife 
5252-43,  J.  A.  G.,  Oct.  5,  1911. 

74.  Regulations  of  the  U.  S.  Naval  Academy,  1911— Issued  under  authority  of  R.  S. 

161— Midshipmen  are  subject  to.    J.  A.  G.,  June  7,  1915. 

75.  Reinstatement — A  midshipman,  who  has  been  dismissed  for  misconduct  by  order 

of  the  President  pursuant  to  law,  can  not  be  legally  reinstated  in  his  former  position 
by  revocation  of  the  order  of  dismissal.  The  only  way  in  which  such  a  former  mid- 
shipman can  legally  obtain  readmission  to  the  Naval  Academy  would  be  in  the 
manner  provided  for  any  other  candidate  in  civil  life,  as  authorized  by  sections  1515, 
1516,  and  1517  of  the  Revised  Statutes,  and  by  the  act  of  Congress  approved  July  9V 


386  MIDSHIPMEN. 

1913  (38  Stat.  103).  [See  25  Op.  Atty.  Gen.  579;  Op.  Atty.  Gen.  Oct.  15,  1915.  See 
also  with  reference  to  appointments  from  enlisted  men,  R.  S.  1513  as  amended  by  act 
Mar.  3, 1903  (32  Stat.  1197),  and  act  June  30,  1914  (38  Stat.  410).-  As  to  reappointment 
of  midshipmen  dismissed  for  hazing,  see  act  Mar.  3,  1903  (32  Stat.  1198),  as  amended 
by  act  Apr.  9,  1906  (34  Stat.  104).]  File  5252-72,  J.  A.  G.,  Sept.  27,  1915;  C.  M.  O.  31, 
1915,  12.  See  alsc  MIDSHIPMEN,  38. 
70.  Same — Can  not  be  effected  by  revocation.  See  MIDSHIPMEN,  38;  75. 

77.  Residence,  LEGAL-.    See  MIDSHIPMEN,  6. 

78.  Rules  governing  admission— The  pamphlet  issued  by  the  Bureau  of  Navigation 

entitled  "Regulations  Governing  the  Admission  of  Candidates  into  the  U.  S.  Naval 
Academy  as  Midshipmen"  is  of  official  character.  File  5252-4,  J.  A.  G.,  Oct.  5,  1911, 
p.  4. 

79.  Sea  duty — As  part  of  the  course  at  Naval  Academy.    See  NAVAL  ACADEMY,  22. 

50.  Secretary  of  the  Navy — Power  of  to  dismiss — The  Secretary  of  the  Navy,  with  the 

written  approval  of  the  President,  has  the  power  to  dismiss  midshipmen  for  due 
cause  in  any  case  except  that  in  which  the  cause  consists  in  a  "single  act  of  hazing." 
In  such  cases  the  law  expressly  provides  that  a  midshipman  can  be  dismissed  only 
pursuant  to  the  sentence  of  a  "court-martial"  which  the  Superintendent  of  the  Naval 
Academy,  "in  his  discretion,  and  with  the  approval  of  the  Secretary  of  the  Navy,"  has 
convened.  ( Acts  of  June  23, 1874, 18  Stat.  203,  and  Mar.  3, 1903, 32  Stat.  1198,  as  amend- 
ed by  the  act  of  Apr.  9,  1906,  34  Stat.  104.)  A  midshipman  who  is  recommended 
for  punishment  for  a  "single  act  of  hazing"  is  thus  in  the  unique  position,  as  com- 
pared with  other  offenses  against  Naval  Academy  Regulations  of  being  protected  by 
statute  against  dismissal,  except  by  sentence  of  a  "court-martial."  File  5252-72, 
J.  A.  G.,  Sept.  20,  21,  1915;  C.  M.  O.  31,  1915,  12.  See  also  File  5252-60,  J.  A.  G.,  Feb. 
2, 1914. 

51.  Sentences-Unnecessary  that  President  should  confirm  sentence  of  general  court- 

martial  involving  the  dismissal  of  a  midshipman.    See  MIDSHIPMEN,  32. 


liberate  intent  of  Congress  that  graduates  of  the  Naval  Academy  are  to  be  regarded 
as  anything  but  midshipmen — much  less  that  their  status  partakes  at  all  of  the  nature 
of  that  of  marine  officers.  They  are  also  eligible,  upon  passing  the  required  examina- 
tion, for  appointment  as  assistant  paymasters,  but  this  is  not  indicative  that  their 
present  status  is  changed.  File  3980-629,  J.  A.  G.,  July  13, 1911,  p.  4.  See  also  PAY- 
MASTER'S CLERKS,  10. 

84.  Statutory  history — Of  midshipmen  and  naval  cadets.    (See  Weller  ».  U.  S.,  41  Ct.  Cls.. 

324.)    File  26262-198,  J.  A.  G.,  Nov.  13. 1908,  p.  2;  16  J.  A.  G.,  65,  Nov.  2, 1911. 

85.  Suicide — Midshipmen  while  suffering  from  acute  nostalgia  committed  suicide.    See 

NOSTALGIA. 

86.  Suspension  without  pay — For  due  cause  by  the  Secretary  of  the  Navy.    See  MID- 

SHIPMEN, 62. 

87.  Third  classman— At  Naval  Academy  tried  by  general  court-martial  for  "hazing." 

See  MIDSHIPMEN,  67. 

88.  Trial  by  court-martial — Midshipmen  are  subject  to  trial  by  court-martial  convened  by 

order  of  the  Secretary  of  the  Navy.  File  9687  and  9688,  Jan.,  1902;  9689,  Feb.,  1902; 
9690,  Apr.  1902. 

89.  Waiving  age  limit.    See  MIDSHIPMEN,  3,  4,  5,  6. 

90.  Warrant  officer— Midshipman  is  not.    16  J.  A.  G.,  70,  Nov.  2,  1911. 

MIDWAY  ISLAND. 

1.  Jurisdiction— Of  United  States  over.    File  4679-04;  2479-3-07;   Executive  order  of 
Jan.  20,  1903;  G.  O.  120,  Jan.  21,  1903;  File  11369-02;  754-03. 

MILEAGE. 

1.  Abroad — Annual  appropriations   under  "Pay,  Miscellaneous,"   provide    "for  actual 

personal  expenses  of  officers  while  traveling  abroad  under  orders."  File  13707-48, 
J.  A.  G.,  Aug.  2, 1915.  See  in  this  connection  G.  O.  268,  Apr.  2, 1881;  G.  O.  295,  May  2, 
1882;  G.  O.  298,  Aug.  5, 1882.  See  also  File  26251-150,  J.  A.  G.,  Sept.  1, 1916. 

2.  "  Government  transportation  "—The  act  of  June  30,  1914  (38  Stat.  393),  provides 

"that  hereafter  no  mileage  shall  be  paid  to  any  officer  where  Government  transporta- 
tion is  furnished."  File  13707-48.  J.  A.  G.,  Aug.  2,  1915. 

3.  Same — Denned — The  Comptroller  of  the  Treasury  has  decided  that  the  words  "  Govern- 

ment transportation"  in  the  act  of  June  30, 1914,  above  quoted,  means  "transporta- 


MILEAGE.  387 

t\on  on  vessels  owned  or  employed  by  the  Government  or  by  conveyance  on  land 
so  owned  or  employed,  but  not  transportation  furnished  on  transportation  request." 
(Comp.Dec.  Mar.  30,  1915,  169  S.  &  A.  Memo.  3562.)  File  13707^8,  J.  A.  G.,  Aug. 
2,  1915. 

4.  Naval  Militia— Naval  Militia  members  subpoenaed  as  witnesses  before  naval  general 

courts-martial.    See  NAVAL  MILITIA,  45,  46. 

5.  Rate  for  officers— The  act  of  March  3, 1901  (31  Stat.  1010, 1029),  provides  "that  in  lieu 

of  traveling  expenses  and  all  allowances  whatsoever  connected  therewith,  including 
transportation  of  baggage,  officers  of  the  Navy  traveling  from  point  to  point  within 
the  United  States  under  orders  shall  hereafter  receive  mileage  at  the  rate  of  eight  cents 
per  mile,  distance  to  be  computed  by  the  shortest  usually  traveled  route  *  *  *  ." 
File  13707-48,  J.  A.  G.,  Aug.  2, 1915.  See  also  File  26251-150,  J.  A.  G.,  Sept.  1, 1916. 

6.  Travel  performed — To  be  present  as  witness  in  private  litigation — An  officer  ordered 

to  perform  travel  in  order  that  he  might  be  present  to  testify  if  needed  in  a  suit  to 
which  the  Government  is  not  a  party,  but  its  interest  in  the  result  of  the  litigation 
is  sufficiently  great  in  the  opinion  of"  the  Secretary  of  the  Navy  to  cause  the  officer 
to  be  present,  is  entitled  to  mileage  for  the  travel  performed.  (Comp.  Dec.,  July  28, 
1915;  173  S.  &  A.  Memo.  3729.)  File  2G254-1855;  C.  M.  O.  35, 1915, 10. 

7.  Within  United  States.    See  MILEAGE,  5,  6. 

8.  Witness  in  private  litigation.    See  MILEAGE,  6. 

MILITARY  COMMISSIONS. 

1.  Conduct  of  military  commissions  and  other  exceptional  military  courts  when 
held  by  naval  authority — When  exceptional  military  trials,  whether  by  military 
commissions  or  provost  courts,  are  held  by  naval  authority,  the  commission  or  court 
conducting  such  trials  shall  be  constituted  and  organized,  and  shall  conduct  its  pro- 
ceedings in  the  manner  provided  for  naval  courts-martial  or  deck  courts,  so  far  as  the 
exigencies  of  the  service  may  permit.  Similarly,  records  shall  be  kept  of  the  pro- 
ceedings, which  upon  completion  shall  be  transmitted  to  the  Judge  Advocate  Genera> 
of  the  Navy  to  be  revised  and  recorded.  No  sentence  of  death  shall  be  carried  into 
execution  until  confirmed  by  the  Secretary  of  the  Navy;  all  other  sentences  may  be 
executed  upon  approval  of  the  convening  authority. 

The  jurisdiction  of  every  such  commission  or  provost  court,  in  the  matter  of  the 
punishments  which  it  may  adjudge,  shall  be  limited  in  the  discretion  of  the  convening 
authority  and  shall  be  expressly  stated  in  his  order  convening  such  commission  or 
provost  court.  File  5526-39;  C.  M.  O.  13,  1916,  6. 

2  Haiti— Authority  of  comrnander-in-chief  of  cruiser  squadron  to  try  political  (military) 
prisoners  by  military  commissions  or  provost.  File  5526-39,  J.  A.  G.,  Mar.  7,  1916. 
See  also  Treaty  between  United  States  and  Haiti,  proclaimed  May  3,  1916,  Art.  14. 

MILITARY  COURTS.    See  MILITARY  COMMISSIONS,  1. 
MILITARY  TRIALS.    See  MILITARY  COMMISSIONS,  1. 
MILITIA.    C.  M.  O.  49,  1915,  26.    See  also  NAVAL  MILITIA. 
MILITIA,  NAVAL.    See  NATAL  MILITIA. 

MINISTERIAL  ACTS.    See  also  ADMINISTRATION. 
1.  President— Can  not  be  required  to  perform  in  person.    C.  M.  O.  12, 1915,  11. 

"  MINISTERIALLY."    See  C.  M.  0. 127, 1900, 1. 

MINORS. 

1.  Agreement— To  reenlist  or  waive  transportation.    See  APPRENTICES,  2. 

2.  Allotments  to— Should  be  made  to  guardian.    See  ALLOTMENTS,  5. 

3.  Citizenship.    See  CITIZENSHIP. 

4.  Death  gratuity— A  minor  is  competent  to  designate  a  beneficiary.    See  DEATH 

GRATUITY,  15. 

5.  Same — A  minor  may  be  designated  as  beneficiary.    See  DEATH  GKATUITY,  16. 

6.  "Desertion" — Accused   pleaded   "Not   Guilty."    Prosecution   proved   conclusively 

the  offense  charged. 

Theabove  proof  was  not  disputed  by  the  accused,  whose  counsel  confined  the  de- 
fense to  the  introduction  of  evidence  showing  that  the  accused  was  only  16  years 
of  age  when  he  enlisted  in  June,  1902,  and  not  21  years  old,  as  stated  by  him 
under  oath  at  that  time.  The  accused  himself  took  the  stand  and  testified  that  his 


388  MINOES. 

age  was  wrongly  stated  by  him  when  he  enlisted,  as  above  set  forth,  adding  that  his 
parents  knew  nothing  of  his  enlistment  at  the  time.  He  said  that  he  left  his  ship 
and  returned  to  them  at  their  request,  to  help  support  them  by  working  on  his  father's 
larm,  such  aid  being  necessary  on  account  of  the  age  and  infirmity  of  his  parents. 

The  accused's  sister  was  called  for  the  defense,  and  corroborated  his  testimony  as 
to  his  age  and  the  circumstances  of  their  father  and  mother. 

Finally,  at  the  request  of  the  court  for  further  evidence  as  to  the  date  of  birth  of 
the  accused,  his  counsel  procured  a  certificate  of  baptism  from  the  accused's  home 
town,  from  which  it  appears  that  the  accused  was  about  16  years  and  8  months 
of  age  when  he  enlisted  in  the  Navy. 

The  counsel  followed  up  this  testimony  by  an  argument  in  which  he  maintained 
that  the  evidence  showed  conclusively  that  the  accused  enlisted  when  16  years 
•old,  without  the  consent  or  knowledge  of  either  of  his  parents,  and  contended  that 
said  enlistment  was  illegal  and  void,  and  that  therefore  the  accused  was  not  amenable 
to  Navy  regulations  and  discipline,  and  should  be  discharged  from  the  naval  service 
accordingly,  referring  to  certain  decisions  of  the  courts  in  support  of  such  view. 

In  reply  to  the  above  argument  the  judge  advocate  cited  a  number  of  cases  similar 
to  the  one  being  tried,  in  which  the  United  States  courts,  including  the  Supreme 
Court,  have  decided  that  the  enlistment  of  a  minor  without  the  consent  of  his  parents 
or  guardian  required  by  the  statute  is  not  void  but  voidable  only,  and  while  he  remains 
In  the  service  under  such  enlistment,  the  minor  is  amenable  to  the  discipline  of  the 
service,  and  can  not  be  discharged  by  a  civil  court  on  a  writ  of  habeas  corpus  while 
undergoing  a  court-martial  sentence  or  awaiting  trial  by  such  court. 

The  court  found  the  specification  proved,  and  that  the  accused  was  guilty  of  the 
charge,  and  sentenced  him  to  the  punishment  usual  in  such  cases,  viz.,  confinement 
for  one  year,  with  corresponding  penalties  and  forfeitures,  and  dishonorable  discharge 
at  the  expiration  of  said  period.  All  the  members,  however,  recommend  him  to 
clemency  "under  the  existing  circumstances  as  shown  by  the  evidence." 

It  is  beyond  question  from  numerous  decisions  of  both  Federal  and  State  courts, 
and  particularly  of  the  Supreme  Court  of  the  United  States,  that  the  position  taken 
by  the  defense  in  the  foregoing  case  is  untenable.  In  the  Morrissey  case  the  court 
said  that  the  provision  of  section  1117,  R.  S.,  requiring  the  consent  of  parents  or 
jguardians  to  the  enlistment  in  the  Army  of  a  minor,  "is  for  the  benefit  of  parent  or 
•guardian,  *  *  *  but  it  gives  no  privilege  to  the  minor.  *  *  *  An  enlistment 
is  not  a  contract  only,  but  effects  a  change  of  status.  It  is  not,  therefore,  like  an 
ordinary  contract,  voidable  by  the  infant.  *  *  *  The  contract  of  enlistment  was 
-good  so  far  as  the  petitioner  is  concerned.  He  was  not  only  de  facto,  but  de  jure,  a 
.soldier— amenable  to  military  jurisdiction."  (In  re  Morrissey,  137  U.  S.,  157.) 
•C.  M.  O.  217,  1902.  See  also  Ex  parte  Rock,  171  Fed.  Rep.  240;  File  26251-6972:  2, 
J.  A.  G.,  Jan  25, 1913. 

7.  Domicile-yWhat  affects.    See  File  5252-32,  J.  A.  G.,  Jan.  26,  1910,  6. 

8.  Sam«—  Midshipmen.    See  MIDSHIPMEN,  6. 

9.  Enlistment  of— A  minor  enlisted  in  the  Navy  when  15  years  old,  alleging  that  he  was 

18.  To  straighten  out  his  record  he  now  submits  the  consent  of  his  father.  The 
Bureau  of  Navigation  requires  if  it  is  legal  to  accept  the  evidence  and  retain  him  under 
iis  four-year  enlistment  (there  being  no  provision  of  law  for  the  enlistment  for  four 
jrears  of  any  one  under  18  years  of  age),  or  whether  it  is  necessary  to  secure  the  agree- 
ment of  the  father  and  boy  to  remain  in  the  service  during  minority.  Held,  that  the 
enlistment  is  a  valid  one  unless  voided  by  the  United  States,  and  it  is  legal  to  retain 
him  under  his  four-year  term  of  enlistment.  File  24368-7,  Sec.  Navy,  Feb.  14,  1912. 

10.  Same — Consent  of  guardian— A  minor  enlisted  with  consent  of  his  guardian ;  a  different 

Guardian  subsequently  appointed  requested  minor's  discharge.  Held,  the  depart- 
ment would  not  be  justified  in  granting  such  request.  File  7657-332,  J.  A.  G.,  Dec. 
29,  1915;  C.  M.  O.  49,  1915,  25.  See  also  File  9750-04,  J.  A.  G.,  Nov.  30, 1904. 

11.  Same — Consent  of  father  necessary  when  living— The  consent  of  the  father,  when  living, 

is  necessary  to  the  enlistment  in  the  Navy  of  a  minor  under  the  age  of  18,  except 
where  the  mother  or  other  person  is  the  legal  guardian  of  such  minor.  File  7657-293. 
J.  A.  G.,  June  19,  1915;  C.  M.  O.  22,  1915,  9.  See  also  section  1419  of  the  Revised 
Statutes;  G.  O.  81,  Nov.  21. 1866. 

12.  Same — Formerly  discharged  under  writ  of  habeas  corpus.    See  FRAUDULENT  EN- 

LISTMENT, 17. 

13.  Same— During  minority— Extension  of.    See  EXTENSION  OF  ENLISTMENTS,  5. 

14.  Same— Error  m  service  record.    C.  M.  O.  6, 1915, 11. 


MINORS.  389 

15.  Extension  of  enlistment— Original  enlistment  for  minority.    See  EXTENSION  OP 

ENLISTMENTS,  5. 

16.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  57-00. 

17.  Naturalization.    See  CITIZENSHIP,  25. 

18.  Pay — Upon  reenlistment.    See  PAY,  86. 

MISAPPLICATION  OF  LAW. 

1.  Court,  by.    See  C.  M.  O.  37,  1915,  10. 

MISAPPROPRIATION.    See  C.  M.  O.  17, 1910,  3-5;  12, 1911,  5;  27,  1913,  13;  1,  1914,  5. 

MISAPPROPRIATION  OF  MEDICAL  STORES  ENTRUSTED  TO  HIS  CHARGE. 

1.  Surgeon— Charged  with.    G.  C.  M.  Rec.,  6171. 

MISCARRIAGE  OF  JUSTICE.    See  CRITICISM  OF  COURTS-MARTIAL,  16,  35. 

MISCONDUCT.    See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED. 

1.  Board  of  Inquest — Should  state  in  its  opinion  whether  death  was  result  of  misconduct. 

See  BOARDS  OF  INQUEST,  5. 

2.  Death  gratuity— Effect  of  misconduct  on  death  gratuity.    See  DEATH  GRATUITY,  21. 

3.  Defined — In  a  recent  case  where  it  appeared  that  the  death  of  the  deceased  was  due  to 

his  carelessness  or  negligence  in  stumbling  over  the  string  piece  at  the  head  of  a  dock 
in  the  navy  yard  while  returning  to  his  ship  from  liberty  and  falling  upon  a  float 
eighteen  or  twenty  feet  below,  it  was  held  by  the  department  that  the  death  of  the 
deceased  was  not  due  to  his  own  misconduct.  In  accordance  with  precedent  it  must 
be  held  in  such  cases  that,  as  the  deceased  was  absent  from  his  station  and  duty  on 
liberty  at  the  time  of  his  death  and  was  not  actually  engaged  in  the  performance  of 
duty,  his  death  did  not  occur  in  the  line  of-duty,  and,  under  the  circumstances  above 
related,  was  not  due  to  his  own  misconduct.  However,  negligence  is  not  necessarily 
misconduct.  "The  term  'misconduct'  implies  a  wrongful  intention  and  not  a  mere 
error  of  judgment."  (Smith  v.  Cutler  (N.  Y.),  10  Wend.,  590, 25  Am.  Dec.,  580;  United 
States  v.  Warner,  28  Fed.  Cas.,  404.)  "In  usual  parlance  misconduct  means  a  trans- 
gression of  some  established  and  definite  rule  of  action,  where  no  discretion  is  left, 
except  what  necessity  may  demand;  and  carelessness,  negligence,  and  unskillfulness 
are  transgressions  of  some  established  but  indefinite  rule  of  action,  where  some  dis- 
cretion is  necessarily  left  to  the  actor.  Misconduct  is  a  violation  of  definite  law; 
carelessness,  an  abuse  of  discretion  under  an  indefinite  law.  Misconduct  is  a  for- 
bidden act;  carelessness,  a  forbidden  quality  of  an  act,  and  is  necessarily  indefinite." 
(Citizens  Ins.  Co.  v.  Marsh,  41  Pa.  (5  Wright),  386,  394;  5  Wds.  &  Ph.,  4531.) 

4.  Line  of  duty  and  misconduct  cases.    See  LINE  OF  DUTY  AND  MISCONDUCT  CON- 

STRUED. 

5.  Midshipmen— Dismissed  for.    See  C.  M.  O.  31,  1915.  10-12.    See  also  HAZING. 

6.  Missing  ship — Caused  by  misconduct  of  accused.    C.  M.  O.  49,  1915,  8. 

MISINTERPRETATION  OF  EVIDENCE. 

1.  By  court.    C.  M.  O.  37,  1915,  10. 

MISLEADING  REPORT. 

1.  General  court-martial  specification.    C.  M.  O.  52,  1910,  1. 

MISSING  SHIP. 

1.  Aggravated  offense — The  department  takes  occasion  to  call  attention  to  the  fact  that 

the  offense  of  leaving  the  ship  just  on  the  point  of  sailing  is  an  aggravated  one. 
C.M.  0.50,1900,1. 

2.  "  Conduct  to  the  prejudice  of  good  order  and  discipline  " — "Missing  ship" 

should  be  charged  under.  See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE, 
12;  CONDUCT  TO  THE  PREJUDICE  OF  GOOD  ORDER  AND  DISCIPLINE,  1,  12-14. 

3.  "Deliberately  and  willfully."    See  "DELIBERATELY  AND  WILLFULLY,"  3. 

4.  Intent— Necessity  of  proving.  '  C.  M.  O.  49,  1915,  8. 

5.  Misconduct— Of  accused  as  a  cause  of  missing  ship.    C.  M.  O.  49,  1915,  8. 

6.  Officer— Tried  by  general  court-martial  under  "Conduct  to  the  prejudice  of  good  order 

and  discipline."    C.  M.  O.  1,  1908;  G.  C.  M.  Rec.  31984. 

7.  Same — Accused  (officer)  in  consequence  of  his  misconduct,  missed  the  sailing  of  his 

ship  on  important  duty,  thereby  making  it  necessary  for  the  department  to  order 
another  officer  telegraphically  to  fill  his  place  at  the  expense  and  inconvenience  of 
the  Government.  File  26251-11181,  Sec.  Navy,  Dec.  17,  1915,  p.  3. 


390  MOURNING  BADGES. 

MISSING  VESSELS.  '  ,,  f.r 

1.  Fixing  date— U.  S.  S.  Nina.    See  File  264-B. 

MISSPELLED  WORDS. 

1.  Record— General  court-martial.    C.  M.  O.  27, 1913, 11;  28, 1915. 

MISTAKES  OF  LAW. 

1.  Recovery  of  money— "In  a  large  number  of  cases  it  has  been  decided  that  the  Govern- 
ment can  not  recover  money  voluntarily  paid  by  its  officers  in  consequence  of  an 
erroneous  construction  of  law.  (See  19  Op.  Atty.  Gen.,  429;  21  Op.  Atty.  Gen..  323; 
Hedrick's  Case,  16  Ct.  Cls.,  88;  Arthur  v.  United  States,  16  Ct.  Cls.,  433;  Miller  v. 
United  States,  19  Ct.  Cls.,353;  Badeau  v.  United  States,  130  U.  S.,  439;  United  States 
v.  Ala.  R.  R.  Co.,  142  U.  S.,  621;  Walker  v.  United  States,  139  Fed.  Rep.,  409, 
affirmed  148  Fed.  Rep.,  1022;  20Comp.  Dec. ,182, 185.)"  File  26254-1451:11,  J7  A.  G., 
Apr.  12, 1915,  p.  14.  See  act  of  Aug.  29. 1916,  (39  Stat.  581),  which  reimbursed  an  offi- 
cer for  $360  paid  by  him  under  a  mistake  of  law. 

MISTY  WEATHER. 

1.  Navigation  in.    C.  M.  O.  2, 1915;  3, 1915. 

MITIGATION  OF  SENTENCES.    See  COMMUTING  SENTENCES,  1,  2;  CONVENING  AU- 
THORITY, 39,  62;  REVIEWING  AUTHORITY,  12;  SECRETARY  OF  THE  NAVY,  49-56. 

MITIGATION  OF  SENTENCES  AFTER  FINAL  ACTION.    See  CONVENING  AU- 
THORITY, 62. 

MONEY. 

1.  Borrowing*    See  BORROWING  MONEY;  LENDING  MONEY. 

2.  Deposits.    See  DEPOSITS. 

3.  Disposition — Of  money  of  deceased  officers.    See  DISPOSITION  OF  EFFECTS. 

4.  Naval  Academy — Payment  of  money  to  secure  appointment  to.    See  NAVAL  ACADEMY, 

12,  17. 

5.  Payment  of — To  secure  deserter's  release.    See  DESERTION,  88. 

6.  Transactions — Between  enlisted  men — charging  of  under  "Conduct  to  prejudice  of 

good  order  and  discipline."    See  CONDUCT  TO  THE  PREJUDICE  OF  GOOD  ORDER  AND 
DISCIPLINE,  15. 

7.  Transportation  in  naval  vessels.    See  GOLD,  1. 

MORAL  OBLIQUITY.    See  C.  M.  O.  230, 1902.    See  also  INSANITY,  37. 

MORAL  QUALIFICATIONS  FOR  PROMOTION.    See  MARINE  EXAMINING  BOARDS, 
14;  NAVAL  EXAMINING  BOARDS,  11-15;  PROMOTION,  88-99. 

MORAL  TURPITUDE.    See  C.  M.  O.  16,  1916. 
MORALE  OF  THE  SERVICE.    C.  M.  O.  23, 1910. 

"MORE  THAN  26  YEARS  OF  AGE." 

1.  Construed — With  reference  to  appointment  of  assistant  paymasters — Means  having 
passed  26th  birthday.  See  ASSISTANT  PAYMASTERS,  3. 

MORPHINE.    C.  M.  0. 35, 1915, 4. 

MORRIS  TUBE.    See  C.  M.  O.  28,  1907. 

"MOST  FULLY  AND  HONORABLY."    See  ACQUITTAL,  19,  20. 

MOTHER. 

1.  Death  gratuity— Mother  not  designated— May  appeal  to  Congress.    See  APPEALS,  2; 

DEATH  GRATUITY,  5. 

2.  Same— Mother  may  be  designated  as  a  beneficiary.    See  DEATH  GRATUITY,  13. 

MOTION  TO  STRIKE  OUT  EVIDENCE. 

1.  Court— Should  rule  on.    C.  M.  O.  49, 1915,  12-14.    See  also  COURT,  116. 

2.  Demurrer— Is  virtually  a  motion  to  strike  out.     See  DEMURRER,  4.     See  also  G.  C. 

M.  Rec.  21478a,  p.  4. 

MOURNING  BADGES.    See  BADGES  OF  MOURNING. 

MULTIPLICATION  OR  PLURITY.    See  CHARGES  AND  SPECIFICATIONS,  61-68. 


MURDER.  391 

MURDER. 

1.  China.    See  MURDER,  9. 

2.  Concurrent  Jurisdiction — The  United  States  courts  have  concurrent  jurisdiction 

with  naval  courts-martial  in  cases  of  murder  committed  outside  the  territorial  juris- 
diction of  the  United  States,  but  at  places  within  the  territorial  jurisdiction  thereof 
over  which  there  is  exclusive  Federal  jurisdiction  the  United  States  courts  can 
alone  take  cognizance  of  the  crime  of  murder.  14  J.  A.  G.,  191,  Aug.  4,  1909.  See 
also  MURDER,  20. 

3.  Courts-martial — Jurisdiction  in  cases  of  murder  is  not  conferred  upon  naval  courts- 

martial,  and  article  6  A.  G.  N.  reads  as  follows:  "If  any  person  belonging  to  any 
public  vessel  of  the  United  Stated  commits  the  crime  of  murder  without  the  terri- 
torial jurisdiction  thereof,  he  may  be  tried  by  a  court-martial  and  punished  with 
death."  File  2195-45,  Sec.  Navy,  Dec.  12, 1906;  14  J.  A.  G.,  188,  Aug.  4, 1909.  See  also 
MURDER,  14-16. 

4.  Cuba.    See  MURDER,  11. 

5.  Definition — "  Felonious  homicide  is  the  killing  of  a  human  being  without  legal  justifi- 

cation or  excuse,  and  is  either  murder  or  manslaughter;  murder  being  an  unlawful 
killing  with  malice  aforethought,  and  manslaughter  being  an  unlawful  killing  with- 
out malice  aforethought."  (21  Cyc.,  661.)  Index-Digest,  1914,  28. 

6.  Drunkenness— The  condition  of  the  accused  as  to  sobriety  at  the  time  an  offense  was 

committed  may  in  practice  be  shown  by  evidence.  A  person  charged  with  "  Murder," 
where  a  state  of  intoxication  existed,  which  precludes  the  possibility  of  the  accused 
having  formed  the  necessary  specific  intent,  may  show  this  by  evidence.  File  4578-04. 
See  also  DRUNKENNESS,  22;  INTENT,  2. 5. 

7.  Enlisted  men— Tried  by  naval  general  courts-martial  on  the  charge  of  "Murder." 

C.  M.  O.  12,  1911,  5;  5,  1914,  7;  G.  C.  M.  Rec.  23037;  23654;  27900;  32478  (GUAM). 

8.  Foreign  country— A  fireman,  second  class,  attached  to  a  United  States  naval  vessel, 

at  anchor  off  Cherbourg,  France,  did  on  November  18, 1910,  while  on  liberty  on  shore 
in  the  city  of  Cherbourg,  France,  willfully,  maliciously,  and  with  maliceaforethought, 
and  without  justifiable  cause,  attack  with  a  deadly  weapon  another  enlisted  man 
attached  to  the  same  naval  vessel,  and  did  thereby  kill  and  murder  said  man. 
G.  C.  M.  Rec.  23037. 

9.  Same— Outside  of  Peking,  China— A  corporal,  U.  S.  Marine  Corps,  was  tried  and  found 

guilty  by  a  general  court-martial  (station  case),  for  "Murder,"  the  specification 
alleging  that  he  "knowingly,  willfully,  maliciously,  and  without  justifiable  cause, 
shot  with  a  rifle  and  wounded  one  Wang  Yung  Ch'uan,  a  Chinese  civilian,  from  the 
results  of  which  wound  the  said  Wang  Yung  Ch'uan  died,"  and  that  he  "did  kill  and 
murder  the  said  Wang  Yung  Ch'uan."  C.  M.  O.  5,  1914,  7;  G.  C.  M.  Rec.  27960. 

10.  Same— Cuba.    See  MURDER.  11. 

11.  Guantanamo,  Cuba,  U.  S.  Naval  Station— An  enlisted  man  deliberately  shot  and 

murdered  deceased  in  the  U.  S.  naval  station,  Guantanamo,  Cuba,  on  November  13, 
1900.  The  department  had  no  doubt  respecting  its  power  to  convene  a  general  court- 
martial  for  the  trial  of  the  accused  under  A.  G.  N.  6  and  A.  G.  N.  22,  upon  a  charge 
of  "Manslaughter,"  should  such  charge  be  preferred.  "Naval  courts-martial  have 
not,  however,  at  least  in  recent  years,  undertaken  to  deal  with  the  offense  of  murder 
committed  at  any  place  within  the  jurisdiction  of  the  United  States.  This  Govern- 
ment holds  the  naval  station  at  Guantanamo  under  a  perpetual  lease,  made  in 
pursuance  of  agreement  with  the  Government  of  Cuba,  ratified  October  6, 1903.  The 
terms  of  this  agreement  appear  to  extend  the  territorial  jurisdiction  of  the  United 
States  to  the  naval  station,  Guantanamo,  and  that  station  is  in  fact  under  the  Ameri- 
can flag  and  is  occupied  by  United  States  naval  forces.''  The  department  thereupon 
suggested  to  the  Department  of  Justice  that  the  accused  be  returned  to  the  United 
States  and  tried  by  the  Federal  civil  courts.  The  Department  of  Justice  (Dept. 
Justice  file  95328,  Dec.  18, 1906)  stated  "If  the  Navy  Department  is  willing  to  waive 
its  custody  and  jurisdiction  of  the  man  *  *  *,  and  bring  him  to  this  country, 
with  the  witnesses  and  turn  him  over  to  the  civil  authority  for  trial,  this  would  be  the 
proper  and  preferable  course  to  pursue."  This  was  accordingly  done.  File  633C 
and  2195-45,  Sec.  Navy,  Dec.  21,  1906. 

12.  Guilty  In  a  less  degree  than  charged— Accused  charged  with  "Murder"  and  found 

guilty  of  "Manslaughter." 

Apparently  the  only  explanation  of  the  finding  is  that  thecourt  gave  unusual  weight 
to  the  testimony  of  the  accused  himself  on  the  stand  in  his  own  behalf  or  was  under 
some  misapprehension  as  to  the  distinction  between  murder  and  manslaughter. 
C.  M.  O.  12,  1911,  5. 


392  MURDER. 

13.  Intent — The  authorities  uniformly  agree  that  in  the  crime  of  murder  "a  deliberate 

purpose  need  not  be  long  entertained;  it  is  sufficient  if  it  exist  at  the  moment." 
(Winthrop's  Military  Law,  p.  964.)  [See  MURDER,  19.]  Clark's  Criminal  Law, 
second  edition,  pages  188  and  189,  states: 

"The  use  of  tne  word  'aforethought'  does  not  mean  that  the  malice  must  exist 
for  any  particular  time  before  commission  of  the  act  or  that  the  intention  to  kill  must 
have  previously  existed.  It  is  sufficient  that  it  exist  at  the  time  the  act  is  committed. 
In  short,  the  words  'malice  aforethought'  are  technical  and  must  be  interpreted  in 
the  light  of  a  long  series  of  decided  cases,  which  have  given  them  an  artificial  meaning . ' ' 
C.  M.  O.  12,  1911,  7.  See  also  DRUNKENNESS,  22;  MURDER,  6. 

14.  Jurisdiction — Naval  general  courts-martial  have  no  jurisdiction  over  the  crime  of 

murder  when  committed  in  time  of  peace  within  the  territorial  jurisdiction  of  the 
United  States.  C.  M.  O.  7,  1914,  12. 

lo.  Same — The  Department  of  Justice  in  a  letter  to  the  Navy  Department,  December  18, 
1906  (Dept.  Justice  file  95328)  stated  that  the  reason  naval  courts-martial  have  not 
undertaken  to  deal  with  the  offense  of  "Murder"  committed  at  any  place  within  the 
jurisdiction  of  the  United  States,  is  "due,  in  part,  at  least,  to  the  fact  that  the  trial  and 
punishment  of  such  grave  offenses,  by  courts  which  proceed  according  to  the  course 
of  the  common  law,  and  with  its  humane  safeguard  of  the  rights  of  the  accused,  in- 
cluding that  of  a  trial  by  jury,  are  more  consonant  with  the  feelings  of  our  people,  and 
with  the  spirit  of  our  institutions,  than  can  be  such  trial  and  punishment  by 
any  military  or  naval  tribunal."  File  6336  and  2195-45,  Sec.  Navy,  December,  1900. 

16.  Same — The  punishment  of  "Murder"  on  board  naval  vessels  is  not  vested  in  naval 

courts-martial  unless  the  crime  was  committed  without  the  territorial  jurisdiction 
of  the  United  States,  though  if  the  crime  be  "Manslaughter"  it  may  be  taken 
cognizance  of  by  a  naval  court-martial.  14  J.  A.  G.,  189-190,  Aug.  4,  1909. 

17.  Same — Concurrent  jurisdiction.    See  MURDER,  2,  20. 

18.  Limitation  of  punishment — "While  the  'Limitation  of  Punishment'  prescribed 

by  the  President  for  military  courts  does  not  distinguish  between  murder  in  the  first 
and  the  second  decrees,  the  Federal  Statutes  do  so  distinguish  the  different  degrees  of 
murder.  The  minimum  punishment  prescribed  by  the  Federal  Statutes  for  murder 
in  the  second  degree  is  ten  years'  imprisonment."  C.  M.  O.  5, 1914,  7-8. 

19.  Malice — Where  the  accused,  armed  with  a  knife,  renewed  a  quarrel  and  was  in  fact 

the  aggressor,  he  cannot  be  considered  as  being  "without  malice"  and  is  guilty  of 
"Murder"  in  such  killing.  A  deliberate  purpose  to  kill  need  not  be  long  entertained; 
it  is  sufficient  if  it  exist  at  the  moment  of  killing  in  order  to  constitute  "malice." 
C.  M.  O.  12, 1911,  6-8.  See  also  MURDER,  13. 

20.  Massachusetts,  county  of  Barns  table — If  an  enlisted  man  attached  to  a  naval  vessel 

commits  a  homicide  within  the  limits  of  the  county  of  Barnstable,  in  the  State  of 
Massachusetts,  the  State  courts  would  have  jurisdiction  in  a  case  of  murder  to  the 
exclusion  of  the  United  States  courts  as  well  as  naval  courts-martial.  If,  however, 
the  offense  be  charged  as  "Manslaughter,"  then  the  jurisdiction  of  the  State  courts 
and  of  naval  ceurts-martial  would  be  concurrent,  and  he  might  be  tried  by  either. 
14  J.  A.  G.,  191,  Aug.  4,  1909. 

21.  Naval  vessel  at  sea — A  mess  attendant,  third  class,  United  States  Navy,  was  tried 

by  general  court-martial  on  the  charge  of  "Murder"  committed  on  a  naval  vessel 
at  sea  off  Santo  Domingo,  Dominican  Republic.  The  court  found  him  guilty  in  a  less 
degree  than  charged,  guilty  of  "Manslaughter,"  and  sentenced  him  to  confinement 
for  five  years  with  corresponding  hard  labor,  forfeiture  of  pay,  and  dishonorable  dis- 
charge. 

The  department  criticized  the  court  for  not  finding  the  accused  guilty  of  the  offense 
as  charged  and  for  adjudging  an  inadequate  sentence. 

Owing  to  the  impracticability  of  reconvening  the  court  and  in  order  that  the 
•ited  punisnment,  the  department,  subject  to 
"oceedings,  findings,  and  sentence  in  this  case. 


22.  Naval  vessel  at  navy  yard,  Philadelphia,  Pa.— Accused  killed  another  enlisted  man 
on  board  a  naval  vessel  at  the  navy  yard,  Philadelphia,  Pa.  Accused  was  first 
turned  over  to  the  civil  authorities  for  trial,  but  later  when  it  was  found  that  the 
trial  would  develop  certain  scandalous  evidence  the  Attorney  General  advised  that 
the  accused  be  tried  by  a  naval  court-martial  for  "Manslaughter,"  and  he  was  de- 
livered to  the  naval  authorities  and  so  tried.  14  J.  A.  G.,  188-189,  Aug.  4,  1909;  File 
6674:49,  J.  A.  G.,  May  27,  1912. 


MURDER.  393 

23.  Same— The  above  man  could  not  be  tried  by  naval  court-martial  for  "Murder"  as  a 

general  court-martial  would  not  have  had  jurisdiction  of  that  offense.  File  6674:49, 
J.  A.  G.,  May  27, 1912. 

24.  Same— Murder  committed  by  an  enlisted  man  on  board  a  naval  vessel  at  the  navy 

yard,  Philadelphia,  Pa.,  may  be  dealt  with  by  naval  court-martial  as  "Manslaughter. " 
G.  C.  M.  Rec.  16098;  File  6674-10,  Mar.  8, 1910. 

25.  Naval  vessel  at  San  Juan,  Porto  Rico— Accused  stabbed  a  shipmate  from  which 

wound  the  latter  died,  the  occurrence  happening  on  board  a  naval  vessel  at  San  Juan, 
Porto  Rico.  The  department  directed  that  the  accused  be  brought  to  trial  by  a 
general  court-martial  unless  the  insular  authorities  desired  to  take  up  the  case.  As 
there  was  no  demand  for  the  surrender  of  the  accused,  he  was  brought  to  trial  for 
"Manslaughter"  before  a  general  court-martial.  14  J.  A.  G.,  189,  Aug.  4,  1909. 

26.  Naval  vessel  at  New  York  Navy  Yard — Murder  committed  on  board  a  naval  vessel 

which  was  lying  at  the  Cob  Dock  at  the  navy  yard,  New  York,  in  the  waters  of 
Wallabout  Bay,  on  June  30,  1897.  14  J.  A.  G.,  191,  Aug.  4,  1909.  See  also  U.  S.  v. 
Carter  (84  Fed.  Rep.  622);  JURISDICTION,  92. 

27.  Naval  vessel  at  Norfolk,  Va.,  Navy  Yard — Accused  was  charged  with  shooting  and 

killing  another  man  on  January  1,  1877,  on  board  a  naval  vessel  lying  at  the  wharf 
in  what  is  now  known  as  the  Norfolk  navy  yard.  The  Commonwealth  of  Virginia 
had  ceded  to  the  United  States  the  territory  and  all  the  jurisdiction  which  the  Com- 
monwealth possessed,  over  the  public  lands  known  by  the  name  of  Gosport  and  certain 
lands  immediately  opposite,  for  the  purpose  of  a  navy  yard.  The  accused  was  ar- 
raigned before  a  United  States  commissioner  and  admitted  to  bail;  while  at  liberty 
he  was  arrested  under  a  warrant  of  the  mayor  of  Portsmouth  and  committed  to  jail. 
The  prisoner  asked  for  a  writ  of  habeas  corpus.  It  was  held  that  the  Federal  court 
and  not  the  State  court  had  jurisdiction.  (Ex  parte  Tatem,  1  Hughes  588.  See 
also  U.  S.  v.  Cornell,  2  Mason,  60;  U.  S.  v.  Ames,  1  Woodbury  and  Mason,  76.)  14  J. 
A.  G.,  190-191.  Aug.  4, 1909;  JURISDICTION,  93. 

28.  Naval  vessel  on  a  foreign  country.    See  MURDER.  8. 

29.  Officers— Charged  with.    G.  C.  M.  Rec.  10195;  10196. 

30.  Porto  Rico.    See  MURDER,  25. 

31.  San  Juan,  Porto  Rico.    See  MURDER,  25. 

32.  Self-def  ense-^-" It  is  well  established  that  one  who  is  the  aggressor  or  provokes  the  diffi- 

culty in  which  he  kills  his  assailant  can  not  invoke  the  right  of  self-defense  to  justify 
or  excuse  the  homicide  unless  he  in  wod  faith  withdraws  from  the  combat  in  sucn 
a  manner  as  to  show  his  adversary  his  intention  in  good  faith  to  desist.  It  is  not 
enough  to  justify  or  excuse  the  homicide  that  in  the  course  of  the  difficulty  it  became 
necessary  for  defendant  to  kill  the  deceased  in  order  to  save  his  own  life  or  prevent  great 
bodily  harm,  but  he  must  also  have  been  free  from  fault  in  provoking  or  continuing  the 
difficulty  which  resulted  in  the  killing."  (21  Cyc.  805).  C.  M.  O.  12,  1911,  7.  See 
also  MANSLAUGHTER,  13  (pp.  355-358). 

33.  Specific  Intent.    See  MURDER,  6,  13. 

MUTE.    See  ARRAIGNMENT,  9, 18-24;  JEOPARDY,  FORMER,  38. 

"  MUTINOUS  CONDUCT." 

1.  Acting  master's  mate — Found  guilty  of,  by  general  court-martial.    G.  O.  44,  Dec.  7, 

1864. 

2.  Enlisted  men— Charged  with.    C.  M.  O.  40,'  1880;  37,  1882;  46,  1882;  9.  1883;  91,  1897; 

84,1889. 

MUTINY. 

1.  "  Knowing  of  an  Intended  mutiny,  not  communicating  his  knowledge  to  his 

superior  or  commanding  officer " — General  court-martial  prisoner  (enlisted 
man)  tried  by  general  court-martial.  G.  C.  M.  Rec.  23522. 

2.  Sedition — Mutiny  discussed  in  connection  with  sedition.    See  SEDITION,  1. 

NAMES. 

1.  Arraignment— Name  of  accused.    See  ARRAIGNMENT,  25-27. 

2.  Change  of.    See  NAME,  CHANGE  OF. 

3.  Charges  and  specifications — Middle  names  may  be  abbreviated.    See  CHARGES  AND 

SPECIFICATIONS,  60. 

4.  Judge  advocate's  name— Published  in  a  Court-Martial  Order.    See  COURT-MARTIAL 

ORDERS,  19;  CRITICISM  OF  COURTS-MARTIAL,  41. 

5.  Members  of  courts-martial — Names  published  in  Court-Martial  Order.    See  COURT- 

MARTIAL  ORDERS,  19;  CRITICISM  OF  COURTS-MARTIAL,  41. 


394  NAMES. 

0.  Sentences — Should  include  name  and  rank  of  accused — A  general  court-martial  sentence 

should  contain  the  name  and  rank  of  the  accused  in  order  to  show  specifically  who 
was  sentenced.  (Navy  Regulations,  1913,  R-816  (4);  Forms  of  Procedure,  1910,  p.  42; 
C.  M.  O.  37.  1909,  3;  42,  1909,  6;  55,  1910,  8;  30,  1910,  7;  1.  1913,  5;  20,  1913,  3;  42,  1914,  5. 
See  also  C.  M.  O.  53,  1910;  54.  1910;  7,  1912;  8,  1912;  G.  C.  M.  Rec.  21478;  in  which  the 
sentences  were  of  irregular  form  in  that  they  did  not  include  the  name  and  desig- 
nation of  accused.)  C.  M.  O.  14,  1915.  2. 

7.  Same — Name  of  accused  should  be  spelled  correctly  in  sentence.    C.  M.  O.  16,  1912,  3. 

8.  Specifications— Middle  name  of  accused  may  be  abbreviated.    See  ABBREVIATION,  1. 

NAME,  CHANGE  OF. 

1.  Assumed  name — Recruiting  officer  properly  refused  to  enlist  an  applicant  under  an 

assumed  name.    See  NAME,  CHANGE  OF,  5. 

2.  Fraudulent  enlistment  cases — Where  a  man's  name  is  incorrectly  recorded,  the 

department  has  authorized  him  to  use  his  true  name  without  prior  legal  sanction 
being  exacted.  This  is  the  practice  in  the  cases  of  men  who  fraudulently  enlist  under 
assumed  names  after  having  previously  enlisted  under  their  true  name.  In  such 
cases,  when  as  a  result  of  court-martial  proceedings  or  otherwise  the  true  name  of  the 
man  is  ascertained,  the  department  changes  the  record  of  his  fraudulent  enlistment 
so  as  to  show  his  true  name  by  which  he  is  thereafter  known  while  serving  sentence, 
and  during  the  remainder  of  his  enlistment  if  restored  to  duty.  (See  File  24308-2, 
Sec.  Navy,  Sept.  28,  1910.)  File  24368-13,  J.  A.  G.,  March  29,  1915. 

3.  "  Jr." — Permission  granted  to  drop — An  officer  having  the  same  name  as  his  father,  a 

retired  naval  officer,  requested  permission  to  drop  the  "jr."  from  his  name  owing  to 
the  death  of  his  father,  which  request  was  granted  in  accordance  with  the  department's 
precedents.  File  24368-15,  Sec.  Navy,  May  6,  1915;  C.  M.  O.  20,  1915,  7.  See  also 
C.  M.  O.  12,  1915,  pp.  10-11;  C.  M.  O.  16,  1915,  p.  6;  File  24368-4,  Sec.  Navy,  July  11, 
1911;  24368-13,  J.  A.  G.,  March  29,  1915;  24368-20,  Sec.  Navy,  Sept.  5,  1910. 

4.  Proof  that  name  desired  was  true  name.    See  NAME,  CHANGE  OF,  14. 

5.  Recruit  enlisted  under  true  name — An  applicant  applied  for  enlistment  under  an 

assumed  name,  stating  that  he  had  been  known  by  the  name  under  which  he 
applied  for  some  years.  Upon  advice  of  recruiting  officer  applicant  enlisted  under  his 
original  name. 

The  action  of  the  recruiting  officer  in  enlisting  this  man  under  his  original  name 
was  proper.  The  records  of  the  Navy  are  an  important  part  of  the  historical  records 
of  the  country,  and  should  as  far  as  possible  be  correct.  To  this  end  the  department 
customarily  approves  of  changes  in  the  cases  of  persons  who,  while  still  in  the  Navy, 
satisfactorily  establish  that  their  true  names  are  different  from  those  shown  in  the 
records  or  who  comply  with  statutory  provisions  by  obtaining  judicial  sanction  of 
changes  in  their  original  names;  and  In  cases  of  persons  not  in  the  Navy  general 
laws  have  been  passed  authorizing  such  changes  where  the  applicants  served  under 
assumed  names  during  the  Civil  and  Spanish  wars;  and  special  acts  have  been  passed 
in  individual  cases  not  covered  by  the  general  law.  For  the  department  knowingly 
to  enlist  persons  under  assumed  names  would  be  to  sanction  and  to  encourage  such 
practice,  and  to  invite  confusion  in  its  records  and  considerable  additional  work 
which  is  involved  in  all  such  cases  when  applications  are  received  from  persons  who 
have  entered  the  Navy  under  assumed  names  and  desire  to  have  the  records  changed. 
File  24368-13,  Sec.  Navy,  March  29,  1915;  C.  M.  O.  12,  1915,  10-11. 

6.  Right  to  change  names— "It  is  a  custom  for  persons  to  bear  the  surname  of  their 

parents,  but  it  is  not  obligatory.  A  man  may  lawfully  change  his  name  without 
resort  to  legal  proceedings,  and  for  all  purposes  the  name  thus  assumed  will  con- 
stitute his  legal  name  just  as  much  as  if  he  had  borne  it  from  birth."  (29  Cyc.  271. 
See  also  Christiansen  v.  King  County,  196  Fed.  Rep.  791,  792;  Loser  v.  Plainfield 
Sav.  Bk.,  128  N.  W.  1101.) 

In  some  States  statutes  have  been  enacted  which  provide  for  legal  proceedings 
on  the  application  of  persons  desiring  to  change  their  names,  but  it  has  been  held  that 
such  proceedings  arp  not  exclusive  and  do  not  affect  the  common  law  right  of  individ- 
uals to  change  their  names  at  will.  (In  re  McUeta,  189  Fed.  Rep.  250.  See  also 
131  N.  Y.  S.  890;  124  N.  Y.  S.  989.) 

A  full  discussion  of  the  law  and  decisions  on  this  subject  will  be  found  in  Smith 
v.  U.  S.  Casualty  Co.  (197  N.  Y.  420),  and  in  the  note  to  said  case  published  in  18 
Ann.  Cas.  701.  The  subject  is  also  quite  fully  considered  in  the  note  to  Laflin  etc.  Co. 
c.  Steytler  (14  L.  R.  A.  690).  File  24308-13,  J.  A.  G.,  March  29, 1915.  But  see  NAME, 
CHANGE  OF,  7-14,  which  state  the  rule  of  the  department.  See  also  File  8267-03, 
J.  A.  G.,  Sept.  29,  1903;  4754-03;  23  J.  A.  G.,  308. 


NAME,   CHANGE   OF  395 

7.  Rule  of  the  department — The  department's  rule  does  not  go  so  far  as  to  render  it 
impossible  for  persons  in  the  naval  service  to  change  their  names  on  the  records, 
but  provides  in  general  that  legal  sanction  must  first  be  obtained.  It  is  contrary 
to  the  department's  policy  to  allow  persons  in  the  naval  service  to  make  even  slight 
changes  in  their  names,  so  far  as  concerns  the  naval  records,  unless  they  deem  the 
matter  of  sufficient  consequence  first  to  obtain  legal  sanction  for  such  change.  In  the 
case  of  Smith  v.  U.  8.  Casualty  Co.  (197  N.  Y.  420)  reference  was  made  to  the  case  of 
General  Grant  whose  baptismal  name  was  Hiram  Ulysses  "and  he  bore  that  appel- 
lation until  he  was  appointed  a  cadet  at  West  Point.  General  Hamer,  who  nominated 
him  for  a  cadetship,  by  some  means  got  his  name  mixed  up  with  that  of  his  brother. 
He  was,  therefore,  appointed  as  '  Ulysses  Sidney  Grant'  and  that  name  once  recorded 
on  the  books  of  the  military  academy  co-j,ld  not  be  changed.  He  was  baptized  into  the 
military  school  as  U.  S.  Grant,  and  he  has  ever  since  been  thus  designated."  File 
24368-13.  J.  A.  G.,  March  29,  1915. 

S.  Same— The  department  declined  to  authorize  an  officer  named  "Wells"  to  change 
the  spelling  of  his  name  to  "Welles"  in  the  absence  of  legal  action,  the  department 
stating  that  it  "deems  it  inadvisable  to  make  changes  of  this  character  except  in 
cases  where  the  legal  steps  to  effect  the  change  of  name  have  been  taken  by  the 
officer  interested  in  pursuance  of  the  requirements  of  local  law."  File  4982-96, 
Sec.  Navy.  May  27.  1896,  quoted  approvingly  in  File  24368-13,  J.  A.  G.,  March  29, 
1915.  See  also  File  7219-3,  March  12,  1908. 

9.  Same— An  officer  was  informed  that  his  application  would  be  granted  to  change  his 
middle  name  "Smith"  to  "Burbridge"  only  after  he  had  obtained  legal  sanction 
therefor,  the  department  stating  in  part:  "  In  view  of  the  inconvenience  and  possible 
confusion  resulting  from  changes  of  this  nature  in  an  organization  such  as  that  of 
the  Navy,  the  department  considers  they  should  not  be  made  except  in  cases  where  the 
parties  themselves  have  deemed  the  matter  to  be  of  sufficient  importance  to  effect 
the  change  in  accordance  with  the  provisions  of  law."  Subsequently,  this  officer 
having  complied  with  the  statutory  provisions  on  the  subject,  the  department 
authorized  the  change  in  question.  File  7219,  J.  A.  G.,  May  18,  1907;  7219:2.  Sec. 
Navy,  Feb.  15, 1908,  quoted  with  approval  in  File  24368-13,  J.  A.  G.,  March  29,  1915. 

10.  Same— The  department  affirmed  its  decision  of  March  29. 1907,  that  a  retired  naval 

officer  was  not  authorized  to  drop  his  middle  name  and  initial  without  court  pro- 
ceedings. This  retired  officer  forwarded  a  statement  to  him  from  an  attorney  that 
court  proceedings  were  not  necessary  for  such  change.  The  department  in  its  letter 
of  May  18,  1907,  stated  that  it  was  familiar  with  the  authorities  on  the  question; 
"that  these  cases  relate,  however,  to  the  transactions  of  private  life  wherein  the  pres- 
ence or  omission  of  the  middle  name  has,  in  some  cases,  been  held  not  to  be  significant. 
An  organization  such  as  that  of  the  Navy  presents,  however,  different  conditions. 
Inconvenience  and  possible  confusion  result  from  changes  in  the  permanent  records 
of  the  naval  service  and  such  changes  should  never  be  made  except  for  good  and  suffi- 
cient reasons.  The  department  considers  that  it  is  inadvisable  to  make  changes  of  this 
character  except  in  cases  where  the  parties  concerned  have  themselves  deemed  the 
changes  to  be  of  sufficient  importance  to  effect  them  in  pursuance  of  the  requirements 
of  law."  File  7219-1,  Sec.  Navy,  May  18, 1907,  quoted  with  approval  in  File  24368-13, 
J.  A.  G..  March  29, 1915. 

11.  Same— The  mother  of  a  former  enlisted  man  having  married  a  second  time  he  requested 

that  the  department's  records  be  changed  so  that  he  will  be  known  under  the  name 
of  his  stepfather,  and  that  a  new  discharge  be  issued  him  under  the  latter  name. 
Held,  that  the  department  has  consistently  declined  to  approve  of  even  slight  changes 
in  the  names  of  its  personnel,  where  it  is  admitted  that  the  recorded  name  is  correct, 
except  where  legal  sanction  for  such  change  is  first  obtained;  that  the  marriage  of 
the  mother  does  not  of  itself  convey  the  name  of  the  stepfather  to  the  child;  that 
even  though  this  man's  name  were  changed  by  legal  proceedings,  the  department 
would  not  be  authorized  to  issue  him  a  certificate  of  discharge  from  the  naval  service 
in  his  new  name  in  lieu  of  discharge  in  his  true  name  previously  issued  to  him;  that 
even  in  cases  where  persons  enlist  in  and  are  discharged  from  the  naval  service  under 
assumed  names,  certificates  of  discharge  can  not  thereafter  be  issued  to  them  in  true 
name  except  in  those  cases  which  are  specifically  covered  by  statute.  (See  C.  M. 
O.  12,  1915, 11;  File  24368-13,  J.  A.  G..  Mar.  29,  1915;  7219-2.)  File  24368-14,  J.  A.  G.f 
Apr.  24, 1915;  C.  M.  0. 16, 1915,  6.  See  also  NAME,  CHANGE  OF,  15, 16. 

12.  Same— Department  will  not  make  changes  in  the  names  of  naval  officers  unless  they 

deem  the  matter  of  sufficient  importance  to  make  application  to  the  civil  courts  to 


396 

have  such  changes  made  in  pursuance  of  law.  File  4982-1896;  7219  and  7219-1, 1907; 
See  also  File  6400-25;  24368-4;  7219-2;  7219-3;  77  Navy  and  M.  C.  Let.  Book,  422;  55 
Navy  and  M.  C.  Let.  Book,  4C5  and  469. 

13.  Same — A  man  named  "  Schall"  was  tried  by  general  court-martial  and  three  summary 

courts-martial  previous  convictions  introducad.  It  appeared  from  an  examination 
of  the  department's  records  that  no  man  named  "Scliall"  had  in  fact  been  tried  by 
summary  court-martial,  and  it  was  only  after  making  inquiries  at  Marine  Corps 
headquarters  that  it  was  learned  that  during  the  period  covered  by  the  extracts  of 
previous  convictions  the  accussd  was  serving  under  the  name  of  "  Ellsworth,"  and 
that  he  was  subsequently  authorized  to  assume  the  name  of  "Schall."  C.  M.  O. 
59,  1903,  2. 

14.  Slight  changes — Cases  have  arisen  in  which  slight  changes  have  been  authorized 

by  the  department  in  the  names  of  persons  in  the  naval  service  where  such  changes 
were  for  the  purpose  of  making  the  naval  records  show  the  man's  true  name.  Thus, 
for  example,  a  paymaster's  clerk  was  granted  permission  to  make  a  slight  change  in 
his  name,  satisfactory  evidence  being  furnished  the  department  that  the  name  desired 
was  the  true  name  of  this  officer.  File  5460-25,  Sec.  Navy,  Dec.  10, 1908. 

15.  Stepson — Does  not  necessarily  take  his  stepfather's  name.    See  NAME,  CHANGE  OF.  11. 

16.  Statutes — "  During  many  years  subsequent  to  the  War  of  the  Rebellion  large  numbers 

of  bills  were  introduced  hi  Congress  asking  relief  in  cases  where  men  had  enlisted  in 
the  Army  or  Navy  under  assumed  names.  In  most  cases  this  had  been  done  innocently 
by  the  person  enlisting,  without  realization  of  the  difficulties  in  correcting  the  record 
thereafter.  In  such  cases  these  bills  had  the  favorable  consideration  of  Congress, 
and  relief  was  granted  by  special  legislation.  In  1890  a  general  act  was  passed  giving 
relief  to  all  soldiers  and  sailors  who  had  enlisted  or  served  under  assumed  names, 
while  minors  or  otherwise,  in  the  Army  or  Navy,  during  the  War  of  the  Rebellion, 
except  in  cases  where  names  had  been  assumed  to  cover  crimes  or  avoid  their  con- 
sequences." Senate  Report  No.  882,  61st  Congress,  2d  session. 

By  act  approved  June  25,  1910  (36  Stat.  824),  the  previous  law  of  April  14, 1890  (26 
Stat.  55),  was  extended  to  include  the  soldiers  and  sailors  who  enlisted  under  assumed 
names  during  the  War  with  Spain  or  the  Philippine  insurrection.  The  law  as  thus 
amended  reads  as  follows: 

"  That  the  Secretary  of  War  and  the  Secretary  of  the  Navy  be,  and  they  are  hereby, 
authorized  and  required  to  issue  certificates  of  discharge  or  orders  of  acceptance  oif 
resignation,  upon  application  and  proof  of  identity,  in  the  true  name  of  such  persons 
as  enlisted  or  served  under  assumed  names,  while  minors  or  otherwise,  in  the  Army 
and  Navy  during  the  War  of  the  Rebellion,  the  War  with  Spain,  or  the  Philippine  insur- 
rection, and  were  honorably  discharged  therefrom.  Applications  for  said  certificates 
of  discharge  or  amended  orders  of  acceptance  of  resignation  may  be  made  by  or  on 
behalf  of  persons  entitled  to  them;  but  no  such  certificate  or  order  shall  be  issued 
where  a  name  was  assumed  to  cover  a  crime  pr  to  avoid  its  consequences." 

It  will  be  seen  from  the  foregoing  that  Congress  has  provided  for  the  issuance  of 
certificates  of  discharge  in  true  name,  first,  by  special  legislation  applicable  to  indi- 
vidual cases;  second,  oy  a  general  act  applicable  to  persons  who  served  during  the 
Civil  War;  and,  third,  by  another  general  enactment  amending  the  previous  law  so 
as  to  include  persons  who  served  during  the  War  with  Spam  and  the  Philippine 
insurrection.  Congress  having  assumed  jurisdiction  of  this  subject  and  legislated  in 
connection  therewith,  designating  the  specific  classes  of  cases  in  which  the  Secretary 
of  the  Navy  was  "authorized  and  required"  to  issue  certificates  of  discharge  in  true 
name,  it  is  not  believed  that  the  department  should  assume  the  authority  to  issue 
such  certificates  in  cases  which  Congress  has  not  seen  fit  to  include  in  its  legislation. 
The  action  of  Congress  hi  this  matter  has  settled  the  policy  of  the  Government  to  be, 
that  the  cases  in  which  certificates  of  discharge  in  true  name  should  be  issued  to 
persons  no  longer  in  the  service  are  to  be  determined  by  the  legislative  and  not  the 
executive  branch  of  the  Government.  While  it  is  undoubtedly  within  the  general 
powers  of  the  department  to  correct  its  records  to  accord  with  the  facts,  yet  when  a 
man  has  served  through  an  enlistment  and  received  a  discharge  under  an  assumed 
name  he  has  no  further  connection  with  the  service  and  this  department  is  not  officially 
concerned  in  his  subsequent  movements  or  the  motives  which  may  in  later  years 
influence  him  to  seek  a  certificate  of  discharge  in  a  name  other  than  that  under  which 
he  served.  Should  the  department  undertake  to  investigate  and  determine  the 
facts  in  all  cases  of  men  who  may,  for  various  reasons,  have  served  in  the  Navy  or 
Marine  Corps  under  assumed  names,  and  issue  to  them  certificates  of  discharge  in  true 


NAME,    CHANGE   OF  397 

name,  the  burden  would  be  much  greater  than  that  which  Congress  has  seen  fit  to 
place  upon  the  department,  and  in  view  of  the  legislation  already  referred  to.  such  a 
course  could  not  aopropriately  be  pursued  without  a  further  expression  by  Congress 
of  its  wishes  in  the  premises.  File  24368-13,  J.  A.  G.,  March  29, 1915.  See  also  NAME, 
CHANGE  OF,  11. 

NARCOSIS.    See  G.  C.  M.  Rec.  30485,  p.  117. 

NATURAL  CONSEQUENCES.    See  ACTS,  3. 

NATURAL  DEATH.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  68. 

NATURALIZATION.    See  CITIZENSHIP. 

NATURALIZATION  CERTIFICATE.    See  CITIZENSHIP,  26. 

NAUTICAL  ALMANAC.  See  File  17626;  9449-04,  Mar.  18,  1904;  18168-25;  9449-04,  Dec.. 
2,  1904;  17279-3,  May  11,  1905;  9449-04;  17626,  Jan.  19,  1905;  1112-04,  Feb.  12,  1904; 
17279-02,  Feb.  13, 1904. 

NAVAL  ACADEMY.    See  also  "  BOARD  OF  INQUIRY;"  HAZING;  MIDSHIPMEN. 

1.  Academic  Board  of.    See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY. 

2.  Aliens — Appointment  of  as  midshipmen.    See  MIDSHIPMEN,  8;  RES  JUDICATA,  8. 

3.  Appointments  to.    See  MIDSHIPMEN,  5^,  11-16,  43,  52,  53.  55,  70-73,  75. 

4.  Civil  War  service — Service  during  Civil  War  at  Naval  Academy.    See  CIVIL  WAR 

SERVICE,  3. 

5.  Civilian  dentist  at.    See  APPOINTING  POWER,  2;  DENTAL  SURGEONS,  7. 

6.  Dentist  at  the  Naval  Academy.    See  APPOINTING  POWER,  2;  DENTAL  SURGEONS,  7. 

7.  Enlisted  men  of  Navy — Appointment  of  as  midshipmen.    See  MIDSHIPMEN,  13,  14. 

8.  Enlisted  men  of  the  Marine  Corps — Appointment  of  as  midshipmen.    See  MID- 

SHIPMEN, 52. 

9.  Filipinos— Appointment  as  midshipmen.    See  Act,  August  29,  1916  (39  Stat.  576). 

10.  Foreigners — As  students  at  Naval  Academy.    See  MIDSHIPMEN,  8. 

11.  Hazing.    See  HAZING. 

12.  Influence  to  secure  appointments— "  It  is  of  the   utmost   importance   to   the 

character  and  efficiency  of  any  military  service  that  its  tone  should  be  maintained 
at  the  highest  standard  of  personal  and  professional  honor,  and  particularly,  that  it 
should  be  invariably  regarded  and  treated  by  all  connected  with  it,  as  entirely  above 
and  disconnected  from  mercenary  influences  of  any  kind.  The  use  of  such  influences, 
under  any  circumstances  of  inducement  by  a  naval  officer,  to  procure  an  appointment 
to  the  Naval  Academy,  is  calculated  to  lower  the  tone  of  the  service  where  it  should 
be  the  highest  and  purest;  and  countenance  or  excuse  of  such  action,  by  his  brother 
officers  or  by  the  department  would -bring  the  Navy  into  deserved  discredit."  The 
accused  in  this  case  was  tried  by  general  court-martial  for  paying  money  intended  as 
the  consideration  for  services  rendered  hi  procuring  the  appointment  of  his  son  to 
the  Naval  Academy.  G.  O.  156,  May  24,  1870.  See  also  CONGRESS,  11. 

13.  Longevity  pay — Service  at  the  Naval  Academy  as  a  midshipman  counts  for  longevity. 

See  LONGEVITY. 

14.  Marines — Appointment  of  enlisted  Marines  as  midshipmen.    See  MIDSHIPMEN,  52. 

15.  Marine  Corps;— The  act  of  July  9, 1913  (38  Stat.  103),  "makes  the  Naval  Academy  in 

effect  a  training  school  for  the  Marine  Corps  as  fully  as  for  the  Navy  proper."  File 
5252-66,  J.  A.  G.,  May  12, 1915. 

16.  Misconduct— Of  officer  on  duty  at  Naval  Academy.    C.  M.  O.  14,  1915. 

17.  Money — Appointments  to  the  service  may  not  properly  be  obtained  by  the  payment 

of  money,  and  the  Navy,  at  least,  must  neither  be,  nor  seem  to  be,  in  any  way  con- 
nected with  such  a  practice.  See  NAVAL  ACADEMY,  12;  CONGRESS,  11. 

18.  Offense — Aggravated  by  the  fact  that  the  officer  was  on  duty  at  the  Naval  Academy. 

C.  M.  O.  14,  1915. 

19.  Reappointment  of  midshipmen.    See  MIDSHIPMEN,  70. 

20.  Reinstatement  of  midshipmen.    See  MIDSHIPMEN,  75. 

21.  Regulations  of  the  U.  S.  Naval  Academy,  19 11,  p.  116— Issued  under  the  author- 

ity of  R.  S.  161  and  have  same  force  as  Naval  Instructions.    J.  A.  G.,  June  7. 1915. 

"Under  the  present  practice,  plenary  authority,  the  Secretary  makes  the  regu- 
lations and  can  modify  or  change  them  at  will,  provided,  of  course,  no  statute  is 
thereby  trenched  upon.  The  regulations  of  the  Naval  Academy  do  not,  strictly 
speaking,  form  a  part  of  the  regulations  for  the  government  of  the  Navy.  They  are 


398  NAVAL  ACADEMY. 

not  embodied  therein,  and  do  not  come  under  section  1547,  R.  S.,  giving  the  Navy 
Regulations  the  force  of  law.  The  regulations  of  the  Academy  are  not  directly  ap- 
proved by  the  President  as  are  the  Navy  Regulations.  The  Secretary  makes  and 
can  therefore  change  the  regulations  of  the  Naval  Academy. 

"The  academy  regulations  are  not  issued  under  any  explicit  statute.  The 
Academy  being  under  naval  control  is  administered  by  the  Secretary  of  the  Navy, 
and  it  is  assumed  that  he  makes  the  regulations  of  the  Academy  under  his  general 
powers  as  Secretary,  but  there  are  certain  clauses  in  the  statutes  touching  more  or  less 
directly  upon  the  matter,"  as  for  instance,  R.  S.  1515;  R.  S.  1520;  R.  S.  1526;  Act, 
Aug.  5, 1882  (22  Stat.  285);  Act,  March  3, 1903  (32  Stat.  1197);  R.  S.  1519;  R.  S.  1521  as 
amended  by  Act,  Aug.  5, 1882  (22  Stat.  283),  June  26, 1884  (23  Stat.  60),  March  2, 1889 
(25  Stat.  878),  March  3,  1899  (30  Stat.  1004),  March  3,  1903  (32  Stat.  1197). 

"  Duly  formulated  regulations  being  essential  to  the  proper  administration  of  such 
an  establishment  as  the  Naval  Academy"  the  "effect  of  the  statutes  on  the  subject 
is  to  place  the  power  of  making  such  regulations  in  the  hands  of  the  Secretary  of  the 
Navy,  subject  to  the  general  direction  of  the  President."  36  J.  A.  G.,  195,  March 
19, 1907. 

22.  Sea  duty — There  is  no  legal  obstacle  to  providing  that  the  course  at  the  Naval  Academy 

shall  be  so  arranged  as  to  include  one  year  at  sea.    File  5252-70:2,  J.  A.  G.,  May  3, 1916. 

23.  Service  at — Longevity  pay.    See  LONGEVITY. 

24.  Six  year  course— Meaning  of.    See  File  313-42,  J.  A.  G.,  March  3,  1908,  p.  4.    See  also 

Harmon  v.  U.  S.  (23  Ct.  Cls.  412);  Potter  v.  U.  S.  (34  Ct.  Cls.  14, 16);  Crenshaw  v.  U.  S. 
(134  U.  S.  109). 

25.  Statutory  history— Of  the  Naval  Academy.    See  Weller  v.  U.  S.  (41  Ct.  Cls.  324-343). 

26.  "Year" — Definition  of  "year  "as  applied  to  the  academic  courseatthe  Naval  Academy. 

File  313-42,  J.  A.  G.,  March  3,  1908. 

NAVAL,  ATTACHES. 

1.  Brazil,  Republic  of — In  accordance  with  a  joint  resolution  of  Congress,  approved  October 

13,  1914,  a  naval  officer  was  granted  leave  of  absence  by  the  President,  to  assist  the 
Republic  of  Brazil  as  an  instructor  in  the  Naval  War  College  of  that  country,  provided 
that  while  so  absent  in  the  sendee  of  Brazil  he  shall  receive  no  pay  or  allowances 
from  the  United  States  Government.  The  resolution  further  provided:  "That 
the  permission  so  given  shall  be  held  to  terminate  at  such  date  as  the  President  may 
determine.  To  insure  the  continuance  of  this  work  during  such  time  as  may  be 
desirable,  the  President  may  have  the  power  of  substitution  in  case  of  the  termination 
of  the  detail  of  an  officer  for  any  cause."  Held:  that  if  it  is  desired  that  this  officer 
perform,  in  addition,  the  duties  of  naval  attache1,  special  legislation  is  necessary, 
and  this  fact  should  appear  in  the  contract  with  the  Brazilian  Government.  File 
28508-9,  J.  A.  G.,  Jan.  18,  1915. 

2.  Foreign  languages — Student  officers.    See  NAVAL  ATTACHES,  6. 

3.  Leave  of  absence-^Officer  granted  leave  of  absence  to  assist  the  Republic  of  Brazil 

as  an  instructor  in  the  Naval  War  College,  should  not  be  detailed  to  active  duty  as 
naval  attache1  without  special  legislation,  etc.  See  NAVAL  ATTACHES,  1. 

4.  Newspapers— The  department  desires  that  all  newspapers  and  periodicals,  both  Ameri- 

can and  foreign,  for  the  Naval  Establishment,  for  use  on  shore,  both  in  and  outside 
the  continental  limits  of  the  United  States,  except  such  as  may  be  purchased  by  naval 
attaches,  shall  be  purchased  after  advertisement  in  the  public  press.  Circular,  Oct. 
6,  1914,  File  12809-83. 

5.  Official  correspondence— Owing  to  confusion  resulting  in  some  instances  from  mem- 

bers and  attaches  of  the  embassies  and  legations  in  Washington  communicating 
directly  with  the  heads  or  individual  officers  of  the  executive  departments,  the  Depart- 
ment of  State  circulated  a  letter,  dated  November  18, 1915.  reading  in  part  as  follows: 
"Correspondence  with  a  foreign  Government  or  its  diplomatic  representatives  in 
Washington  should  be  carried  on  entirely  through  the  Department  or  State,  which  is 
intrusted  with  the  conduct  of  the  foreign  affairs  of  the  Government."  This  practice 
has  long  obtained  in  this  country  and  is  in  consonance  with  diplomatic  practice 
abroad. 

6.  Status  ol — An  officer  of  the  naval  sen-ice  having  been  detailed  as  an  attache"  to  study 

foreign  languages  and  having  received  orders  to  report  to  the  American  Minister  and 
the  senior  naval  attache1,  obtained  leave  of  absence  by  authority  of  the  American 
Minister  and  the  commander  in  chief  but  without  the  knowledge  or  consent  of  the 
senior  naval  attache".  The  orders  of  this  attache"  specifically  placed  him  under  the 
orders  of  the  naval  attach^,  so  far  as  his  duties  as  a  student  officer  were  concened. 
The  department  censured  this  officer,  stating,  "In  future  you  will  regard  the  naval 


NAVAL    ATTACHES.  399 

attache*  to  the  legation  at  *  *  *  as  your  superior  officer  and  will  not  leave  your 
station  for  any  purpose  without  his  specific  consent."  Department's  letter,  March 
2,  1911. 

NAVAL,  AUXILIARY  SERVICE. 

1.  Hospital  Fund.    See  HOSPITAL  FUND,  6. 

2.  Line    of  duty  and  misconduct.     See  LINE  or  DUTY  AND    MISCONDUCT  CON- 

STRUED, 26. 

3.  Naval  hospital— Treatment  in.    File  152-97,  Sec.  Navy,  May  11, 1908. 

NAVAL  CADET. 

1.  General  court-martial— Tried  by.    C.  M.  O.  98, 1894,  2;  36, 1898,  2;  89, 1899. 

NAVAL  CONTRACTOR. 

I.  Tried  by  naval  general  court-martial— Found  guilty  and  sentenced.    G.  O.  56,  May 

30,  1865. 

NAVAL  EXAMINING  BOARDS.    See  also  MARINE  EXAMINING  BOARDS;  PROMOTION. 

1.  Action  upon  record.    See  PROMOTION,  5. 

2.  Appointment  of  members — According  to  naval  custom,  the  Secretary  of  the  Navy 

acts  for  the  President  in  appointing  examining  boards.  Such  boards  have  been 
convened  by  the  commander  in  chief,  the  record  oeing  acted  upon  by  the  President. 
File  8291-98,  Nov.  29, 1898.  See  also  NAVAL  EXAMINING  BOARDS,  4. 

3.  Candidate  as  a  witness— See  NAVAL  EXAMINING  BOARDS,  26. 

4.  Commander  In  chief — May  not  make  changes  in  the  constitution  of  a  naval  examin- 

ing board — Section  1496  of  the  Revised  Statutes  provides  that  "no  line  officer  below 
the  grade  of  commodore,  and  no  officer  not  of  the  line,  shall  be  promoted  to  a  higher 
grade  on  the  active  list  of  the  Navy  until  his  mental,  moral,  and  professional  fitness 
to  perform  all  his  duties  at  sea  have  been  established  to  the  satisfaction  of  a  board  of 
examining  9fficers  appointed  by  the  President."  The  civil  courts  having  held  in 
various  decisions  that  the  act  of  the  Secretary  of  the  Navy  in  a  matter  under  his 
jurisdiction  is  in  legal  contemplation  the  act  of  the  President  (see  Weller  v.  U.  S., 
41  Ct.  Cls.  324,  and  cases  there  cited)  it  is  the  prerogative  of  the  Secretary  of  the  Navy 
to  sign  precepts  convening  examining  boards.  In  view  of  the  above  the  department 
held  that  the  commander  in  chief  of  a  fleet  has  no  authority,  nor  can  he  legally  be 
granted  authority  by  the  department,  to  make  changes  in  the  constitution  of  naval 
examining  boards  and  boards  of  medical  examiners.  File  28026-1086:2,  Sec.  Navy, 
Aug.  4, 1915;  C.  M.  O.  29, 1915,  6-7.  See  also  File  28027-154:  3,  Sec.  Navy,  Dec.  26, 
1916,  where  such  a  change  was  ratified. 

5.  Constitution  of — Boards  for  the  professional  examination  of  officers  of  the  Navy  for 

promotion  shall  consist  of  "not  less  than  three  officers,  senior  in  rank  to  the  officer  to 
be  examined,"  and  they  shall,  when  practicable,  be  selected  from  the  same  corps  to 
which  the  candidate  belongs.  (R.  S.  1498.)  File  26260-1244,  J.  A.  G.,  April  14,  1911; 
15  J.  A.  G.,  287,  May  31, 1911,  p.  2. 

6.  Constitutionality  of.    See  CONSTITUTIONAL  LAW,  4. 

7.  Courts-martial— Considered  by.    See  NAVAL  EXAMINING  BOARDS,  15;  PROMOTION, 

38^8. 

8.  Same— An  examining  board  is  in  no  sense  a  court  before  which  the  candidate  is  on 

trial  for  his  misdeeds.  The  punishment  for  such  misdeeds  is  provided  for  by  other 
statutes  and  is  not  a  question  to  be  considered  by  an  examining  board;  but  the  bear- 
ing, if  any,  which  such  misconduct  may  have  upon  the  officer's  fitness  for  promotion 
is  a  question  before  the  board  and  must  be  determined  by  it  wholly  independent  of 
any  disciplinary  proceedings  to  which  the  officer  has  rendered  himself  liable.  File 
26260-1392,  J.  A.  G.,  June  29, 1911,  pp.  23,  30.  See  also  PROMOTION.  38-48. 

9.  Disagreement  as  to  findings — Case  of  disagreement  in  findings  of  examining  board 

adjusted  by  the  Judge  Advocate  General.    Memo.  J.  A.  G.,  No.  1,  p.  7. 
10.  "Due  process  of  law" — Application  of  the  constitutional  provision  relating  to  "due 
process  of  law"  to  naval  promotion.    File  26260-1392,  June  29, 1911,  p.  31.    See  also 
PROMOTION,  64. 

II.  Duty  of  with  reference  to  officers'  service  records— It  is  the  department's  desire 

that  examining  boards  examine  the  records  of  officers  quite  as  critically  as  it  does 
their  examination  papers,  bearing  in  mind  the  fact  that  it  is  the  candidate's  duty  to 
establish  his  professional  fitness  rather  than  the  duty  of  the  board  to  establish  his 
unfitness.  The  department  desires  the  boards  to  adopt  a  high  standard  not  only  in 
regard  to  the  written  examination,  but  particularly  in  regard  to  recommending  for 

50756°— 17 26 


400  NAVAL  EXAMINING  BOARDS. 

promotion  officers  whose  service  records  indicate  that  they  are  in  any  respect  lacking 
in  officer-like  qualities.  When  an  officer's  record  shows  that  he  is  addicted  to  loose 
and  careless  methods,  that  he  is  inattentive  to  duty,  or  that  his  general  performance 
of  duty  is  merely  passable,  he  should  not  be  recommended  for  promotion.  The 
department  feels  that  the  examining  boards  will  appreciate  the  merit  of  the  policy 
expressed  herein  and  realize  the  importance  of  maintaining  a  high  standard  of  effi- 
ciency by  assigning  great  weight  to  the  service  records  of  candidates  for  promotion 
and  will  in  no  instance  whatever  recommend  for  promotion  any  officer  whose  zeal  and 
efficiency  are  in  any  degree  doubtful.  File  26260-3525: 1,  Sec.  Navy,  July  15, 1916. 

12.  Evidence— Record  of  a  naval  examining  board  as  evidence  in  a  general  court-martial 

trial.    SeeG.C.JA.  Rec.  28681,  p.  52. 

13.  Finding  of— The  law  prescribes  the  phraseology  to  be  used  when  an  examining  board 

finds  the  officer  in  all  respects  qualified  for  promotion.  But  there  is  no  set  language 
to  be  used  when  the  officer  is  not  in  all  respects  qualified  for  promotion. 

A  recommendation  by  the  board,  expressed  in  its  finding,  that  the  candidate  be 
given  a  reexamination  at  such  and  such  a  time  has  no  bearing  upon  the  case  if  it  is 
not  the  department's  policy  to  grant  a  reexamination  when  an  officer  fails  to  qualify 
on  the  first  examination.  File  26260-396e,  J.  A.  G.,  Feb.  24, 1910,  p.  14. 

14.  Same — Disagreement  as  to.    See  NAVAL  EXAMINING  BOARDS,  9. 

15.  Function  and  authority  of— A  naval  examining  board  has  authority  and  exercises 

functions  as  extensive  in  their  nature  as  those  exercised  by  naval  courts-martial 
themselves,  and  in  its  consideration  of  an  officer's  qualifications  for  promotion  it  de- 
termines for  itself  all  questions  arising,  independently  of  any  disciplinary  action 
that  may  or  could  have  been  taken  in  the  premises.  File  26260-697,  1392,  J.  A.  G., 
June  29, 1911,  p.  15.  See  also  File  5878-97;  Davis  t;.  U .  S.,  24  Ct.  Cls..  442. 

A  naval  examining  board  in  a  recent  case  found,  in  effect,  that,  "no  matter  what 
its  [the  board's]  personal  feelings  may  be,"  a  certain  candidate  was  morally  qualified 
for  promotion  because  the  members  of  a  court-martial  had  acquitted  him  of  serious 
offenses  with  which  he  had  been  charged,  and  the  board  "has  not  the  power  to  ques- 
tion the  findings  of  said  court." 

The  finding  of  the  naval  examining  board  in  this  case  was  not  satisfactory  and  was 
not  accepted  by  the  department  for  the  reason  that  it  withheld  the  very  opinion 
which  the  board  was  ordered  to  express— that  of  the  board  itself— and  relied  instead 
upon  the  finding  of  a  general  court-martial,  which  finding  in  point  of  fact  was  dis- 
approved by  the  convening  authority.  It  is  well  settled  that  the  fact  that  a  case  has 
been  acted  upon,  or  that  no  action  has  been  taken  in  certain  premises,  does  not  close 
that  portion  of  an  officer's  record  to  which  it  relates  in  such  a  manner  as  to  relieve  an 


spress  prpvisn 

to  determine  for  itself  the  effect,  if  any,  that  should  be  given  thereto  with  reference 
to  the  officer's  qualifications  for  promotion.    (File  5878-97;  26260-697;  26260-1392.) 

Moreover  the  finding  of  a  court-martial,  even  if  approved,  would  not  be  conclusive 
upon  an  examining  board  for  the  reason  that  a  court-martial  can  not  properly  arrive 
at  a  finding  of  "  guilty  "  unless  the  evidence  establishes  the  guilt  of  the  accused  oeyond 
a  reasonable  doubt;  while,  on  the  other  hand,  members  of  an  examining  board  are 
not  required  to  be  satisfied  beyond  a  reasonable  doubt  that  a  candidate  is  not  qualified 
for  promotion,  but  instead  are  forbidden  to  recommend  any  officer  for  promotion  "as 
to  whose  fitness  a  doubt  exists."  In  other  words,  before  a  court-martial  every  doubt 
must  be  resolved  in  favor  of  an  accused,  while  before  an  examining  board  any  doubts 
must  be  resolved  against  the  condidate,  and  the  existence  of  even  a  doubt  as  to  his 
fitness  requires  that  he  be  not  recommended  for  promotion.  File  26260-3342:1,  Sec. 
Navy,  Apr.  7, 1916;  C.  M.  O.  13,  1916,  6-7. 

16.  Questions  and  answers — The  record  of  a  Naval  Examining  Board  must  show  the 

questions  propounded  to  the  candidate,  and  his  answers  thereto.    Department's 
letter  of  March  6,  1883. 

17.  Rank  of  members  of  board— The  law  is  mandatory  in  its  terms,  requiring  that  all 

the  members  of  a  naval  examining  board  must  be  senior  to  the  officer  under  examina- 
tion before  them.    File  26260-1244,  J.  A.  G.,  April  14, 1911,  p.  4. 

The  record  of  proceedings  of  a  naval  examining  board  were  disapproved  as 
fatally  defective  in  that  one  of  the  members  was  junior  to  the  candidate.  File  26260- 
1244;  J.  A.  G.,  April  14,  1911. 

18.  Reconvening  on  own  Initiative— In  a  case  where  an  examining  board  found  a  candi- 

date for  appointment  as  assistant  surgeon  in  the  Navy  mentally,  morally  and 


NAVAL  EXAMINING  BOARDS.  401 

professionally  qualified,  recommended  him  for  appointment,  the  finding  being  signed 
by  all  the  members  and  the  recorder,  but  reconvenjd  two  days  later  on  its  own 
initiative,  and  decided  to  change  its  findings  and  recommendations,  the  Judge  Ad- 
vocate General  was  of  the  opinion  that  the  subsequent  proceedings  of  the  Naval 
Examining  Board  not  having  been  autlwrized  or  directed  ny  proper  authority,  was 
without  legal  effect,  and  it  was  advised,  in.yiew  of  all  the  circumstances  of  the  case, 
that  the  record  of  proceedings  of  the  board  in  the  case  be  disapproved,  and  that  the 
candidate  be  permitted  to  appear  before  another  naval  examining  board.  File 
26258-302,  J.  A.  G.,  May  29,  1912. 

19.  Record.    See  NAVAL  EXAMINING  BOARDS,  13,  25. 

20.  Scope  of— The  act  of  June  18, 1878  (20  Stat.  165),  in  explicit  language  prohibits  inquiry 

into  any  fact  which  occurred  prior  to  the  last  examination  whereby  the  candidate 
was  promoted,  which  has  already  been  inquired  into  and  decided  upon,  and  specif- 
ically provides  that  "such  previous  examination,  if  approved,  shall  be  conclusive." 
Only  one  exception  to  this  mandatory  rule  is  contained  in  the  statute,  and  that  is, 
"where  the  fact  continuing  shows  the  unfitness  of  the  officer  to  perform  all  his  dutfes 
at  sea."  File  26260-874,  J.  A.  G.,  June  3,  1910,  p.  4;  26521-173:1,  J.  A.  G.,  Jan.,  1917. 

21.  Secretary  of  the  Navy— Signs  precepts  of  Naval  Examining  Boards.    See  NAVAL  EX- 

AMINING BOARDS,  4. 

22.  Selection — First  precept  convening  a  "Board  to  Recommend  Officers  for  Selection." 

File  28026-1484,  Sec.  Navy,  Nov.  13, 1916.    See  also  PROMOTION  BY  SELECTION. 

23.  Statement  by  candidate — May  be  under  oath — Section  1500,  R.  S.,  gives  the  candi- 

date the  right  to  be  present  when  his  case  is  considered  and  to  submit  a  statement 
of  his  case  under  oath,  but  Held,  right  to  have  a  statement  sworn  to  might  be  waived. 
The  right  being  statutory,  knowledge  of  it  must  be  presumed  on  the  part  of  the  can- 
didate and  he  can  not  claim  ignorance  of  the  statutory  right  as  an  excuse  for  not 
exercising  it.  File  26260-1360,  Feb.  12,  1912.  See  also  File  20260-1678,  Feb.  28,  1912. 

24.  Surgeon  General — Composition  of— It  was  held  that  the  examination  of  a  surgeon 

general  of  the  Navy,  whose  actual  rank  was  that  of  surgeon,  should,  under  sections 
1496  and  1498,  R.  S.,  beconducted  by  a  Naval  Examining  Board  composed  of  officers, 
if  practicable,  of  the  Medical  Corps  of  the  Navy  who  were  senior  to  the  candidate  in 
the  actual  rank  held  by  him  in  said  corps.  15  J.  A.  G.,  286,  May  31,  1911. 

25.  Witness— The  unrecorded  presence  of  a  witness  before  an  examining  board  would 

constitute  a  serious  irregularity.    File  26260-1360,  Feb.  12,  1912. 

26.  Same— Candidate  as — When  a  candidate  before  examining  or  retiring  boards  submits 

a  sworn  statement  he  does  not  thereby  become  a  witness  and  subject  to  examination 
as  a  witness.  This,  however,  does  not  preclude  the  candidate  from  being  called  as 
a  witness  by  the  boards,  and  should  he  be  so  called  it  is  proper  that  he  be  interrogated 
fully  as  to  all  matters  pertaining  to  the  subject  matter  of  the  examination.  File 
26521-123,  Sec.  Navy,  Aug.  13,  1915;  C.  M.  O.  29,  1915,  6. 

NAVAL  HOME. 

1.  Admission  to — Forfeiture  of  retired  pay — The  Secretary  of  the  Navy  may  not  require 

that,  upon  being  admitted  to  the  benefits  of  the  Naval  Home  at  Philadelphia,  Pa., 
a  retired  sailmaker  must  forfeit  his  retired  pay.  Suitable  mode  of  procedure  sug- 
gested. The  Naval  Home  is  supported  from  the  naval  pension  fund.  File  5362-35, 
J.  A.  G.,  June  29, 1911. 

2.  Bureau  of  Navigation— Under  supervision  and  direction  of.    See  NAVAL  HOME,  4. 

3.  Inmates-yCost  of  maintenance  per  annum — The  gross  cost  of  maintenance  of  each 

beneficiary  in  the  Naval  Home  is  stated  to  be  about  $656,  and  the  net  cost,  that  is, 
with  pensions  deducted,  as  $495.  File  5362-35,  J.  A.  G.,  June  29, 1911.  p.  5. 

4.  Naval  Station,  is  a— The  United  States  Naval  Home,  and  the  naval  hospital  within 

its  grounds,_  for  all  purposes,  administrative,  legal  and  disciplinary,  is  a  naval  sta- 
tion, of  which  the  governor  is  commandant. 

The  object  of  the  Naval  Home  is  to  provide  an  honorable  and  comfortable  home, 
during  their  life,  for  old,  disabled,  and  decrepit  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps,  who  may  be  entitled  under  the  law  to  the  benefits  of  the  institu- 
tion, and  who  snail  be  known  as  beneficiaries. 

It  is  under  the  supervision  and  direction  of  the  Bureau  of  Navigation,  subject  to 
the  control  of  the  Secretary  of  the  Navy  and  the  laws  of  Congress  which  may  be 
passed  from  time  to  time.  (Regulations,  Origin,  History  and  Laws  of  the  United 
States  Naval  Home,  Philadelphia,  Pa.,  1916,  p.  5.) 

5.  Status  of.    See  File  26250-776:1. 


402  NAVAL    MILITIA. 

NAVAL  HOSPITALS.    See  HOSPITALS. 

NAVAL  HOSPITAL  FUND.    See  HOSPITAL  FUND. 

NAVAL  INSTRUCTIONS,  1913, 1-4893.  See  GENERAL  ORDER  No.  110,  July  27, 1914;  C.  M. 
O.36, 1914, 5;  42. 1914,  5;  53, 1914, 6-7;  6, 1915, 15;  12, 1915, 6, 12;  20, 1915, 5;  22, 1915,  5; 
31,1915,13,14;  35,1915,10;  49,1915,25;  File  26237-251:69;  2680&-131:29;  26254-1834:1; 
26254-2029;  2o806-131:28;  27210-302;  26806-131:44;  26806-131:42;  165  S.  and  A.  Memo. 
3424;  172  S.  and  A.  Memo.  3687;  177  8.  and  A.  Memo.  3833;  Comp.  Dec.,  June  13, 
1916,  App.  No.  25964,  File  26254-2039;  Naval  Instructions,  1913, 1-4893  (revised). 

NAVAL  INTELLIGENCE,  OFFICE  OF.   See  OFFICE  OF  NAVAL  INTELLIGENCE. 

NAVAL  MILITIA. 

1.  Aviation  branch—  Held,  that  a  proposed  general  order  limiting  membership  in  the 

aviation  branch  of  the  Naval  Militia  only  to  "citizens  of  the  United  States1'  would 
not  be  legal  in  view  of  the  law  (act  Jan.  21, 1903,  32  Stat.  775;  act  May  27, 1908. 35  Stat. 
399;  act  Feb.  16, 1914, 38  Stat.  283;  G.  O.  No.  77)  which  provides  that  the  militia  shall 
consist  of  "  every  able-bodied  male  of  foreign  birth  and  who  has  declared  his  intention 
to  become  a  citizen,  who  is  more  than  18  and  less  than  45  years  of  age"  in  addition 
to  citizens  of  the  various  States,  Territories,  etc.,  and  that  the  Naval  Militia  shall 
consist  of  such  part  of  the  Organized  Militia  as  may  be  duly  prescribed  in  each  State, 
Territory  and  the  District  of  Columbia.  File  3973-129,  J.  A.  G.,  Dec.  18, 1915;  C.  M.  O. 
49,  1915,  26. 

2.  Citizenship.    See  NAVAL  MILITIA,  1. 

3.  Collision — Occurring  with  vessel  which  has  been  turned  over  to  Ohio  Naval  Militia. 

See  COLLISION,  14. 

4.  Constitution  of— The  duty  of  duly  prescribing  who  shall  constitute  the  Naval  Militia 

of  any  State  devolves  upon  the  State  and  not  upon  the  Secretary  of  the  Navy.  File 
3793-139,  J.  A.  G.,  March  15,  1916. 

5.  Construction  of  act,  February  16,  1914  (38  Stat.  883,  284,  286-887,  289). 

File  26256-35:17.    See  also  NAVAL  MILITIA,  1,  34. 

6.  Death— Of  member  of  Naval  Militia  while  on  a  naval  vessel.    See  NAVAL  MILITIA,  27. 

7.  Deck  courts— Officers  of  the  Regular  Navy  who  are  detailed  for  duty  with  the  Naval 

Militia  as  inspector-instructors  may  not  act  as  deck  court  officers  for  the  trial  of 
enlisted  men  of  Regular  Navy  on  duty  with  the  Naval  Militia.  File  3973-107:  2. 
J.  A.  G.,  Aug.  21, 1915. 

8.  District  of  Columbia — Promotion  of  officer — Where  the  recommended  promotion  of  a 

lieutenant  (junior  grade)  in  the  Naval  Battalion,  National  Guard  of  the  District 
of  Columbia,  was  protested  by  a  former  lieutenant  (junior  grade)  in  said  battalion, 
on  the  ground  that  the  latter  had  been  illegally  discharged  and  was  entitled  to  the 
promotion  as  being  the  senior  lieutenant  (junior  grade)  in  said  battalion:  Held,  that 
the  discharge  in  this  case  was  legal;  and  it  appearing  that  the  officer [nominated  for 
promotion  was  therefore  the  senior  lieutenant  (junior  grade)  actually  in  service  there 
exists  no  le^al  objection  to  his  promotion  to  fill  a  vacancy  in  the  grade  of  lieutenant 
(junior  grade)  in  said  battalion,  provided  he  had  duly  qualified  therefor.  In  this 
aspect  of  the  matter,  it  was  not  necessary  to  decide  whether  promotions  in  said  Naval 
Battalion  were  required  to  be  made  by  seniority.  File  7984-30.  Sec.  Navy,  Feb.  20, 
1915;  C.  M.  0. 10, 1915,  10.  See  C.  M.  0. 10, 1915, 10  for  consolidation  of  divisions. 

9.  Same—  Legality  of  orders — An  order  of  the  commanding  officer  of  the  Naval  Battalion, 

District  of  Columbia  National  Guard,  relieving  an  ensign  from  duty  with  the  Fourth 
Division  and  ordering  him  to  duly  with  the  Second  Division,  is  sufficient  authority 
for  the  transfer  and  the  said  ensign  became  a  member  of  the  Second  Division,  even 
though  such  orders  did  not  on  their  face  show  that  they  were  approved  by  the  Com- 
manding General,  National  Guard,  District  of  Columbia,  as  required  by  the  Regu- 
lations for  the  National  Guard  of  the  District  of  Columbia.  The  order  in  question 
was  in  legal  contemplation  approved  by  the  Commanding  General,  for,  in  absence 
of  evidence  to  the  contrary,  such  approval  is  presumed.  Copy  of  said  order  was  filed 
at  headquarters.  The  Commanding  General  thereafter  recognized  said  order  as  valid 
by  directing  the  discharge  of  this  officer  as  supernumerary  thus  treating  him  as  be- 
longing to  the  Second  Division.  The  Commanding  General  never  objected  to  said 
order  and  its  validity  was  never  questioned  until  more  than  a  year  after  its  issue, 
and  then  only  because  of  the  discharge  of  the  aforesaid  officer  "as  supernumerary. 
File  7984-30,  Sec.  Navy,  Feb.  20, 1915;  C.  M.  0. 10, 1915, 10-11. 


NAVAL   MILITIA.  403 

10.  Same — Discharge  of  supernumerary  officers — The  approval  of  the  President  is  no  t 

necessary  for  the  honorable  discharge  of  officers  of  the  Naval  Battalion,  District  of 
Columbia  National  Guard,  who  are  rendered  supernumerary  in  consequence  of  the 
consolidation  of  divisions.  File  7984-30,  Sec.  Navy,  Feb.  20, 1915;  C.  M.  O. 10, 1915, 10. 

11.  Enlistment  In  Naval  Militia— Effect  of  enlisting  in  the  Naval  Militia  of  a  person  who 

is  in  receipt  of  a  pension.    File  3973-144,  J.  A.  G.,  March  29,  1916. 

12.  Examination— Scope  of  examination  for  officers  and  enlisted  men  of  the  Naval  Militia 

for  aeronautic  duty.    File  3973-129,  J.  A.  G.,  Dec.  18,  1915. 

Recommended  that  records  of  examinations  for  promotions,  etc.,  pass  through 
Office  of  Judge  Advocate  General.  File  28026-1399:1,  J.  A.  G.,  July  17,  1916. 

13.  General  Order  No.  77,  February  25,  1914  (38  Stat.  883)— This  general  order  is 

merely  a  publication  of  the  act  of  February  16,  1914,  "to  promote  the  efficiency  of 
the  Naval  Militia,  and  for  other  purposes."  C.  M.  O.  49, 1915, 16. 

14.  General  Order  No.  15O,  June  14, 1915.    See  NAVAL  MILITIA,  21,  29. 

15.  Jurisdiction— Subject  to  jurisdiction  of  naval  courts-martial  when  employed  in  the 

service  of  the  United  States  in  time  of  war  or  public  danger  (file  3973-107,  Feb. 
16,  1915),  or  for  refusing  to  obey  the  President's  order  calling  them  into  the  service 
of  the  United  States.  (Martin  v.  Mott,  12  Wheat.  19;  Houston  v.  Moore,  5  Wheat.  1; 
Act  Feb.  16,  1914,  sec.  5  (38  Stat.  285).) 

16.  Same — General  court-martial  of  the  Regular  Navy  has  jurisdiction  to  try  an  enlisted 

man  of  the  Regular  Navy  serving  on  board  a  naval  vessel  loaned  to  the  Naval  Militia. 
See  NAVAL  MILITIA,  39. 

17.  Same— Naval  Militia  serving  on  board  a  vessel  of  Navy.    See  NAVAL  MILITIA,  36,  37. 

18.  Loan  of  vessels— By  Regular  Navy  to  Naval  Militia.    See  COLLISION,  14;  NAVAL 

MILITIA,  39-41. 

19.  Marine  divisions— The  Naval  Militia  act  of  February  16,  1914  (38  Stat.  283),  applies 

to  marine  divisions  that  existed  as  a  part  of  the  Organized  Militia  of  certain  States 
at  the  time  of  the  passage  of  the  act,  which  divisions  still  exist. 

The  Naval  Militia  act  of  February  16,  1914  (38  Stat.  283),  applies  also  to  marine 
divisions  of  the  Naval  Militia  of  certain  States,  Territories,  and  the  District  of  Colum- 
bia, that  may  hereafter  be  organized  as  parts  of  the  Naval  Militia  in  such  States, 
Territories,  and  the  District  of  Columbia.  File  3973-98,  Sec.  Navy,  Jan.  12,  1915; 
C.  M.  O.  6,  1915,  14. 

20.  Marine  league— Use  of  the  Naval  Militia  outside  of  the  three-mile  limit.    File  3973- 

136:2,  J.  A.  G.,  Feb..  1916. 

2 1 .  Oatbs — The  Naval  Militia  should  adhere  strictly  to  the  form  of  oath  provided  in  General 

Order  No.  150,  June  14, 1915.  If  each  State  were  permitted  to  change  the  oath  pre- 
scribed, in  various  ways  which  it  might  think  still  met  the  requirements,  uniformity 
would  at  once  be  gone  and  there  would  be  irreconcilable  chaos.  File  3973-109:  4,  Sec. 
Navy,  Aug.  31,  1915;  C.  M.  O.  29,  1915,  8. 

22.  Officer— Summoned  as  a  witness  before  a  general  court-martial  of  the  Regular  Navy. 

See  NAVAL  MILITIA,  45,  46. 

23.  Ohio — Naval  vessel  loaned  to.    See  COLLISION,  14;  NAVAL  MILITIA,  3. 

24.  Pay — Of  retired  naval  officer  while  holding  a  commission  in  the  Naval  Militia.    See 

PAY,  94. 

25.  Same— For  joint  service  or  maneuvers  with  the  Regular  Navy.    (Compt.  Dec..  June  20, 

1914.)    File  3973-64:2. 

26.  Penalty  envelopes— Use  of  by  Naval  Militia.    See  File  3973-127:2-,  Sec.  Navy,  Feb.  11, 

1916;  3973-127:3,  J.  A.  G.,  Feb.  19,  1916. 

27.  Pensions — The  question  as  to  whether  the  dependents  of  a  member  of  the  Naval 

Militia,  who  dies  while  participating  in  a  cruise  on  board  a  United  States  war  vessel, 
is  entitled  to  a  pension  should  be  answered  by  the  Commissioner  of  Pensions,  under 
whose  jurisdiction  lies  the  authority  for  granting  pensions  to  claimants,  and  not  by  the 
Secretary  of  the  Navy.  File  26250-709:1,  J.  A.  G;  C.  M.  O.  49,  1915,  26. 

28.  Same — Effect  of  enlisting  in  the  Naval  Militia  of  a  person  who  is  in  receipt  of  a  pension. 

See  NAVAL  MILITIA,  11;  PENSIONS,  2. 

29.  Physical  examinations— General  Order  No.  150,  June  14,  1915,  paragraph  2  (b),  pro- 

vides: "  Every  officer  now  in  the  Naval  Militia,  and  every  candidate  for  appointment 
as  a  commissioned  or  warrant  officer  in  the  Naval  Militia,  must  pass  the  physical 
examination  prescribed  for  officers  in  this  order,"  notwithstanding  the  fact  that  such 
officers  or  candidates  have  been  previously  examined  by  a  board  of  officers  of  the 
Regular  Navy,  including  naval  medical  officers.  File  27405-8,  J.  A.  G.,  Oct.  4,  1915; 
C.  M.  O.  35, 1915, 10. 


404  NAVAL   MILITIA. 

30.  Private  business— Naval  Militia  officer  made  use  of  the  services  of  a  yeoman,  2d  class, 

of  the  Regular  Navy  for  certain  duties  in  connection  with  private  business,  instead 
of  requiring  him  to  atten;,  strictly  to  his  duties  in  connection  with  the  Naval  Militia. 
File  26251-11340:6,  Sec.  Navy,  Jan.  13, 1910. 

31.  Repairs  to  vessels— Procedure  of  requests  for  and  executing  repairs  to  Naval  Militia 

vessels.    File  3973-126,  J.  A.  G.,  Mar.  31, 1916. 

32.  Retired  officers  of  the  Regular  Navy— Employment  of  in  Naval  Militia.    See 

RETIRED  OFFICERS,  54-58. 

33.  Secretary  of  the  Navy— Has  not  the  duty  of  prescribing  who  shall  constitute  the 

Naval  Militia  of  any  State.    See  NAVAL  MILITIA  ,  4. 

34.  Shlpkcepers— The  number  of  enlisted  men  detailed  for  duty  as  shipkeepers  on  vessels 

loaned  to  the  Naval  Militia  under  the  provisions  of  section  2  of  the  Naval  Militia  act 
of  February  16, 1914  (38  Stat.  283;  G.  O.  No.  77),  are  in  addition  to  the  number  allowed 
by  law  for  the  Regular  Naval  Establishment.  The  enlistment  of  such  additional  num- 
ber of  men,  even  if  in  excess  of  appropriations,  Is  not  prohibited  by  sections  3679  and 
3732  of  the  Revised  Statutes,  as  amended.  Men  detailed  for  duty  with  Naval  Militia 
under  section  17  of  the  Naval  Militia  act  are  included  in  the  number  allowed  by  law 
for  the  Regular  Naval  Establishment.  File  3973-106,  J.  A.  G.,  Feb.  8,  1915.  See  also 
File  26255^358:14;  C.  M.  0. 10, 1915, 11;  NAVAL  MILITIA,  39-41;  File  3973-20,  J.  A.  G.,  Oct. 
23, 1909,  for  discussion  of  "shipkeepers  "  in  1909;  File  26835-542,  J.  A.  G.,  Mar.  15, 1915, 
6th  ind.,  for  proper  scope  of  their  employment. 

35.  Status  of  Naval  Militia  while  cruising  on  board  a  vessel  of  the  Regular  Navy- 

Naval  Militia  officers  can  not  impose  punishments  on  men  belonging  to  their  organiza- 
tions while  cruising  on  board  a  vessel  of  the  Regular  Navy,  nor  can  Naval  Militia 
officers  convene  State  courts-martial  on  such  vessels.  File  3973-107,  J.  A.  G.,  Feb. 
16, 1915;  C.  M.  O.  10,  1915, 11-12. 

36.  Status  of  Naval  Militia  cruising  with  Regular  Navy  for  training  and  Instruc- 

tion—Naval Militia  officers  cruising  with  the  Regular  Navy  for  training  and  instruc- 
tion are  authorized  by  law  to  perform  duty  and  to  exercise  authority  over  the  naval 
personnel  of  inferior  rank,  but  can  not  impose  punishments  upon  persons  in  the  naval 
service.  File  3973-107,  J.  A.  G.,  Feb.  16, 1915;  C.  M.  0. 10, 1915, 11-12. 

37.  Same— Members  of  the  Naval  Militia,  participating  with  the  Regular  Navy  incrulses 

for  the  purpose  of  training  and  instruction,  are  not  employed  in  the  service  of  the 
United  States,  but  remain  civilians  and  consequently  are  not  subject  to  punish- 
ment under  the  Articles  for  the  Government  of  the  Navy.  The  naval  officer  of  the 
Regular  Navy  in  command  has,  however,  full  authority  to  enforce  any  orders  which 
affect  the  discipline,  safety,  and  well-being  of  the  vessel  or  any  part  of  the  armament, 
equipment,  or  crew,  and  to  this  end  may,  if  necessary,  place  members  of  the  Naval 
Militia  in  confinement  or  remove  them  from  the  vessel  under  lawful  regulations 
issued  by  the  Navy  Department,  not  as  punishment,  but  merely  to  maintain  discipline. 
File  3973-107,  J.  A  G..  Feb.  16, 1915;  C.  M.  O.  10,  1915, 11-12. 

38.  Status  in  relation  to  the  Regular  Navy  while  on  board  naval  vessels  for  training 

or  on  vessels  loaned  to  States— A  naval  commanding  officer  has  supreme  authority 
over  all  persons  on  board  his  ship,  including  members  of  mil  itia  organizations.  While 
he  can  not  try  the  latter  by  court-martial  or  impose  ^punishments  upon  them  under 
article  24,  A.  G.  N.,  he  may,  if  necessary,  place  them  in  confinement,  or  remove  them 
from  the  vessel,  when  circumstances  demand,  under  lawful  regulations  to  be  adopted 
by  the  department.  It  should,  however,  be  distinctly  understood  that  such  action 
is  not  authorized  as  punishment,  but  only  in  so  far  as  is  necessary  to  maintain  the  dis- 
cipline of  the  ship  and  the  supreme  authority  of  the  commanding  officer. 

Militia  officers  assigned  to  duty  by  the  commanding  officer  of  a  naval  vessel,  or 
detailed  to  duty  on  a  vessel  loaned  to  the  Naval  Militia,  have  all  the  authority  over 
persons  of  inferior  rank,  whether  in  the  Regular  Navy  or  in  the  Naval  Militia,  which 
may  be  necessary  for  the  purpose  of  carrying  out  the  duty  upon  which  they  have 
been  detailed;  but  this  does  not  include  the  power  of  punishment. 

Persons  in  the  Regular  Navy  thus  subjected  to  the  authority  of  the  militia  officers 
may,  for  insubordination,  be  punished  by  the  department  in  accordance  with  the 
Articles  for  the  Government  or  the  Navy  for  conduct  to  the  prejudice  of  good  order 
and  discipline. 

Persons  in  the  Naval  Militia  guilty  of  insubordination  and  other  military  offenses 
while  cruising  on  board  a  vesselof  the  Regular  Navy  may,  and  should  be,  punished  by 
the  State  authorities  under  State  laws;  but  such  punishments  can  not  be  imposed  on 
board,  but  must  be  deferred  until  the  offenders  have  been  disembarked.  Until 
disembarked,  the  commanding  officer  of  the  naval  vessel  would  be  authorized  in 


NAVAL  MILITIA.  405 

taking  such  steps  as  might  be  necessary  to  effect  restraint  of  the  offender  and  to  pre- 
vent the  occurrence  of  another  similar  outbreak,  which  is,  of  course,  injurious  to  dis- 
cipline. By  "naval  vessel"  in  this  connection  is  intended  a  vessel  controlled  for  the 
time  being  oy  the  United  States.  In  such  condition  the  State  can  not  exercise  juris- 
diction. 

There  would  seem  to  be  no  objection  to  the  holding  of  a  State  court-martial  on  board 
a  naval  vessel  loaned  to  the  Naval  Militia,  and  for  the  time  being  under  the  control 
of  the  State,  whether  in  reserve  or  as  an  outright  loan.  Also,  punishments  may  be 
imposed  upon  militia  men  serving  on  such  vessels  by  the  commanding  officer  of  the 
Naval  Militia,  when  he  is  on  board,  in  accordance  with  State  laws.  In  these  latter 
cases  the  State  can  exercise  jurisdiction,  as  the  United  States  has  relinquished  it  for 
the  time  being.  File  3973-107,  J.  A.  G.,  Feb.  16,  1915;  C.  M.  O.  10,  1915,  11-12. 
39.  Status  of  an  enlisted  man  of  the  Regular  Navy  serving  on  board  a  vessel  under 
Jurisdiction  of  Naval  Militia— A  fireman  first  class,  U.  S.  Navy,  was  tried  by 
general  court-martial  at  the  navy  yard,  New  York,  by  order  of  the  Secretary  of  the 
Navy,  on  the  following  charges: 
CHABGE  I:  Absence  from  station  and  duty  without  leave. 

Specification.— In  that  *  *  *  a  fireman  first  class  in  the  United  States  Navy, 
did,  at  or  about  seven  hours  postmeridian,  on  or  about  the  twenty-third  day  of  July, 
nineteen  hundred  and  fifteen,  without  leave  from  proper  authority,  absent  himself 
from  his  station  and  duty  on  board  the  United  States  ship  Dorothea,  at  Put-in- Bay. 
Ohio,  to  which  ship  he  had  been  regularly  assigned,  and  did  remain  so  absent  until 
he  surrendered  himself  on  board  the  aforesaid  ship  at  the  aforesaid  place,  at  about 
twelve  hours  and  thirty  minutes  antemeridian,  on  or  about  the  twenty-fourth  day 
of  July,  nineteen  hundred  and  fifteen. 
CHARGE  II:  Leaving  station  before  being  regularly  relieved. 

Specification.— In  that  *  *  *  a  fireman  first  class  in  the  United  States  Navy, 
attached  to  and  serving  on  board  the  United  States  ship  Dorothea,  at  Put-in-Bay, 
Ohio,  did,  at  or  about  seven  hours  postmeridian,  on  or  aoout  the  twenty-third  day 
of  July,  nineteen  hundred  and  fifteen,  while  on  watch  in  charge  of  the  fireroom  of 
said  ship,  absent  himself  from  his  station  before  being  regularly  relieved,  and  did 
remain  so  absent  for  a  period  of  about  five  hours. 

The  court  having  accepted  the  plea  of  the  accused  to  dismiss  the  charges,  and  for- 
warded the  record  to  the  department,  the  Secretary  of  the  Navy  returned  the  record 
with  the  following  letter: 

1.  The  trial  in  this  case  was  ordered  upon  the  charges  of  "Absence  from  station 
and  duty  without  leave,"  and  "Leaving  station  before  being  regularly  relieved.'1 
Page  2  of  the  record  shows  that  at  the  outset  of  the  proceedings  "  the  court  was  cleared. 
When  opened,  all  parties  to  the  trial  entered,  and  the  president  announced  that  the 
court  found  the  charges  and  specifications  in  due  form  and  technically  correct." 
No  preliminary  plea  or  motion  was  made  by  counsel  for  the  accused  based  upon 
the  insufficiency  of  the  specifications  to  support  the  charges,  or  the  lack  of  jurisdiction 
of  the  court.    Nevertheless,  after  the  prosecution  had  rested,  and  without  hearing 
any  evidence  for  the  defense,  the  court  has  decided  upon  motion  of  counsel  for  the 
accused  "that  it  has  no  jurisdiction  to  proceed  with  the  case";  and,  as  stated  in  your 
letter  of  transmittal,  "that  in  accordance  with  the  provisions  of  General  Order  77, 
the  accused  is  only  triable  on  the  charge  of  'Conduct  to  the  prejudice  of  good  order 
and  discipline.' " 

2.  The  department  considers  the  court's  ruling  last  above  mentioned  to  be  errone- 
ous.   General  Order  77  is  merely  a  publication  ofthe  act  of  Congress  approved  Febru- 
ary 16, 1914  [38  Stat.  283],  "  to  promote  the  efficiency  of  the  Naval  Militia,  and  for  other 
purposes."    Section  12  [38  Stat.  286-287]  of  this  act  was  quoted  by  counsel  for  the  ac- 
cused, omitting  the  material  and  pertinent  portion  thereof.    This  section  provides, 
inter  alia,  "that  any  officer  or  petty  officer  or  enlisted  man  of  the  Naval  Militia  placed 
on  duty  as  aforesaid  or  detailed  to  duty  on  a  vessel  assigned  to  the  Naval  Militia  shall 
have,  during  the  time  that  he  is  on  duty,  all  authority  over  all  persons  inferior  to 
himself  in  rank  or  equivalent  rank  necessary  for  the  purpose  of  carrying  out  the  duty 
upon  which  he  has  oeen  so  detailed."    It  is  not  therefore  correct,  as  contended  by 
counsel  for  the  accused,  that  the  court  of  which  you  are  president  "  has  no  jurisdiction 
over  his  [the  accused's]  person,"  because  "the  Ohio  Naval  Militia  was  at  the  time 
of  the  alleged  offenses  of  which  the  accused  is  charged  were  committed  "  not  "  taking 
part  in  any  maneuvers,  field  instruction,  or  encampment  of  the  Kegular  Navy,  which 
was  a  prerequisite  to  the  exercise  of  any  authority  of  the  Naval  Militia  over  any 
members  of  the  naval  service."    On  the  contrary,  under  the  express  language  of 


406  NAVAL   MILITIA. 

the  law.  as  above  quoted  from  General  Order  77,  militia  officers  detailed  on  a  vessel 
assigned  to  the  Naval  Militia  have  the  same  authority  over  enlisted  men  of  the  Regular 
Navy  on  board  that  they  have  when  participating  in  cruises,  etc.,  with  the  Regular 
Navy. — That  is  to  say,  in  either  case  the  militia  officer  has  "all  authority  over  all 
persons  inferior  to  himself  in  rank  or  equivalent  rank  necessary  for  the  purpose  of 
carrying  out  the  duty  upon  which  he  has  been  so  detailed."  Similar  provisions  are 
contained  in  Court-Martial  Order  No.  10, 1915,  pp.  11  and  12.  [See  NAVAL  MILITIA,  38.J 

3.  The  Articles  for  the  Government  of  the  Navy  provide  that  "all  offenses  com- 
mitted by  persons  belonging  to  the  Navy  which  are  not  specified  in  the  foregoing  articles 
shall  be  punished  as  a  court-martial  may  direct."    (A.  G.  N.  22.) 

4.  The  Navy  Regulations  adopted  pursuant  to  this  article  provide  that  "when  the 
offense  is  a  neglect  or  disorder  not  specially  provided  for,  it  shall  be  charged  as  'Scandal- 
ous conduct  tending  to  the  destruction  of  good  morals,'  or  'Conduct  to  the  prejudice 
of  good  order  and  discipline.' "    (Navy  Regulations,  1913,  R-712  (4).) 

5.  When  the  offense  is  a  neglect  or  disorder  specifically  provided  for,  it  is  properly  charge- 
able under  the  specific  charge,  and  not  under  the  general  or  catch-all  clause  (Article  22)  of 
the  Articles  for  the  Government  of  the  Navy.    The  court's  attention  may  be  invited 
to  Court-Martial  Order  No.  4.  1913,  pp.  45,  46,  quoting  an  opinion  of  the  Attorney 
General  [29  Op.  Atty.  Gen.,  563]  holding  that  embezzlement  of  public  funds  by  a  pay 
officer  of  the  Navy,  being  specifically  provided  for  by  the  Articles  for  the  Govern- 
ment of  the  Navy,  is  properly  alleged  under  the  specific  charge  of  "  Embezzlement, 
in  violation  of  article  fourteen  of  the  Articles  for  the  Government  of  the  Navy";  and 
that  "it  could  with  much  reason  be  urged"  that  the  offense  being  thus  specifically 
provided  for,  "is  excluded  by  express  language  from  article  22."    The  Attorney 
General,  however,  stated  in  this  connection  that  he  knew  of  "no  rule  of  practice  which 
prohibits  the  formulation  of  the  same  charge  under  more  than  one  article,  and  as  a 
matter  of  precaution  it  might  be  advisable  to  formulate  the  charges  against  the  ac- 
cused under  both  paragraph  9,  article  14,  and  article  22." 

6.  Thus,  according  to  the  Attorney  General,  where  the  offense  is  specifically  pro- 
vided for,  it  is  properly  alleged  under  the  specific  charge,  but  may  in  addition  be  also 
charged  under  the  catch-all  clause,  article  22  of  the  Articles  for  the  Government  of 
the  Navy,  that  is,  "Conduct  to  the  prejudice  of  good  order  and  discipline,"  or  "  Scandal- 
ous conduct  tending  to  the  destruction  of  good  morals,"  as  may  be  appropriate. 
[See  CHARGES  AND  SPECIFICATIONS,  61-68  for  rule  of  department  regarding  multi- 
plicity or  plurality  of  charges.] 

7.  In  the  present  case,  therefore,  the  offenses  alleged  to  have  been  committed   by 
the  accused  were  properly  chargeable  first,  under  the  specific  charges,  if  any,  appli- 
cable thereto,  and  second,  "under  the  general  or  catch-aft  clause  (Article  22,  A.  G.  N., 
and  R-712  (4))  if  not  specially  provided  for,  or  if  there  were  aggravating  circumstances 
distinguishing  them  from  the  ordinary  case. 

8.  It  is  scarcely  necessary  to  state  that  the  offenses  of  "Absence  from  station  and 
duty  without  leave,"  and  "  Leaving  station  before  being  regularly  relieved,"  arespe- 
ciffcallyprovided  for  by  the  Articles  for  the  Government  of  the  Navy.    (See  A.  G.  N. 
4.  8. )    They  were  therefore,  in  accordance  with  the  department's  policy  and  practice, 
the  opinion  of  the  Attorney  General  and  other  established  authorities,  properly 
charged  under  thesoecific  headings  of "  Absence  from  station  and  duty  without  leave," 
and  "Leaving  station  before  being  regularly  relieved."    Whether  they  might  also 
have  been  charged  as  "Conduct  to  the  prejudice  of  good  order  and  discipline"  in 
accordance  with  the  rule  of  practice  referred  to  by  the  Attorney  General  and  the 
department's  policy,  is  not  necessary  to  decide,  the  fact  being  that  they  were  not  so 
charged,  and  that  there  is  no  rule  of  practice,  regulation  or  statute  requiring  a  multi- 
plicity of  charges  in  any  case. 

9.  In  view  oil  the  arguments  of  counsel  for  the  accused  in  this  case,  and  the  court's 
decision,  as  stated  in  your  letter  transmitting  the  copy  of  proceedings,  it  may  be  re- 
marked that  the  principles  hereinbefore  stated  in  no  manner  conflict  with  Court 


Martial  Order  No.  10,  1915,  p.  12,  which  provides  that  persons  in  the  Regular  Navy 
subjected  to  the  authority  of  militia  officers  "may."  for  "insubordination"  be  pun- 
ished by  the  department  "in  accordance  with  the  Articles  for  the  Government  of  the 


Navy"  for  "Conduct  to  the  prejudice  of  good  order  and  discipline. 

10.  The  Articles  for  the  Government  of  the  Navy  and  the  Navy  Regulations  pro- 
vide for  charging  "Conduct  to  the  prejudice  of  good  order  and  discipline"  when  the 
offense  is  one  not  specifically  provided,  for.  While  a  large  number  of  offenses  which 
are  specifically  provided  for  might  be  included  under  the  general  characterization 
of  "insubordination,"  this  expression,  as  used  in  the  department's  court-martial  order 


NAVAL  MILITIA.  407 

related  to  such  acts  of  insubordination  as  were  not  specifically  provided  for,  and  which 
would  therefore,  under  the  Articles  for  the  Government  of  the  Navy,  be  properly 
chargeable  as  "Conduct  to  the  prejudice  of  good  order  and  discipline."  Thus,  the 
refusal  of  an  enlisted  man  in  the  accused's  status  to  obey  the  order  of  a  militia  officer, 
or  his  disobedience  of  such  order,  or  his  disrespectful  conduct  and  deportment  toward 
such  officer,  would  be  acts  of  insubordination  properly  chargeable  under  "Conduct 
to  the  prejudice  of  good  order  and  discipline"  for  the  reason  that,  while  such  officer 
is  by  law  vested  with  authority  over  enlisted  men  detailed  to  duty  on  board  a  naval 
vessel  loaned  to  the  Naval  Militia,  nevertheless  such  officer  is  not.strictly  speaking, 
the  "superior  officer"  of  an  enlisted  man  in  the  Regular  Navy.  This  expression  in 
its  commonly  accepted  meaning  refers  to  a  man's  superior  in  the  same  service.  Thus, 
article  R-64,  provides  that  "within  the  meaning  of  the  foregoing  articles,  unless  there 
be  something  in  the  context  or  subject  matter  repugnant  to  or  inconsistent  with  such 
construction,  officers  shall  mean  commissioned  and  warrant  officers,  and  paymas- 
ters' clerks;  superior  officers  shall  be  held  to  include  mates  and  petty  officers  of  the 
Navy  and  noncommissioned  officers  of  the  Marine  Corps,  in  addition  to  the  officers 
enumerated."  Accordingly,  "Disobeying  lawful  order  of  superior  officer,"  "Strik- 
ing, assaulting,  or  attempting  or  threatening  to  strike  or  assault  his  superior  officer 
while  in  the  execution  of  duties  of  office/'  "  Refusing  to  obey  the  lawful  order  of  supe- 
rior officer,"  "Treating  his  superior  officer  with  contempt  or  being  disrespectful  to 
him  in  language  or  deportment  while  in  the  execution  of  his  office, "  are  offenses  specifi- 
cally provided  for;  nevertheless,  in  view  of  the  relations  existing  between  an  enlisted 
man  of  the  Regular  Navy  and  a  Naval  Militia  officer  under  whom  he  is  serving,  and 
in  view  of  the  commonly  accepted  interpretation  of  the  words  "superior  officer,"  and 
the  definition  thereof  contained  in  R-64,  such  offenses  would  under  the  circumstances 
stated  be  chargeable  as  "  Conduct  to  the  prejudice  of  good  order  and  discipline,"  and 
this  is  the  meaning  of  the  paragraph  quoted  from  Court-Martial  Order  No.  10,  1915, 
p.  12,  and  this  meaning  is  expressed  in  said  paragraph  by  the  statement  that  insubor- 
dination under  the  circumstances  suggested  would  oe  punishable  as  "Conduct  to  the 
prejudice  of  good  order  and  discipline  "  "  in  accordance  withthe  Articles  forthe  Govern- 
ment of  the  Navy,"  that  is,  where  such  insubordination  is  not  specifically  provided  for. 

11.  In  conclusion,  you  are  informed  that  the  department's  decision  is  as  follows: 

(a)  That  the  charges  and  specifications  preferred  against  the  accused  are  in  due  form 
and  technically  correct,  as  decided  by  the  court  at  the  outset  of  its  proceedings; 

(b)  That  while  these  offenses  might  perhaps  have  been  charged  as  "Conduct  to  the 
prejudice  of  good  order  and  discipline,"  they  are  specifically  provided  for  by  the 
Articles  for  the  Government  of  the  Navy,  and  were  therefore  properly  charged  under 
the  specific  headings;  and 

(c)  That  the  court-martial  of  which  you  are  president,  has  jurisdiction  of  the  charges 
in  question  as  preferred. 

12.  It  is  accordingly  directed  that  the  court  in  this  case  proceed  with  the  trial. 
Upon  reconvening  the  court  proceeded  with  the  trial  and  acquitted  the  accused  of 

both  charges.  File  26251-10968:6,  Sec.  Navy.  November  16.  1915;  G.  C.  M.  Rec.  No. 
31331;  C.  M.  O.  49,  1915,  16-20. 

40.  Same — The  accused  (a  coal  passer)  was  directed  to  report  to  the  commanding  officer 

of  the  U.  S.  S.  Oneida  for  duty  as  shipkeeper  on  board  that  vessel.  The  U.  S.  S. 
Oneida  was,  under  the  provisions  of  the  Act  of  August  3, 1894  (28  Stat.  219).  as  amended 
by  the  Act  of  May  11,  1898  (30  Stat.  404),  transferred  to  the  Naval  Miluia  of  the  Dis- 
trict of  Columbia.  An  officer  of  the  Naval  Militia  wasr  by  Special  Order  No.  9  of 
the  Brigadier  General  of  the  District  of  Columbia  Militia,  dated  February  26, 1900, 

fiven  command  of  the  Oneida,  with  directions  to  superintend  the  general  repairs  to 
hat  vessel.  The  accused,  having  been  instructed  by  this  Naval  Militia  officer  in 
command  of  the  Oneida  to  perform  certain  work  on  the  pilot  house  of  the  Oneida, 
refused  so  to  do,  thus  refusing  duty  to  which  he  had  been  regularly  assigned  when 
detailed  as  shipkeeper  on  board  that  vessel.  The  accused  was  tried  by  a  general 
court-martial  of  the  Regular  Navy  and  found  guilty  of  "Conduct  to  the  prejudice  of 
good  order  and  discipline."  C.  M.  O.  132,  1901. 

41.  Same— A  machinist's  mate  was  detailed  to  duty  on  board  the  U.  S.  S.  Yantic 

which  had  been  loaned  to  the  Naval  Militia  of  the  State  of  Michigan.  He  was  tried 
by  general  court-martial  convened  by  the  Secretary  of  the  Navy  for  "Conduct  to 
the  prejudice  of  good  order  and  discipline,"  the  specifications  alleging  that  he  used 
abusive,  profane  and  threatening  language  toward  the  Naval  Militia  officer  who  was 
the  executive  officer  of  the  Yantic,  and  found  guilty.  G.  C.  M.  Rec.  30823. 

42.  "System  of  discipline"— As  provided  in  the  act  of  August  29, 1916,  defined  and  dis- 

cussed.   File  8124-55,  J.  A.  G.,  Oct.  17, 1916.    See  also  SYSTEM  OF  DISCIPLINE. 


408  NAVAL   MILITIA. 

43.  Vessels  loaned  to  Naval  Militia  by  Regular  Navy — In  accordance  with,  the  pro- 

visions of  the  Constitution  and  of  the  laws  enacted  in  pursuance  thereof,  the  Presi- 
dent, in  cases  not  affecting  the  execution  of  the  laws  or  the  protection  of  the  property 
of  the  United  States,  may  use  the  military  or  naval  forces  of  the  United  States  within 
the  boundaries  of  the  several  States  only  on  application  of  the  legislature  of  the  State, 
or,  in  case  the  legislature  cannot  be  convened,  on  application  of  the  governor.  In  other 
words,  it  is  considered  that  the  President,  except  as  indicated,  is  not  legally  authorized 
to  use,  or  permit  to  be  used,  the  naval  forces  under  his  command  to  assist  any  par- 
ticular State  in  the  maintenance  of  law  and  order  within  its  boundaries.  As  a  naval 
vessel  is  one  of  the  integral  and  most  important  units  going  to  make  up  the  naval 
forces  of  the  United  States,  it  would  seem  that  this  prohibition  to  the  use  of  the  naval 
forces  would  extend  to  such  an  important  part  thereof  as  a  naval  vessel  that  is  armed 
and  equipped  for  war. 

Should  occasion  ever  arise  in  the  future  making  desirable  the  use  of  the  Montgomery 
to  quell  "riots,  insurrection,  or  defiance  of  civil  law  within  the  State  limits,  it  is  con- 
sidered that  the  only  lawful  manner  in  which  the  vessel  could  be  so  used  would  be  in 
accordance  with  the  provisions  of  the  Constitution,  upon  application  of  the  legis- 
lature or  of  the  executive  (when  the  legislature  cannot  oe  convened),  made  to  the  Presi- 
dent. File  4570-194,  Mar.  15, 1915. 

44.  Same-pNaval  vessels  loaned  to  State  militia  organizations  may  be  used  only  for  the 

training  and  instruction  of  the  Naval  Militia.  While  it  may  perhaps  be  said  that  in 
a  certain  sense  the  use  by  a  Stace  of  a  naval  vessel  loaned  to  the  Naval  Militia  for  the 
purpose  of  quelling  riots,  insurrection,  or  defiance  of  civil  law  within  the  State  limits 
is  such  a  use  as  may  tend  to  promote  the  efficiency  of  the  Naval  Militia  that  may  be 
on  board,  it  is  nevertheless  considered  that  such  a  use  of  a  naval  vessel,  her  armament 
and  equipment,  for  what  is  in  reality  a  purely  local  police  work  is  a  use  entirely  foreign 
to  the  promotion  of  the  efficiency  of  the  Naval  Militia  as  contemplated  by  the  act  of 
February  16,  1914  (38  Stat.  283).  File  4570-194.  Mar.  15,  1915. 

The  Naval  Militia  act.  approved  February  16, 1914  (Q.  O.  No.  77),  section  2,  is  to 
be  construed  in  connection  with  the  act  of  August  3,  1894  (28  Stat.  219),  and  accord- 
ingly, the  vessels  so  loaned  to  the  States  are  to  be  used  "  only  by  the  regularly  organ- 
ized Naval  Militia  of  the  State  for  the  purposes  of  drill  and  instruction."  File 
45701194,  J.  A.  G.,  Dec.  19,  1914. 

The  Solicitor  held:  That  it  would  be  unlawful  for  the  State  of  Maryland  "to  utilize 
the  Montgomery  for  patrol  duty  within  the  State  and  if  necessary  in  silencing  and  dis- 
persing riots  and  insurrections  on  the  shores  bordering  her  waters."  The  Mont- 
gomery was  loaned  to  Maryland  under  agreement  dated  March  10. 1915,  covering  the 
loan  of  a  vessel  in  "reserve  commission."  File  4570-194.  Op.  Solicitor,  Mar.  15, 1915. 

45.  Witnesses  before  naval  coUrts-martlal— A  Naval  Militia  member  subpoenaed  as  a 

witness  before  a  naval  court-martial  is  not  thereby  called  into  the  service  of  the  United 
States  under  the  provisions  of  Article  I,  sec.  8,  clause  15  of  the  Constitution,  and  the 
act  of  February  16. 1914,  sec.  3  (38  Stat.  284).  He  is  not,  therefore,  by  virtue  of  such 
subpoena  entitled  to  the  pay  and  allowances  provided  for  the  Naval  Militia  when 
called  into  the  service  of  the  United  States.  File  26276-119:3,  J.  A.  G.,  Jan.  26, 1916. 
See  also  NAVAL  MHJTIA,  46. 

46.  Same^-A  member  of  the  Naval  Militia  subpoenaed  as  a  witness  before  a  naval  court- 

martial  when  his  organization  is  not  in  the  service  of  the  United,  States  is  in  the 
status  of  a  civilian  witness,  not  in  Government  employ,  and  he  is  entitled  to  fees  and 
mileage. accordingly.  File 26251-10968:9,  Sec.  Navv,  Dec.  1, 1915;  26276-119:2,  J.  A.  G., 
Dec.  21, 1915;  Dec.  1, 1915;  26276-119,  Sec.  Navy,  Dec.  22, 1915;  C.  M.  O.  49, 1915, 26. 
See  also  NAVAL  MILITIA,  45. 

NAVAL  OBSERVATORY. 

1.  Naval  station— The  Naval  Observatory  is  a  naval  station,  and  the  Superintendent  of 
the  Naval  Observatory  is  the  commandant  of  a  naval  station  within  the  meaning 
of  the  act  of  January  25, 1895  (28  Stat.  639),  "authorizing  certain  officers  of  the  Navy 
and  Marine  Corps  to  administer  oaths"  as  amended  by  the  act  of  March  3, 1909  (31 
Stat.  1086).  File  19037-45,  May  26, 1914.  See  also  File  15924,  Apr.  3,  1903;  26509-97, 
Feb.  4,  1913. 

NAVAL  OFFICERS.    See  OFFICERS. 

NAVAL  OPERATIONS,  CHIEF  OF. 

1.  Commission  tor.    See  File  22724-33,  J.  A.  G.,  Aug.  22,  1916. 


NAVAL    RESERVE    FORCE.  409 

NAVAL,  PRISONS.    See  also  PKISONS. 
1.  Printing  press  for— Requested.    See  PRINTING  PRESS. 

NAVAL,  PROVING  GROUND,  INDIANHEAD,  MD.    See  JURISDICTION,  83-84. 

NAVAL  RECORDS. 

1.  Names,  change  of.    See  NAME,  CHANGE  OF. 

2.  Nation's  history— Important  part  of.    See  NAME,  CHANGE  or,  5. 

3.  Records  of  the  department.    See  RECORDS  OF  THE  DEPARTMENT. 

NAVAL,  RESERVE. 

1.  Marine  Corps — The  Comptroller  of  the  Treasury  Department  in  a  decisi9n  dated 

April  2, 1915,  stated,  in  part,  "I  therefore  advise  you  that  service  in  the  Marine  Corps 
may  be  included  in  computing  the  service  of  members  of  the  Naval  Reserve."  (See 
act  of  Mar.  3, 1915,  38  Stat.;  22  Stat.,  472,  473,  c.  97;  U.  8.  v.  Dunn,  120  U.  S.,  249;  Wilkes 
v.  Dinsman,  7  How.,  89).  File  28550-1  and  28550-1:2,  J.  A.  G.,  Apr.  5,  1915;  C.  M.  O. 
16, 1915,  6. 

2.  Same— The  act  of  March  3,  1915  (38  Stat.  940)  establishing  a  Naval  Reserve  did  not 

authorize  the  establishment  of  a  Marine  Corps  Reserve,  since  the  language  of  this 
law  is  used  in  the  restricted  sense,  applicable  only  to  the  Navy  proper.  File  5460-81, 
J.  A.  G.,  May  12, 1916.  But  see  MARINE  CORPS  RESERVE,  2. 

3.  Messmen,  signalmen,  etc. — Detail  of  Naval  Reserve  members  as  messmen,  signalmen, 

etc.— Extra  compensation  for.     File  28550-10,  J.  A.  G.,  June  15, 1916. 

4.  Service  "In  the  Navy" — Service  in  the  Naval  Reserve  is  not  service  "in  the  Navy" 

within  the  meaning  of  the  Executive  order,  November  27, 1906  (published  in  G.  O. 
34,  Nov.  28, 1906).  and  therefore  a  citizen  of  the  United  States  whose  last  discharge 
from  the  Regular  Navy  was  by  reason  of  expiration  of  enlistment,  and  who  thereafter 
enlists  in  the  Naval  Reserve  and  is  discharged  therefrom  within  a  year,  is  entitled  on 
reenlistment  in  the  Regular  Navy  to  the  benefits  of  said  Executive  order.  This 
decision  is  an  original  construction  of  the  act  of  March  3,  1915  (38  Stat.,  941).  Comp. 
Dec.,  Aug.  2, 1916;  File  26254-2081. 

5.  Time  of  peace,  service  In — In  construing  that  part  of  the  Naval  appropriation  act 

approved  March  3,  1915  (38  Stat.  941),  reading  as  follows— "  Members  of  the  Naval 
Reserve  may,  in  time  of  peace,  be  required  to  perform  not  less  than  one 'month's  active 
service  on  board  a  vessel  of  the  Navy,  during  each  year  of  service  in  the  Naval  Reserve, 
and  such  active  service  shall  not  exceed  two  months  in  any  one  year" — it  was  held: 

"  1st.  That  a  member  of  the  Naval  Reserve  may  be  required  to  serve  less  than  one 
month's  active  service  on  board  a  vessel  of  the  Navy  in  time  of  peace,  but  that,  as  a 
general  rule,  the  legislative  expression  on  this  point  should  be  observed.  It  follows 
that  a  member  of  the  Naval  Reserve  may  be  ordered  to  active  service  on  board  a  ves- 
sel of  the  Navy  for  one  month  and  be  discharged  from  such  active  service  at  the  end 
of  a  shorter  period  of  time  at  the  discretion  of  the  bureau  in  case  it  is  either  necessary 
or  desirable;  furthermore,  in  case  it  is  necessary  or  desirable  to  the  efficiency  of  the 
Naval  Reserve,  a  member  of  the  Naval  Reserve  may  be  called  into  active  service  for 
less  time  than  one  month,  there  being  no  provision  requiring  or  suggesting  that  the 
.  one  month's  service  be  rendered  at  any  one  time;  and 

"2d.  That  a  member  of  the  Naval  Reserve  can  not  be  allowed  to  render  voluntary 
active  service  exceeding  two  months  in  any  one  year,  but  if  the  legislative  requirement 


6.  Transportation  of  applicants  for  enlistment— T^he  transportation  of  applicants  for 

enlistment  in  the  Naval  Reserve  from  the  substations  to  the  main  recruiting  stations 
and  return  may  be  paid  from  the  appropriation  for  the  Naval  Reserve  made  by  thja 
act  of  March  3, 1915  (38  Stat.  941)  which  reads  in  part  as  follows:  "  The  sum  of  $130,000 
is  hereby  appropriated  to  carry  into  effect  the  forgoing  provisions  relative  to  a  naval 
reserve."  (See  Comp.  Dec.,  Dec.  31,  1915.)  File  28550-11,  Sec.  Navv,  Dec.  13,  1915; 
C.  M.  O.  49, 1915,  26-27. 

7.  Went  out  of  existence— "By  operation  of  law  on  August  2^,  19'6."    File  28550-20, 

J.  A.  G.,  Oct.  4, 1916.    See  also  Comp.  Dec.,  Sept.  22, 1916,  No.  692. 

NAVAL  RESERVE  FORCE. 

1.  Fleet  Naval  Reserve— Retainer  pay.    File  28550-20,  Sec.  Navy,  Nov.  1,  1916.    See  also 
File  28550-20:1,  J.  A.  G.,  Nov.  10,  1916. 


410  NAVIGATION. 

NAVAL  RETIRING  BOARDS. 

1.  Constitution  of — Whenever  any  officer  on  being  ordered  to  perform  the  duties  appro- 

priate to  his  commission  reports  himself  unable  to  comply  with  such  order,  or  when- 
ever, in  the  judgment  of  the  President,  an  officer  is  incapacitated  to  perform  the 
duties  of  his  office,  the  President,  at  his  discretion,  may  direct  the  Secretary  of  the 
Navy  to  refer  the  case  of  such  officer  to  a  board  of  not  more  than  nine  nor  less  than  five 
commissioned  officers,  two-fifths  of  whom  shall  be  members  of  the  Medical  Corps  of 
the  Navy.  Said  board,  except  the  officers  taken  from  the  Medical  Corps,  shall  be 
composed,  as  far  as  may  be,  of  seniors  in  rank  to  the  officer  whose  disability  is  inquired 
of.  (Sec.  1448,  R.  S.) 

2.  Rank  of  members — The  proceedings  of  a  retiring  board  were  held  to  be  fatally  irregular 

and  erroneous,  and  the  proceedings  were  set  aside.  One  of  the  nonmedical  members 
was  junior  in  rank  to  the  candidate,  who  appeared  before  the  board  pursuant  to  an 
order  issued  by  the  Chief  of  the  Burau  of  Navigation,  whereas  the  department's  precept 
convening  the  board,  was  for  the  examination  of  'such  officers  as  may  be  ordered  by 
the  Secretary  of  the  Navy  to  appear  before  it."  Recommended  that  the  following 
paragraph  be  added  to  the  department's  precepts  convening  retiring  boards:  "The 
board  will  not  examine  officers  who  are  senior  to  any  nonmedical  member  of  the 
board  without  specific  instructions  from  the  Secretary  of  the  Navy  in  each  case." 
File  26253-257,  J.  A.  G.,  Jan.  10,  1913,  approved  by  Sec.  Navy,  Jan.  10,  1913. 

3.  Section  1452  Revised  Statutes — Relating  to  retiring  boards  in  the  Navy,  provides 

that,  "A  record  of  the  proceedings  and  decisions  of  the  board  in  each  case  shall  be 
transmitted  to  the  Secretary  of  the  Navy,  and  shall  be  laid  by  him  before  the  Presi- 
dent for  his  approval  or  disapproval,  or  orders  in  the  case."  For  a  case  where  the  Presi- 
dent neither  approved  nor  disapproved,  see  File  26253-275,  Sec.  Navy,  Apr.  4,  1913. 

NAVAL,  WAR  COLLEGE.    See  also  ALIENS,  12. 

1.  Brazil.    See  NAVAL  ATTACHES,  1. 

2.  Established— Naval  War  College  established.    See  G.  O.  325,  Oct.  6, 1884. 

NAVIGATION.    See   also   COLLISION;    COMMANDING    OFFICERS;    OFFICER-OF-THE-DECK; 
WATCH  OFFICERS. 

1.  "  Aids  to  navigation."    C.  M.  O.  27,  1916.    See  also  NAVIGATION,  17. 

2.  Asiatic  station— Gunboats  on.    See  GUNBOATS,  1. 

3.  Beacons.   See  NAVIGATION,  17. 

4.  Bearings  on  lights.    See  NAVIGATION,  10. 

5.  British  Navy— Loss  of  the  Victoria.    G.  C.  M.  Rec.  32389,  pp.  87-88. 

6.  Buoys.   See  NAVIGATION.  7, 17,  19, 31, 32,  42,  94. 

7.  Channel  buoys.    C.  M.  O.  27, 1916. 

8.  Charts— Failing  to  make  use  of  (C.  M.  O.  24,  1911;  17, 1913);  Navigation  without  use 

of  (C.  M.  0. 24, 1916,  2);  Commanding  officer  failed  to  supply  the  officer  of  the  deck 
with  proper  chart  (C.  M.  O.  29. 1909);  Navigating  chart  (See  NAVIGATION,  71);  Coast 
Survey  and  Hydrographic  Office  Charts  (See  CHARTS);  Current  charts  (C.  M.  O.  24, 
1912,  2);  Unreliable  charts  (see  NAVIGATION,  17). 

9.  Chart  board.    C.  M.  O.  27, 1916, 2. 

10.  "Checking  the  position" — Navigator  tried  by  general  court-martial  for  failing  to  use 

the  ordinary  and  simple  methods  of  navigation  by  checking  the  position  by  means  of 
bearings  on  a  light.  C.  M.  O.  24, 1911,  2.  See  also  G.  C.  M.  Rec.  32389. 

11.  Coast  pilot  information.    G.  C.  M.  Rec.  32389. 

12.  Collision.    See  COLLISION. 

13.  Commander  in  chief— Responsibility  of  commander  in  chief  as  to  navigation.    See 

NAVIGATION,  31. 

14.  Commanding  officer—  Responsibility  of  with  reference  to  navigation  of  the  vessel  he 

commands.  See  COLLISION,  19;  COMMANDING  OFFICERS,  38;  NAVIGATION,  15-19, 31, 
53,57,71,72,82,86,88. 

15.  Same— The  commanding  officer  of  a  vessel  can  not  relieve  himself  from  the  respon- 

sibility for  the  safe  conduct  of  the  vessel  under  his  command  without  a  definite  protest 
when  he  realizes  that  the  vessel,  in  obedience  to  an  order,  is  being  steered  from  an 
uncertain  position  into  known  danger.  G.C.M.  Rec.  32389;  File  26251-1 2077.  J.  A.  G., 
Aug.  2, 1915,  approved  by  Sec.  Navy  Aug.  16, 1916.  See  also  NAVIGATION,  31. 

16.  Same— The  department  considers  that  the  good  of  the  naval  service  requires  the  com- 

manding officer  of  every  naval  vessel  to  be  held  to  very  strict  responsibility  for  the 
safety  of  the  ship  and  its  officers  and  men. 


NAVIGATION.  411 

The  commanding  officer's  obligation  of  vigilance  was,  in  the  department's  judgment , 
not  lessened,  but  rendered  more  imperative  by  the  facts  that  the  vessel  was  on  a 
"shake-down"  cruise  and  that  he  had  no  previous  personal  a  quaintance  with  the 
navigator. 

How  far  the  navigator  may  have  been  in  fault  need  not  be  considered  in  this  case, 
his  negligence  or  errors  can  not  excuse  or  palliate  those  of  the  commanding  officer. 
C.  M.  O.  53, 1906. 

17.  Same-yWas  charged  with  running  his  ship  upon  a  rock,  etc.,  and  sentenced  to  be 

dismissed,  which  was  confirmed  by  the  President.  The  vessel  was  at  the  time  of  the 
accident  cruising  on  special  service  in  proximity  to  dangerous  coasts  which  were 
unprovided  with  lighthouses,  beacons,  buoys,  or  other  ordinary  aids  to  navigation, 
demanded  special  vigilance  on  the  part  of  the  accused.  The  accused  was  aware  that 
the  charts  of  the  locality  were  unreliable  and  the  currents  uncertain,  but  instead  of 
exercising  constant  and  unremitting  care  in  navigating  his  vessel,  he  failed,  while 
approaching  Tugidak  Island,  Alaska,  to  lay  a  course  which  would  bring  his  vessel 
clear  of  that  island  or  to  cause  soundings  to  be  taken  as  required  in  such  cases  by  the 
Navy  Regulations.  About  half  past  three  of  the  morning  of  the  accident,  more  than 
an  hour  before  the  vessel  struck,  land  on  an  unexpected  bearing  was  reported  to  the 
accused,  and  the  officer  of  the  deck  subsequently  reported  to  him  that ''the  engines 
had'  been  slowed  to  ease  the  strain  on  the  topsails,"  which  reports,  under  the  condi- 
tions then  existing,  should  have  made  him  aware  that  his  presence  on  deck  was 
imperatively  required.  In  consequence  of  the  absence  from  his  post  of  duty  of  her 
commander,  the  orders  for  the  management  of  the  vessel  were  not  promptly  or  clearly 
given,  the  sails  were  not  properly  handled,  the  engines  were  stopped,  and  after  nearly 
three-quarters  of  an  hour  had  been  consumed  in  the  attempt  to  change  the  course  of 
the  vessel,  she  drifted  upon  the  rocks.  During  all  this  time  the  accused  remained  in 
his  cabin,  and  did  not  appear  on  deck  until  the  vessel  struck.  C.  M.  O.  7, 1893, 3-4. 

18.  Same — Was  charged  with  "Through  negligence  suffering  a  vessel  of  the  Navy  to  be 

run  upon  a  shoal."    The  court  found  him  guilty  of  "Suffering  a  vessel  of  the  Navy 

to  be  run  upon  a  shoal."    The  findings  as  recorded  amount  to  a  declaration  on  the 

part  of  the  court  that  an  officer  who  disregards  substantially  all  the  precautions 

prescribed  byihe  regulations  relating  to  the  handling  of  a  naval  vessel  is  not  guilty 

of  aeglig«ne«r-'  The  department  can  not  concede  the  principle  that  an  officer  may 

wholly  disregard  requirements  of  the  regulations  and  ordinary  precautions  intended 

/  to  protect  the  safety  of  the  vessel  under  his  command  and  yet  avoid  responsibility, 

I   and  deems  it  necessary  to  emphasize  the  vital  importance  of  the  unfailing  observance 

I    of  one  of  the  greatest  safeguards  known  to  seamen,  namely,  taking  soundings^  In 

[  this  case  an  officer,  clearly  guilty  of  very  serious  negligence,  by  the  strained  and 

*•  illogical  conclusion  reached  by  the  court,  escaped  adequate  punishment  for  his  offenses. 

C.  M.  0. 43, 1906.    See  also  NAVIGATION,  17, 82. 

19.  Same— Is  guilty  of  gross  negligence— Where  a  commanding  officer  was  in  plain  sight 

of  range  lights  which  indicated  a  safe  course  through  the  channel,  but  ignored  them 
and  attempted  to  pilot  his  vessel  at  night  by  buoys,  which  are  frequently  out  of  place, 
he  is  guilty  of  gross  negligence.  C.  M.  0. 15, 1905. 

20.  Concurrent  responsibility.    C.  M.  O.  24, 1916, 4;  NAVIGATION,  57. 

21.  Current—  Failing  to  allow  for.    C.  M.  O.  2, 1915;  3, 1915. 

22.  Same-; Navigator  failed  to  make  use  of  the  information  furnished  by  official  publica- 

tions in  regard  to  the  currents,  in  consequence  the  vessel  was  stranded  upon  a  shoal. 
C.  M.  O.  24.  1916,  1.  See  also  NAVIGATION,  28. 

23.  Same— Variable  currents  (C.  M.  O.  27, 1916, 1);  Tidal  currents  (G.  C.  M.  Rec.  32389); 

Uncertain  currents  (see  NAVIGATION,  17). 

24.  Current  charts  — The  navigator  navigated  the  vessel  without  the  use  of  the  very 

important  current  charts  supplied  for  the  waters  in  question.    C.  M.  O.  24, 1916,  2. 

25.  Danger — There  are  times  when  danger  need  not  be  considered.    See  COLLISION.  6. 

26.  Same— Duty  of  commanding  officer  when  a  source  of  possible  danger  is  reported  to  him. 

See  COLLISION,  19. 

27.  Dead  reckoning— Errors  in.    C.  M.  O.  2,  1915;  3,  1915;   G.  C.  M.  Rec.  32389;   NAVI- 

GATION, 28, 31. 

28.  Same — A  navigator  in  plotting  his  course  by  dead  reckoning  failed  to  make  use  of  the 

information  furnishedDy  official  publications  in  regard  to  the  currents,  in  consequence 
of  which  the  vessel  was  stranded  upon  a  shoal.  C.  M.  O.  24, 1916, 1.  See  also  NAVI- 
GATION, 22. 

29.  Derelicts.    See  DERELICTS. 

30.  Destroyers — Navigation  of  torpedo-boat  destroyers.    See  NAVIGATION,  88. 


412  NAVIGATION. 

31.  Division  Commander— A  division  commander  was  tried  by  general  court-martial 
and  found  guilty  of  the  charges  of  "Improperly  hazarding  a  vessel  of  the  Navy,  in 
consequence  of  which  she  was  run  upon  ashoaland  seriously  injured,"  and  "Violation 
of  a  lawful  regulation  issued  by  the  Secretary  of  the  Navy." 

The  evidence  adduced  in  this  case  shows  that  the  commanding  officer  of  the  San 
Francisco  had  been  directed  to  proceed  with  the  vessel  under  his  command  to  the  en- 
trance of  Great  Round  Shoal  Channel.  At  12.07  a.  m.  the  ship  arrived  at  the  point 
which  by  reckonings  should  have  been  close  to  the  entrance  buoy.  Upon  arriving 
at  this  point  the  division  commander  was  to  decide  whether  to  proceed  through  the 
channel  or  to  go  outside  around  Nantucket  Shoal,  the  decision  being  dependent  upon 
weather  conditions.  The  facts  may  be  stated  as  follows: 

The  division  commander  is  weighing  the  alternatives  of  the  situation  in  his  mind 
and  is  about  to  decide  as  to  the  course  of  action  when,  at  12. 14  a.  m.  the  officer  of  the 
deck  reports  sighting  a  flashing  light  bearing  225°;  the  captain  doesn't  see  it;  the 
navigator  doesn't  see  it;  no  lookouts  report  it.  The  division  commander,  feeling 
that  this  light  is  the  one  for  which  all  have  been  searching,  gives  the  order,  at  12.15, 
"head  for  the  light,  captain." 

The  commanding  officer  enters  no  protest  to  the  order  of  the  division  commander 
but  gives  the  necessary  orders;  the  snip  turns  slowly  to  starboard;  by  order  of  the 
commanding  officer  speed  is  increased  to  two-thirds  in  order  to  expedite  her  swinging, 
and  finally  is  steadied  on  231°.  Meanwhile  the  commanding  officer  reiterates  his 
inability  to  see  the  light  but  steadies  the  ship  one-half  point  away  from  the  bearing 
given  by  the  division  commander  in  order  to  avoid  certain  foul  ground  near  buoy 
No.  4,  which  he  at  that  time  thought  the  light  marked.  From  the  evidence  recorded 
it  appears  that  no  doubt  arose  in  the  mind  of  any  person  on  the  bridge  as  to  whether 
or  not  the  light  was  on  one  or  the  other  of  the  two  channel  buoys;  the  only  question  which 
seems  ot  have  arisen  in  the  mind  of  the  commanding  officer  was  as  to  whether  or  not 
the  light  actually  existed. 

Though  the  navigator  plotted  the  new  course  (231°)  on  the  chart  from  the  dead 
reckoning  position  at  12.15,  and  though  he  found  it  passed  over  a  shoal  about  2  miles 
distant  and  varied  about  25°  from  the  course  of  the  channel,  and  though  this  dis- 
crepancy was  observed  by  both  the  commanding  officer  and  the  division  commander, 
no  action  was  taken  by  any  .person ,  and  the  course  was  followed  until  th  -  Son  Francisco 
took  ground  at  12.41  a.  m. 

No  issue  of  fact  was  involved  in  this  case.  The  Navy  Regulations  bearing  upon 
the  issue  are  as  follows: 

R-1606.  "The  commander  in  chief  shall  direct  the  course  to  be  steered  by  the  fleet 
when  at  sea.  and  is  responsible  for  its  safe  conduct." 

R-2081  (5).  "Unless  in  company  with  a  senior,  he  [the  commanding  officer]  is 
responsible  for  the  course  steered,  and  he  is  always  responsible  for  the  safe  conduct 
of  the  ship." 

The  Judge  Advocate  General  placed  upon  the  record  the  following  indorsement: 

"The  proceedings  and  sentence  in  this  case  are  legal;  the  findings  on  the  second 
charge  are  recommended  for  approval;  the  specification  of  the  first  charge  was  proved. 

"The  question  of  whether  or  not  Commander  *  *  *,  [the  accused]  in  giving  an 
order  to  head  for  a  certain  light  and  in  permitting  a  course  to  be  steered  for  that  light 
under  existing  conditions,  was  guilty  of  'Improperly  hazarding  a  vessel  of  the  Navy,' 
is  so  intimately  connected  with  the  policy  of  the  Navy  Department  in  the  fixing  of 
responsibility  and  the  division  of  responsibility  as  between  flag  officers  and  command- 
ing officers,  that  the  case  is  referred  to  the  Bureau  of  Navigation  through  the  Chief  of 
Naval  Operations." 

The  Chief  of  Naval  Operations  in  his  indorsement  upon  this  case  set  forth  his  views 
in  effect,  viz: 

That  Navy  Regulations,  1913,  R-1606— 

"The  commander  in  chief  shall  direct  the  course  to  be  steered  by  the  fleet  when  at 
sea.  and  is  responsible  for  its  safe  conduct,"  does  not  apply  in  the  case  of  a  single  ship, 
and  was  not  intended  to  make  a  flag  officer  responsible  for  the  detailed  handling  of  a 
ship  on  which  he  is  a  passenger;  that  under  such  circumstances  a  flag  officer  is  not 
charged  with  responsibility  unless  in  his  opinion  the  commanding  officer  of  the  ship 
is  incompetent  to  properly  discharge  his  duties;  however,  that  a  flag  officer  who,  as 
in  his  case,  interferes  with  the  navigation  of  a  ship  on  which  he  is  a  passenger,  thereby 
voluntarily  assumes  joint  responsibility  for  the  safe  conduct  of  the  ship  and  under 
such  circumstances  should  be  held  responsible  for  the  consequences. 
• 


NAVIGATION.  413 

That  at  the  same  time  the  last  clause  of  Navy  Regulations,  1913,  R-2081  (5)— 
"Unless  in  company  with  a  senior,  he  is  responsible  for  the  course  steered,  and  he 
is  always  responsible  for  the  safe  conduct  of  the  ship,"  places  the  responsibility  for  the 
safe  conduct  of  a  vessel  clearly  and  definitely  upon  the  commanding  officer  under  all 
circumstances;  that  the  latter,  with  the  assistance  of  his  navigator,  the  officer  of  the 
deck,  the  quartermaster,  the  leadsmen,  lookouts,  and  other  means  at  his  disposal, 
should  have  given  the  benefit  of  such  assistance  and  information  to  the  division  com- 
mander and  made  it  clear  to  him  that  he  was  taking  risks  in  directing  the  ship  to  be 
steered  as  stated;  that  it  was  quite  as  clearly  the  duty  of  the  commanding  officer  of 
the  San  Francisco  to  inform  the  division  commander  of  the  risk  he  was  running  by 
steering  the  course  given,  as  it  was  the  duty  of  the  navigator  to  so  inform  the  com- 
manding officer  j  and  the  responsibility  can  not  be  avoided_in  either  case. 

fact 
senior 

Navy  Regulations  every  contingency  which  may  possibly  arise,  but  an  attempt  to 
do  so  would  not  be  conducive  to  the  proper  development  of  character  and  officer-like 
qualities.  Neither  is  it  considered  in  the  interests  of  efficiency  to  restrict  too  closely 
tne  performance  of  duty_  by  officers,  especially  those  of  the  higher  ranks.  Officers 
have  duties  and  obligations,  imposed  upon  them  by  the  commissions  which  they 
hold  and  the  positions  which  they  occupy,  which  are  as  binding  as  express  provision 
of  the  Navy  Regulations  could  be.  The  language  used  in  an  officer's  commission 
imposes  upon  him  the  responsibility  for  the  efficient  performance  of  duties  of  his  grade 
and  no  court  would  be  justified  in  relieving  of  culpability  an  officer  who  failed  to 
perform  such  duties  as  were  imposed  by  the  broad  terms  of  his  commission  and  by 
the  customs  of  the  service,  merely  because  such  duties  were  not  definitely  enumerated 
in  the  Navy  Regulations. 

The  Chief  of  the  Bureau  of  Navigation  placed  upon  the  record  an  indorsement: 
"Recommending  approval  of  the  findings  and  sentence  of  the  general  court-martial." 
The  Secretary  of  the  Navy  approved  the  proceedings,  findings,  and  sentence. 
C.  M.  O.  27, 1916. 

32.  Entrance  buoys.    C.  M.  O.  24, 1916, 3.    See  also  NAVIGATION,  31. 

33.  "Estimating  distances."    G.  C.  M.  Rec.  32390. 

34.  "Fixes."    G.  C.  M.  Rec.  32390;  File  26251-12138,  J.  A.  G.,  Aug.  8, 1916.    See  also  NAVI- 

GATION, 57. 

35.  Fixing  position  of  ship— A  navigator  failed  to  utilize  well  known  and  generally 

accepted  methods  of  fixing  the  position  of  a  ship.  C.  M.  O.  24,  1916,  1.  See  also 
C.M.  0.18,1913. 

36.  Flag  officers— With  reference  to  navigation.    See  NAVIGATION,  31  (p.  413). 

37.  Flagships— Navigation  of.    See  NAVIGATION,  31. 

38.  Flashing  lights.    C.  M.  0. 27, 1916  ,3.    See  also  NAVIGATION  31  (p.  412). 

39.  Foggy  and  misty  weather.   C.  M.  O.  27, 1916;  G.  C.  M.  Rec.  32389. 

40.  "Foul  ground."    C.  M.  O.  27, 1916.    See  also  NAVIGATION,  31  (p.  412). 

41.  "Foul  water."    C.  M.  O.  27, 1916;  G.  C.  M.  Rec.  32389. 
42  Gas  buoys.   See  GAS  BUOY. 

43.  Grounding  ship.    C.  M.  0. 15, 1905, 1.    See  also  GROUNDING  SHIP. 

44.  Same— Failing  to  enter  on  ship's  logbook  that  ship  went  aground.    C.  M.  O.  12,  1912. 

45.  Gunboats — Navigation  of  gunboats  on  Asiatic  station.    See  GUNBOATS. 

46.  Handlead.   C.  M.  0. 24, 1916, 3;  NAVIGATION,  57. 

47.  "Haphazard  navigation."    See  NAVIGATION,  88. 

48.  "Inevitable  accident."    See  COLLISION,  12. 

49.  Lead— Use  of  the  lead  as  a  means  of  checking  the  position  of  the  vessel.    C.  M.  O.  24, 

1911,  2.   See  also  NAVIGATION,  82. 

50.  Leadsman.   C.  M.  0. 27, 1916, 5. 

51.  Light  draft— Navigation  of  vessels  of  light  draft.    See  NAVIGATION,  82. 
52  Lookouts.   See  NAVIGATION.  31. 

53.  "Mere  guesses"— Commanding  officer  permitted  courses  to  be  steered  which  were 

"little  better  than  mere  guesses."    C.  M.  O.  9,  1911,  2. 

54.  Misty  and  foggy  weather.    C.  M.  O.  27, 1916;  G.  C.  M.  Rec.  32389. 

55.  Navigator— Tried  by  general  court-martial.    C.  M.  O.  24,  1911;   18,  1913;  33,  1913;    3, 

1915;  24, 1916. 

56.  Same — Errors  or  negligence  of  navigator  can  not  excuse  commanding  officer.    C.  M.  O. 

53, 1906.    See  also  NAVIGATION,  16. 


414  NAVIGATION. 

57.  Same-^Responsjbility  of— The  accused  (lieutenant,  junior  grade)  was  tried  and 
acquitted  qy  general  court-martial  on  the  following  charges: 

CHARGE  I.— Culpable  inefficiency  in  the  performance  of  duty  (one  specification 
alleging  that  the  accused,  as  navigator  of  the  San  Francisco,  in  plotting  his  course  by 
dead  reckoning  from  9  p.  m.  to  12  p.  m.  on  May  16, 1910,  failed  to  make  use  of  the 
information  furnished  by  official  publications  in  regard  to  thecurrents, in  consequence 
of  which  the  San  Francisco  was  stranded  upon  a  shoal  at  about  12.41  a.  m.  May  17, 
1916,  in  about  latitude  41°  21'  30"  N.,  longitude  69°  48'  40"  W.) 

CHARGE  II.— Culpable  negligence  and  inefficiency  in  the  performance  of  duty  (four 
specifications  alleging  a  failure  to  utilize  in  navigating  the  San  Francisco  certain 
well  known  and  generally  accepted  methods  of  fixing  the  position  of  a  ship,  and  that 
he  failed  to  notify  and  warn  the  commanding  officer  when,  in  his  opinion,  the  ship 
was  standing  into  danger,  as  the  result  of  which  the  San  Francisco  ran  upon  a  shoal 
at  the  time  and  place  set  forth  under  Charge  I.) 

In  reviewing  this  case  several  questions  arise,  and  it  is  uncertain  upon  what  ground 
the  court  arrived  at  an  acquittal.  These  questions  may  be  considered  as  follows: 

(1)  The  responsibility  of  the  navigator  under  the  circumstances. 

(2)  Whether  or  not  he  was  negligent  and  inefficient  in  the  actual  navigation  of  the 
ship.    This  in  turn  divides  itself  into  (a)  Navigation  of  the  ship  before  12.07  a.  m.,  and 
(b)  that  subsequent  to  12.07  a.  m. 

(3)  Whether  or  not,  as  a  consequence  of  such  neglect  and  failure,  the  San  Francisco 
stranded. 

Responsibility  of  the  navigator.— The  Navy  Regulations,  1913,  R-2401,  state  that 
"the  navigating  officer  is  the  officer  detailed  by  the  department  to  perform  the  navi- 
gation duties  and  is  the  head  of  the  navigation  department  of  the  ship."  It  also 
states  that  "the  navigating  officer  shall  be  senior  to  all  watch  and  division  officers." 
It  was  shown  by  the  evidence  that  the  accused  was  not  detailed  by  the  department 
but  was  detailed,  at  his  own  request,  by  the  captain  of  the  ship  as  navigator,  and  that 
he  was  not  the  officer  upon  whom  by  rank  the  navigation  duties  would  have  auto- 
matically devolved.  Certain  evidence  was  also  introduced  showing  that  upon 
graduation  he  stood  low  in  his  class  and  low  in  the  subject  of  navigation,  and  that 
he  had  not  received  instruction  in  navigation  since  his  graduation. 

The  question  of  his  standing  in  the  subject  of  navigation  and  the  absence  of  instruc- 
tion since  he  became  a  commissioned  officer  is  believed  to  be  irrelevant.  An  officer 
bearing  a  commission  must  be  accepted  as  a  responsible  person  and  must  be  held 
accountable  for  the  proper  and  efficient  performance  of  duties  commensurate  with  his 
grade  as  recognized  oy  Navy  Regulations.  The  only  question  remaining  under  this 
heading  is  whether  or  not  the  court  considered  that  he  was  legally  assigned  to  the 
duties  of  navigator  in  the  sense  of  being  responsible  for  the  efficient  performance  of 
those  duties.  The  duties  of  navigator  of  a  vessel  such  as  the  Sow  Francisco  are  com- 
mensurate with  the  grade  of  junior  lieutenant,  and,  despite  the  provision  of  the  Navy 
Regulations  above  quoted,  the  accused  was  responsible  for  the  proper  performance 
of  these  duties  after  they  were  assigned  him  by  the  commanding  officer;  it  is  not 
believed  that  the  court  acquitted  him  on  this  ground. 

Methods  of  navigation  of  the  ship — (a)  Before  12.07.— Without  reviewing  in  detail  all 
of  the  evidence  concerning  the  navigation  of  the  ship,  the  evidence  shows  that  the 
San  Francisco  was  navigated  from  the  last  fix  to  12.07  without  the  use  of  the  very 
important  current  charts  supplied  for  the  waters  in  question,  and  as  a  consequence 
arrived  at  the  entrance  to  Great  Round  Shoal  Channel  at  approximately  1 1 .54  instead 
of  12.07.  The  evidence  shows  that  working  forward  from  the  last  fix  and  applying 
the  current,  the  track  of  the  Son  Francisco  was  almost  identical  with  the  track 
obtained  by  working  back  from  the  position  of  grounding;  and  working  forward  it 
was  shown  that^he  would  have  arrived  off  the  entrance  to  the  channel  at  11.53,  while 
working  back  from  the  position  of  grounding  showed  that  she  must  have  arrived  off 
the  entrance  at  11.54;  in  other  words,  the  evidence  shows  that  had  the  current  chart 
which  was  supplied  to  the  ship  for  that  purpose  been  utilized  in  the  run  subsequent 
to  the  last  fix,  tier  position  would  at  alltimes  have  been  accurately  known,  aud  at 
11.53  or  11.54  either  the  entrance  buoys  would  have  been  sighted  or  else  a  course  to 
the  eastward  would  have  been  laid  at  that  time. 

(b)  After  12.07.— The  evidence  shows  that  at  12.14,  on  sighting  a  light  to  the  south- 
ward and  westward,  toward  which,  under  orders  of  the  division  commander,  the  ship 
was  steered,  with  the  exception  of  soundings  by  the  hand  lead,  ordinary  methods  of 
navigating  and  safeguarding  the  ship  were  neglected,  and  though  the  navigator 
realized  the  uncertainty  of  his  position,  he  failed  to  advise  and  warn  the  captain  as  to 
his  opinion  concerning  the  danger  of  the  course  then  bemg  pursued,  as  is  required  by 


NAVIGATION.  415 

Navy  Regulations.  Navy  Regulations,  1913,  R;-2404  (3),wequi|es  that  "If  the  com- 
manding officer  is  conning  and  the  navigator  thinks  the  ship  is  running  into  danger, 
he  shall  so  inform  the  commanding  officer  and  advise  him  as  fo  a  safe  course  to  be 
steered."  It  is  believed  that  the  full  purport  and  value  ofthis  regulation  is  frequently 
overlooked.  This  warning  which  is  required  by  regulations  is  as  important  a  portion 
of  the  duties  of  navigator  as  are  the  ordinary  methods  of  piloting;  this  regulation  is 
not  intended  to  be  permissive,  it  is  mandatory.  The  keeping  afloat  of  a  vessel  of 
war  is  a  duty  so  important  that  the  Government ,  in  order  to  safeguard  itself  and  insure 
a  check  against  those  unaccountable  lapses  which  sometimes  occur  in  any  individual , 
however  proficient  he  may  be,  has  prescribed  a  concurrent  responsibility  in  regard 
to  the  navigation  thereof. 

The  department  considers  that  in  cases  of  danger,  or  in  cases  where  the  navigator 
feels  uncertain  of  his  position,  the  requirement  above  quoted  of  article  2404  is  an  addi- 
tional safeguard  intended  to  bring  forcibly  to  the  attention  of  the  commanding  officer 
the  fact  that  the  position  of  the  ship  is  not  known  to  the  navigator.  (Though  the 
evidence  shows  that  both  the  division  commander  and  the  commanding  officer  were 
cognizant  of  the  conditions  subsequent  to  12.07,  this  knowledge  is  not  construed  as 
relieving  the  navigator  of  responsibility  for  affirmatively  informing  the  commanding 
officer  oT his  opinion  concerning  the  course  then  being  steered ;  and  aside  from  all  other 
navigational  features  subsequent  to  12.07,  the  department  considers  that  the  failure  of 
the  navigator  to  make  this  protest  was  in  itself  negligence  and  inefficiency  in  the  per- 
formance of  his  duties. 

Effect  of  navigational  methods  upon  stranding  of  the  ship. — If  it  is  considered  that  the 
accused  was  inefficient  in  the  navigation  of  the  ship;  that  the  methods  used  by  him 
were  not  such  that  the  Government  has  a  right  to  demand  of  officers  charged  with 
this  duty,  then  it  may  be  stated,  as  a  matter  of  law,  that  the  final  clause  in  each  speci- 
fication to  the  effect  that "  in  consequence  of  which  neglect  and  failure  the  San  Fran- 
cisco was  stranded,"  is  surplusage  and  is  not  an  essential  part  of  the  specification. 
It  is  a  portion  of  the  specification  which  might  have  been  omitted  in  framing  the 
charges,  or  it  might  have  been  affirmatively  omitted  in  the  findings  of  the  court;  the 
question  of  whether  or  not  the  methods  of  navigation  directly  resulted  in  the  stranding 
of  the  vessel  is  important  only  in  so  far  as  the  quantum  of  punishment  is  involved. 
If  it  is  considered  that  the  accused  was  negligent  and  inefficient  in  his  performance  of 
duty  as  navigator,  the  culpability,  in  so  far  as  the  specification  is  concerned,  is  fully 
established  entirely  without  the  concluding  clause.  A  navigator  may  be 'culpable 
and  negligent  and  inefficient  without  involving  the  ship,  even  in  danger  of  grounding. 
The  fact  of  grounding  therefore  merely  affects  the  gravity  of  the  offenses. 

As  stated  above,  it  is  not  known  upon  which  of  the  above  grounds  the  court  arrived 
at  its  acquittal.  It  is  not  believed  that  it  was  on  account  of  lack  of  responsibility  of 
the  accused  as  navigator.  It  is  not  believed  that  the  court  considered  that  the 
navigational  methods  employed  were  such  as  the  Government  has  a  right  to  require 
of  officers  charged  with  that  responsible  duty.  A  careful  review  of  the  case  leads  to 
the  conviction  that  the  court  acquitted  him  because  of  his  comparative  youth,  and 
because  he  was  associated  on  the  bridge  with  the  commanding  officer  and  division 
commander,  whom  it  appears  were  practically  as  familiar  with  the  situation  as  was 
the  navigator.  If  this  is  correct,  in  the  opinion  of  the  department  such  a  verdict  is 
not  justified,  does  not  protect  the  Government  in  the  navigation  of  its  vessels,  would 
establish  an  undesirable  precedent,  and  would  not  carry  out  the  spirit  of  the  Navy 
Regulations,  which  impose  concurrent  responsibility  upon  the  navigator  for  the 
safety  of  the  ship.  Where  concurrent  responsibility  is  imposed  by  the  regulations 
upon  several  individuals  and  an  accident  occurs,  it  is  illogical  to  hold  that  a  junior  is 
guiltless  because  a  senior  was  present.  The  concurrent  responsibility  which  has  been 
established  by  the  Navy  Regulations  is  an  additional  safeguard  of  the  Government 
in  keeping  its  ships  afloat;  not  to  recognize  this  in  effect  nullifies  this  feature  of  the 
regulations.  In  such  cases  an  endeavor  to  place  the  burden  of  entire  responsibility 
upon  some  one  individual  results  in  confusion  and  a  miscarriage  of  justice.  The  only 
logical  method  is  to  hold  each  individual  concerned  responsible,  not  for  the  accident 
itself,  but  for  neglect  of  such  of  his  individual  duties  as  may  have  contributed  to  the 
accident. 

For  the  above  reasons  the  department  considers  that— 

(1)  The  accused  was  responsible  for  the  efficient  performance  of  duties  of  navigator 
which  had  been  assigned  to  him  by  the  commanding  officer; 

(2)  The  methods  of  navigation  employed  by  him,  although  they  were  perfectly 
known  to  the  commanding  officer  and  the  division  commander,  were  nevertheless 
not  such  as  the  Government  can  approve  as  being  efficient; 

50756°— 17 27 


416  11  NAVIGATION. 

(3)  If  the  «x>ve  le  correct,  he  is  culpable,  whether  or  not  they  contributed  directly 
to  the  grounding  onthe  ship. 

In  view  of  the  ablve  the  department  would,  under  ordinary  circumstances,  return 
the  record,  totethertwith  a  statement  of  the  law  governing  the  case,  to  the  court  for  a 
revision  of  its  nndinks  and  acquittal.  The  court  in  this  case ,  however,  is  composed  of 
officers  of  high  rank  ivho  have  been  absent  from  their  regular  stations,  where  urgently 
needed,  for  amapprAiable  length  of  time,  and  the  convening  of  this  court  in  revision 
would  detainwmi  further.  The  department,  therefore,  haying  in  mind  the  best 
interests  of  the  service  at  large,  approves  the  proceedings,  but  disapproves  the  findings 
and  acquittal.  C.  M.  0. 24, 1916. 

58.  Same— ''From  a  review  of  this  case,  the  commander  in  chief  observes  that  stress  was 

laid  on  the  inexperience  of  the  accused  and  the  fact  that,  as  the  commanding  officer 
was  on  the  bridge,  he  (the  accused)  had  a  very  small  part  to  perform  in  navigating 
the  vessel.  No  matter  who  is  conning  a  vessel,  it  is  the  plain  duty  of  the  officer  acting 
as  navigator  to  keep  track  of  the  courses  steered  and  the  rim  of  the  vessel;  and  if  he 
fails  to  use  the  methods  and  instruments  for  fixing  the  position  which  are  at  his  com- 
mand, and  further  fails  to  notify  the  captain  when  practicable  that  he  believes  the 
ship  to  be  running  into  danger,  he  fails  in  his  whole  duty."  C.  M.  O.  33,  1913,  1-2, 
quoted  with  approval  by  the  Secretary  of  the  Navy  in  C.  M.  O.  24, 1916. 

59.  Navigating  chart.    See  NAVIGATION,  71. 

60.  Navigational  aids.   See  NAVIGATION,  88. 

61.  Navigational  lights.    C.  M.  O.  24, 1911. 

62.  Navigational  methods.   C.  M.  0. 24, 1916, 4;  NAVIGATION,  57. 

63.  "Nerve" — On  part  of  commanders  of  torpedo  boats.    See  COLLISION,  6. 

64.  Officer  of  the  deck.   See  OFFICER-OF-THE-DECK;  ORDERS,  48, 49. 

65.  Orders — With  reference  to  navigation  by  division  commanders  and  commanders  in 

chief.   See  NAVIGATION,  15,31;  G.  C.  M.  Rec.  32389,  pp.  87-88. 

66.  Outlying  aids  to  navigation.    C.  M.  O.  3,  1915. 

67.  Overtaking  another  vessel— The  officer  of  the  deck  was  tried  by  general  court-martial. 

He  carelessly  disregarded  one  of  the  simplest  rules  of  the  road.  He  overtook  and  ran 
into  a  much  slower  vessel  in  the  open  sea  in  broad  daylight.  C.  M.  O.  29, 1910. 

68.  Patent  log.   See  PATENT  LOG. 

69.  Pelorus.    C.  M.  O.  27, 1916.  2;  G.  C.  M.  Rec.  32389,  p.  6. 

70.  Piloting  at  night.   See  NAVIGATION,  19. 

71 .  Position  of  ship — Commanding  officer  failed  to  require  the  position  of  the  ship  to  b« 

accurately  plotted  on  navigating  chart  in  consequence  of  which  neglect  the  ship  ran 
on  a  reef.  C.  M.  O.9, 1911.  See  also  C.  M.  O.  24, 1911;  NAVIGATION.  10, 31,  72. 

72.  Same— Commanding  officer  "failing  to  plot  the  position  of  the  said  ship  on  the  chart, 

etc.    G.C.M.  Rec., 32389. 

73.  Precautions  to  avoid  collision.    See  COLLISION,  17. 

74.  Precautionary  orders— By  commanding  officers.    See  COLLISION,  19. 

75.  Range  lights.   See  NAVIGATION,  19. 

76.  Rescue— If  a  naval  vessel  collides  with  another  vessel  the  commanding  officer  must 

do  all  practicable  to  rescue  persons  from  the  other  vessel.  See  COLLISION,  22;  COM- 
MANDING OFFICERS,  34. 

77.  Responsibility,  concurrent.    C.  M.  O.  24,  1916,  4.    See  also  NAVIGATION,  57. 

78.  Responsibility  of   commanding  officers.    See  COLLISION,  6,  19;    COMMANDING 

OFFICERS,  38;  NAVIGATION,  15-19, 31, 53, 57, 71,  72, 82, 86, 88. 

79.  Rules  of  the  road.    C.  M.  0. 38, 1905;  29, 1910, 2.    See  also  NAVIGATION,  67. 

80.  "Shake-down"  cruise.   See  NAVIGATION,  16. 

81.  Shifting  berth.    C.  M.  0. 9, 1913. 

82.  Soundings— Inasmuch  as  unqualified  approval  of  the  court's  action  in  this  case  might 

tend  to  establish  the  principle  that  an  officer  may  wholly  disregard  requirements  of 
the  regulations  and  ordinary  precautions  intended  to  promote  the  safety  of  the  vessel 
under  his  command  and  yet  avoid  responsibility,  the  department  deems  it  necessary 
to  emphasize  the  vital  importance  of  the  unfailing  observance  of  one  of  the  greatest 
safeguards  known  to  seamen,  namely  taking  soundings. 

Article  472.  paragraph  1,  Navy  Regulations,  1900,  prescribes  as  one  of  the  command- 
ing officer's  duties:  ''When  under  way  on  soundings,  he  shall  have  casts  of  the  lead 
taken  frequently  if  necessary  to  verify  the  position." 

Under  this  regulation  it  is  true  that  the  commanding  officer  must  assume  the 
responsibility  of  determining  whether  frequent  soundings  are  necessary  to  verify  the 
position  of  his  vessel,  but  if  he  fails  to  adopt  this  precaution  when  necessary  he  assumes 
the  risk  of  disaster.  The  safety  of  his  vessel  being  at  stake,  all  doubt  as  to  whether 
any  precaution  prescribed  by  the  regulations  ought  or  ought  not  to  be  taken  should 


NAVIGATION.  f  417 


be  resolved  in  favor  of  the  precautionary  measure.  Thefvesself  should  be  given  the 
benefit  of  the  doubt.  » 

It  was  contended  by  the  defense  that  casts  of  the  leadfdo  ncl,  in  the  case  of  small 
vessels  of  light  draft,  give  warning  of  danger  in  sufficient,  timf  to  be  of  value.  The 
purpose  of  the  clause  of  the  regulations  referred  to.  howe«r,  is  not  so  much  to  provide 
a  means  of  disclosing  imminent  danger  as  to  fix  the  position  of  we  vessel  with  a  view 
to  avoiding  such  dangers.  V.  S 

It  is  noted  that  the  discretion  vested  in  the  commanding  officer  by  this  regulation  is 
limited  to  the  question  of  the  necessity  of  soundings  in  order  to  verify  position.    If 
the  position  of  the  vessel  is  known  beyond  question,  frequent  soundings  are  unneces- 
sary and  are  not  required  to  be  taken.    The  qualifying  words  of  the  regulation,  how- 
ever, do  not  go  beyond  this.    The  requirement  is  not  that  frequent  soundings  shall 
be  taken  if  practicable.    There  is  no  exception  based  on  the  difficulty  of  taking  sound- 
ings in  the  case  of  a  small  vessel  laboring  in  a  heavy  sea.    While  the  testimony  intro- 
duced in  this  case  tends  to  show  that  soundings  made  under  the  existing  conditions 
would  have  been  difficult  and  their  resu'ts  of  questionable  value,  it  is  manifestly 
the  dutyof  the  officer  responsible  for  the  safety  of  a  vessel  to  make  at  least  the  attempt 
_^_in  such  cases  to  avail  himself  of  all  safeguards  prescribed  by  the  regulations.    _  mm  ..-. 
~~~  With  due  regard  for  the  difficulties  existing  in  this  case — a  small  vessel  laboring  in  \ 
a  heavy  sea — the  department  is  advised  and  the  evidence  before  the  court  indicates,  I 
that  soundings  could  have  been  taken,  and  the  department  has  concluded,  after   { 
careful  consideration,  that  it  was  clearly  the  duty  of  the  accused  to  bring  the  vessel    •; 
head  to  sea  and  obtain  the  best  soundings  practicable  in  the  circumstances.  Whether    I 
or  not  this  would  have  prevented  the  loss  of  the  vessel,  the  soundings  obtained  would    | 
have  had  some  value,  and  the  action  would,  at  all  events,  have  shown  that  the  vessel  j 
v.-;  is  lost  in  spite  of  all  seainanlike  precautions.  •     — -— — — nnrT*' 

'"There  being  extenuating  circumstances  in  this  case,  however,  and  not  wishing  to 
act  in  the  direction  of  severity,  against  the  opinion  01  a  court  composed  of  seagoing 
officers  of  experience,  the  proceedings  and,  subject  to  the  foregoing  remarks,  th« 
findings  and  acquittal  in  the  case  are  approved.  C.  M.  O.  50,  1903,  3-4.  See  ofo» 
C.  M.  0. 30, 1909;  24,1911;  2, 1915;  24, 1916;  G.  C.  M.  Rec.  32389;  NAVIGATION,  17, 18. 

83.  "Submerged  and  unmarked  wreck."    G.  C.  M.  Rec.,  32390;    File  26251-12138, 

J.  A.  O.,  Aug.  8, 1916. 

84.  Tidal  currents.    G.  C.  M.  Rec.  32389. 

85.  "Timing  the  flashes  of  a  light."    C.  M.  O.  27, 1916,  2. 

86.  Torpedo  boats — Torpedo  boat,  standing  for  an  anchorage  in  the  vicinity  of  four  other 

vessels  of  the  flotilla,  was  not  informed  by  signal  or  otherwise,  by  the  flotilla  com- 
mander, as  to  where  it  should  anchor,  or  that  there  had  been  any  change  in  the  dis- 
position of  the  vessels  of  the  flotilla  since  the  early  morning  when  it  departed.  Held- 
This  omission  of  duty  on  the  part  of  another  does  not  relieve  the  commanding  officer 
of  the  torpedo  boat  of  the  responsibility  of  handling  his  vessel,  on  such  occasion  with 
great  precaution  and  care.  C.  M.  O.  5, 1906. 

87.  Same — "Nerve"  in  maneuvering.    See  COLLISION,  6. 

88.  Torpedo-boat  destroyers— "The  commander  in  chief  observes  that  the  accused  in 

this  case  plead  guilty  to  both  charges,  and  that  considerable  evidence  in  extenuation 
was  introduced,  mainly  to  the  effect  that  the  ordinary  methods  of  navigation  are 
employed  with  difficulty  on  destroyers  making  high  speeds. 

''The  present  case  presents  to  the  commander  in  chief  an  example  of  extremely 
careless  and  haphazard  navigation.  Modern  destroyers  are  large  and  costly  torpedo 
vessels  carrying  comparatively  large  crews;  and  their  value,  and  the  number  of  lives 
on  board,  are  certainly  sufficient  reasons  for  demanding  careful  navigation. 

"The  *  *  *  left  a  known  anchorage,  had  several  navigational  aids  in  plain 
sight,  and  yet,  after  running  only  7  or  8  miles  in  smooth  waters,  not  only  failed 
to  pass  safely  through  a  wide  and  deep  passage,  but  missed  it  by  over  a  mile. 
If  this  is  an  example  of  the  methods  usea  in  other  vessels  of  her  class  the  commander 
in  chief  can  not  but  fear  the  consequences.  To  him  the  grounding  is  an  evidence  of 
gross  carelessness— ;an  utter  disregard  of  the  most  ordinary  precautions  used  by 
seafaring  men — which,  had  loss  of  life  occurred  or  the  vessel  been  seriously  injured, 
would  nave  been  absolutely  without  extenuation.  Those  officers  who  occupy 
similar  positions  of  responsibility  should  not  fail  to  heed  the  warning  against  care- 
lessness and  overconfidence."  C.  M.  0. 32, 1913, 1-2. 

89.  Typhoon  signals.   C.  M.  0. 7. 1915. 

90.  Warning— Of  bad  weather.    See  NAVIGATION,  91. 


418  NAVIGATION. 


91.  Watch—  "Faillig  twkeep  a  regular  and  proper  watch  either  for  signals  or  for  radio 

messages,"  wlruing  of  bad  weather.    G.  C.  M.  Rec.  32390. 

92.  Watch  officer*   See  DRUNKENNESS,  99;  WATCH  OFFICERS. 

93.  Weather—  Fogftc  aitf  misty  weather.    C.  M.  O.  27,  1916;  G.  C.  M.  Rec.  32389. 

94.  Whistling  buoy.    G.  C.  M.  Rec.  32389,  p.  6. 

95.  Wrecks—  "Submerged  and  unmarked  wreck."    G.  C.  M.  Rec.  32390;  File  26251-12138; 

J.  A.  G.,  Aug.  8,  1916.    See  also  WRECKS. 

NAVIGATOR.    See  NAVIGATION,  55-58. 

NAVY  NURSE  CORPS.    See  BUEEAU  OP  MEDICINE  AND  SUKGEEY,  6;  MEDICAL  OFFI- 
CERS OF  THE  NAVY,  11. 

NAVY  PAY  OFFICE. 

1.  Washington,  D.  C.,  at—  ;Is  not  one  of  the  "bureaus  and  offices"  of  the  Navy  Depart- 
ment within  the  meaning  of  a  contract  to  deliver  ice  to  the  Navy  Department  and 
its  various  bureaus  and  offices.  File  6482,  July  26,  1904. 

NAVY  PAY  TABLES.  ' 

1.  Deck  Courts—  Navy  pay  tables  should  be  disregarded  in  adjudging  loss  of  pay  by  deck 
court.  C.  M.  O.  34,  1913,  6. 

NAVY  REGISTER. 

1.  Printing  of—  Section  73  of  the  public  printing  act  of  1895  (28  Stat.  616)  provides  for  the 

printing  of  1000  copies  of  the  Navy  Register  for  the  use  of  the  House  of  Representa- 
tives. and  500  for  the  Senate.  The  Secretary  of  the  Navy  is  not  required,  by  law,  to 
publish  a  Navy  Register.  15  J.  A.  G.,  96. 

2.  Status  of  officer—  The  position  of  an  officer's  name  in  the  official  register  of  the  Navy 

does  not  affect  such  officer's  status  nor  confer  upon  him  or  any  other  officer  any  right 
of  promotion  or  advancement  of  rank.  File  5038-18,  19,  J.  A.  G.,  Feb.  29,  1912.  See 
also  File  27231-8,  Feb.  7,  1911. 

NAVY  REGULATIONS.    See  REGULATIONS,  Navy. 

NAVY  YARD. 

1.  Command  —  Succession  to.    See  COMMAND,  14,  15. 

NEGLECT  OF  DUTY. 

1.  Enlisted  men—  Charged  with.    C.  M.  O.  5,  1911,  7;  G.  C.  M.  Rec.  31705;  31714;  31857; 

31930. 

2.  Officers—  Charged  with.    C.  M.  O.  21,  1908;  26,  1908;  35,  1908;  30,  1909;  19,  1910;  6,  1911; 

11,  1911;  15,  1911;  24,  1911;  32,  1911;  7,  1913;  9,  1913;  18,  1913;  33,  1913;  39,  1913;  3,  1914; 
13,  1914;  19,  1914;  28,  1914;  35,  1915;  45,  1914;  46,  1914;  7,  1915;  19,  1915;  32,  1915;  41,  1915; 
45,  1915;  25,  1916. 

3.  Same  —  Charged  with  "Culpable  negligence  and  inefficiency  in  the  performance  of 

duty"  and  found  guilty  in  a  less  degree  than  charged,  of  "  Neglect  of  duty."  C.  M.  O. 
8,  1915,  2. 

4.  Paymaster's  clerk—  Charged  with.    C.  M.  O.  26,  1912,  3. 

5.  Warrant  officers—  Charged  with.    C.  M.  O.  32,  1910;  12,  1912;  15,  1912;  18,  1917. 

6.  Warrant  officers  (commissioned)—  Charged  with.   C.  M.  O.  27,  1908;  12,  1914. 

NEGLIGENCE. 

1  .  Counsel—  Effect  of  negligence  of  counsel  for  accused.    See  COUNSEL,  40. 

2.  Disbursing  officers  —  Negligence  with  reference  to  embezzlement.    See  EMBEZZLE- 

MENT, 18. 

NEGLIGENCE  IN  OBEYING  ORDERS. 

1.  Officers—  Charged  with.  C.  M.  O.  203,  1902;  15,  1914.  See  also  C.  M.  O.  55,  1894;  117, 
1907. 

NEGLIGENCE  IN  THE  PERFORMANCE  OF  DUTY. 

1.  "Culpable  inefficiency  in  the  performance  of  duty"  —  "Negligence  in  the  per- 
formance of  .duty"  is  a  lesser  degree  than.  See  CHARGES  AND  SPECIFICATIONS,  71; 
GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  12,  38. 

NEGLIGENCE  OR  CARELESSNESS  IN  OBEYING  ORDERS,  ETC. 

1.  Specific  intent—  Not  required.    See  INTENT,  2. 

"NERVE"  ON  PART  OF  TORPEDO  BOAT  COMMANDERS.    See  COLLISION,  6, 


NOLLE  PEOSEQUI.  419 


1.  Nervous  disorder— Not  a  mental  disease.    C.  M.  0. 24, 1914, 1 

NEUTRAL.    See  also  PUBLICATION. 

1.  Engaged  in  business — In  an  enemy's  country  during  war  {^regarded  as  a  citizen  or 

subject  of  that  country.  C.  M.  O.  29, 1915, 11.  See  also  CITIZENSHIP,  18;  EXPATRIA- 
TION, 2;  RETIRED  OFFICERS,  31,  32. 

2.  Internment — Of  vessels  in  neutral  ports.    See  INTERNMENT. 

3.  Violation  of— Newspaper  clippings.    See  File  28573-46:1.  June  6, 1916. 

4.  War  in  Europe — Officers  commenting  publicly  on  military  or  political  situation  in 

Europe — Could  be  tried  by  general  court-martial  under  "Conduct  to  the  prejudice 
of  good  order  and  discipline."  File  28517-24,  J.  A.  G.,  Mar.  5, 1915. 

NEW  TRIAL.    See  File  6674-38,  April  26,  1907;  1  Op.  Atty.  Gen.,  233. 
NEW  YORK  STATE  CAMPAIGN  BADGE.    See  CAMPAIGN  BADGES,  2. 

NEWFOUNDLAND. 

1.  Letters — Newfoundland  is  not  a  part  of  Canada,  but  a  separate  Province  of  the  British 
Empire;  and  official  letters  to  Newfoundland  are  required  to  be  prepaid.  File 
7538-176,  Aug.  2,  1915. 

NEWSPAPERS.    See  also  PUBLICATION. 

1.  "  Conduct  unbecoming  an  officer  and  a  gentleman  "—Officer  tried  by  general 

court-martial  for  writing  an  abusive  letter  to.  See  CONDUCT  UNBECOMING  AN  OFFICER 
AND  A  GENTLEMAN.  4. 

2.  Correspondents— Officers  as.    See  NEWSPAPERS,  5. 

3.  Evidence — An  accused  officer  was  charged  with  "Scandalous  conduct  tending  to  the 

destruction  of  good  morals."  The  judge  advocate  offered  in  evidence  a  copy  of  a 
newspaper  which  contained  accounts  of  the  scandalous  conduct  of  the  accused. 
Counsel  objected  on  the  ground  of  hearsay.  Judge  advocate  replied  that  the  news- 
paper would  "show  how  the  alleged  scandal  was  desseminated  over  the  country," 
etc.  The  objection  was  sustained  by  the  court.  The  department  held:  That  "the 
court  clearly  erred  in  this  ruling.  The  best  evidence  that  the  conduct  of  the  accused 
aid  bring  scandal  and  disgrace  upon  the  naval  service  was  the  copy  of  a  newspaper 
showing,  as  contended  by  the  judge  advocate,  'how  the  alleged  scandal  was  dissemi- 
nated over  the  country.'  A  newspaper,  in  such  a  case,  is  offered  to  the  court  not  as 
evidence  of  the  facts  stated  therein  which  must  be  otherwise  established,  but  as 
evidence  of  the  publicity  which  was  given  the  scandal."  C.  M.  O.  4, 1913,  55. 

4.  Information — Furnishing  of  information  pertaining  to  the  Navy  or  naval  service, 

to  newspapers,  for  publication,  by  persons  belonging  to  the  Navy  or  under  the  Navy 
Department.  File  4496-57,  June  4,  1907. 

5.  Officers — Acting  as  correspondent  for— An  officer  of  the  Marine  Corps  was  authorized  to 

act  as  correspondent  for  certain  papers  during  the  trip  of  the  battleship  fleet  from  the 
Atlantic  to  the  Pacific  coast.  File  2310-144,  Oct.  30,  1907. 

6.  Purchase  of — Only  after  advertisement.    See  NAVAL  ATTACHES,  4. 

NEXT  OF  KIN. 

1.  Medical  records — Deceased  enlisted  men — Delivered  to.    See  MEDICAL  RECORDS. 

NOLLE  PROSEQUI. 

1.  Courts-Can  not  enter.    See  NOLLE  PROSEQUI,  9. 

2.  Defense  may  not  enter— It  is  not  competent  for  the  defense  to  enter  nolle  prosequi 

to  any  charge  or  specification.    C.  M.  O.  42,  1914,  6. 

3.  Definition — A  nolle  prosequi  (or  nol.  pros., or  withdrawal,  or  discontinuance)  is  "an  entry 

made  on  the  record  by  which  the  prosecutor  or  plaintiif  declares  that  ho  will  proceed 
no  further."  (2  Bouv.  503.  See  also,  C.  M.  0. 14,  1910,  p.  10.  File  26251-8038  and 
26251-9538.)  C.  M.  O.  42, 1914,  6. 

4.  "Desertion" — Charge  and  specification  of  "Desertion"  withdrawn  and  "Absence 

from  station  and  duty  without  leave"  substituted.  G.  C.  M.  Rec.  30832.  See  also 
File  26251-12396:1. 

5.  Desertion  of  accused — In  view  of  the  desertion  of  the  accused  the  case  was  withdrawn . 

File  26251-11493. 

6.  Erroneously  used — The  expression  "nolle  prosequi"  was  evidently  used  erroneously 

in  a  case  from  misapprehension  as  to  the  meaning  of  the  term.  The  fact  was .  however, 
that  the  defense  entered  an  objection  to  the  third  and  fourth  charges  on  the  ground 
that  the  specifications  thereunder  were  identical,  citing  specifically  the  court-martial 


1 


420  NOLLE   PROSEQUI. 

i 

order  in  which  the  department's  policy  was  announced  as  being  opposed  to  duplicat- 
ing charges  based  on  the  identical  facts,  where  there  are  no  aggravating  circumstances 
set  forth  unden  the* one  charge  which  distinguishes  it  from  the  other.  C.  M.  O.  42, 
1914,  6-7. 

7.  Escape— In  view  of  the  escape  of  a  naval  prisoner  while  awaiting  trial  by  general  court- 
martial  the  charge  and  specification  thereunder  were  withdrawn.  File  26251-12240, 
Sec.  Navy,  Aug.  24, 1916. 

3.  Government  may  withdraw — "In  the  absence  of  express  limitation  the  Government 
may  always  withdraw  charges  which  it  has  made."  (Street  v.  U.  8.,  133  U.  S.  305). 
See  File  26251-11493. 

After  the  accused  was  brought  to  trial  it  was  held  his  fraudulent  enlistment  had 
been  constructively  ratified  by  restoring  him  to  duty.  While  it  was  held  that  the 
fact  of  restoration  to  duty  could  not  bar  disciplinary  proceedings  for  the  offense  of 
fraudulent  enlistment  if  the  department  desired  to  bring  him  to  trial  therefor  as  a 
matter  of  policy  the  charge  and  specification  were  withdrawn.  File  26251-5539:1, 
Sec.  Navy,  Jan.  24,  1914. 

In  one  case  a  charge  and  specification  alleging  desertion  were  withdrawn  by  tele- 
graph and  accused  restored  to  duty.  File  26251-12396:1,  Sec.  Navy.  Sept.  27, 1916. 

Where  charges  and  specifications  are  withdrawn  the  accused  should  not  be  furnished 
with  a  copy  of  the  record  of  proceed  ings.  See  RECORDOF  PROCEEDINGS,  36. 

9.  Judge  advocate— In  a  prosecution  before  a  naval  court-martial  even  the  judge  advocate 
or  the  court  can  not  withdraw  a  charge  or  specification  without  authority  from  the 
Secretary  of  the  Navy  or  other  convening  authority.  (C.  M.  O.  16, 1911,  pp.  3-4) 
C.  M.  O.  42,  1914.  6. 

10.  Jurisdiction  of  civil  authorities— Charge  of  "Desertion"  preferred  September  7, 

1911,  was  temporarily  withdrawn  while  accused  was  under  jurisdiction  of  civil  au- 
thorities (indicted  for  murder).  Accused  was  tried  on  original  charges  and  specifica- 
tions on  February  24,  1916,  at  Norfolk,  Va.  Pleaded  "Guilty"  and  sentenced. 
G.  C.  M.  Rec.  31774. 

11.  Physical  condition  of  the  accused— Charges  and  specifications  were  withdrawn  in 

view  of  the  physical  condition  of  the  accused. 

12.  Quorum — In  view  of  the  fact  that  the  department's  order  to  enter  a  nolle  prosequi  in 

the  case  of  the  above-named  man  amounts  in  effect  to  a  withdrawal  of  the  charges 
from  prosecution;  is  an  order  which  binds  the  judge  advocate,  the  accused,  and  the 
court  alike;  does  not  prejudice  the  rights  of  the  accused;  and  requires  no  action  by 
the  court,  the  department  does  not  consider  that  the  absence  of  a  legal  quorum  in  the 
court  will  prevent  the  entering  of  a  nolle  prosequi  in  such  case.  File  26251-8038:7, 
Sec.  of  Navy,  Feb.  14. 1914. 

13.  Revised  charges  ana  specifications — Charges  and  specifications  of  "Fraudulent 

enlistment"  were  withdrawn  and  new  ones  substituted.    G.  C.  M.  Rec.  31500. 

14.  Substitution.   See  NOLLE  PROSEQUI,  4. 13. 

15.  Summary  court-martial — The  general  court-martial  charge  and  specification  were 

withdrawn  by  order  of  the  Secretary  of  the  Navy  and  the  accused  was  tried  by  sum- 
mary court-martial.  File  26251-11538. 

16.  Temporarily  withdrawn.   See  NOLLE  PROSEQUI,  10. 

NOLO  CONTENDEBE. 

1.  Definition — The  plea  of  nolo  contendere  is  not  a  plea  of  "guilty,  but  without  crimi- 
nality." It  is  a  confession  of  guilt  of  the  offense  alleged,  but  forbids  the  Government 
from  using  the  plea  of  "guilty  "  as  evidence  of  guilt  should  a  civil  suit  be  entered 
subsequently  against  the  accused  to  recover  pay  and  allowances  given  accused  (in 
hisfraudulent  enlistment).  The  court  erred  in  not  accepting  the  plea  and  in  direct- 
ing the  judge  advocate  to  enter  a  plea  of  "not  guilty  "  in  lieu  thereof,  and  proceeding 
with  the  trial. 

There  is  no  difference  in  legal  effect  between  this  plea  and  that  of  guilty,  at  least 
with  regard  to  all  the  proceedings  in  an  indictment.  (United  States  v.  Hartwell 
(U.  S.)  26  Fed.  Cas.,  196, 199.) 

Under  the  heading  of  Nolo  contendere,  on  page  4815,  vol.  5,  of  Words  and  Phrases 
Judicially  Denned,  the  following  appears: 

"A  plea  of  nolo  contendere  is  an  implied  confession  of  guilt,  and  has  the  same  effect 
as  a  plea  of  guilty,  so  far  as  the  proceedings  on  an  indictment  are  concerned,  and  hence, 
a  defendant  who  has  been  sentenced  on  such  a  plea  is  to  be  deemed  convicted  of  the 
offense  for  which  he  was  indicted.  (Commonwealth  v.  Horton,  9  Pick. ,  206;  Common- 
wealth v.  Ingersoll,  145  Mass.,  381, 14  N.  E.,  449.)  In  the  latter  case  it  is  said:  'A  plea 


NOLO   CONTENDERE.  421 

of  nolo  contendere,  when  accepted  by  the  court,  is,  in  effect  upon  the  case, equivalent 
to  a  plea  of  guilty.  It  is  an  implied  confession  of  guilt,  only,  and  can  not  be  used 
against  the  defendant  as  an  admission  in  any  civil  suit  for  the  same  act.  The  judg- 
ment of  conviction  follows  upon  such  a  plea  as  well  as  upon  a  plea  of  guilty,  and  such 
a  plea,  if  accepted,  can  not  be  withdrawn  and  a  plea  of  not  guilty  entered,  except  by 
leave  of  the  court.  If  such  plea  is  tendered,  the  court  may  accept  or  decline  it,  in  its 
discretion.  If  the  plea  is  accepted,  it  is  not  necessary  or  proper  that  the  court  should 
adjudge  the  party  guilty,  for  that  follows  as  a  legal  inference  from  the  implied  con- 
fession, but  the  court  proceeds  thereon  to  pass  the  sentence  of  the  law.'  (Barker  v. 
Almy,  39  AtL.  185.  186,  20  R.  I.,  367,  citing  State  v.  Con-way,  38  Atl.,  656,  20  R.  I., 
270.)"  C.  M.  0.  26, 1910, 5-6. 

NOMINAL,  PUNISHMENT. 

Public  reprimand  Is.    C.  M.  O.  8, 1915, 3.    See  also  PUBLIC  REPRIMAND,  11. 

NONPAYMENT  OF  DEBTS.    See  DEBTS. 

NOSTALGIA. 

1.  Midshipman— Committed  suicide  while  suffering  from  acute  nostalgia.  Held:  Not 
line  of  duty  and  misconduct.  File  26250-812. 

NOTARY  PUBLIC. 

l.  Recruiting— Irregularities  of  a  notary  public  in  connection  with  enlistment  of  an  appli- 
cant. File  7657-299,  J.  A.  G.,  Aug.  11,  1915. 

NULL  AND  VOID. 

1.  Commissions.    See  COMMISSIONS,  20. 

2.  General  court-martial  proceeding— Held  null  and  void.    C.  M.  O.  4,  191. 11.    See 

also  C.  M.  O.  33,  1914,  5. 

NUMBERS  IN  SENTENCES. 

1.  Words  and  figures— The  sentence  must  be  recorded  by  the  judge-advocate's  own 
hand  and  must  be  free  from  erasures  and  interlineations.  Numbers  in  the  sentence 
should  be  expressed  both  by  words  and  figures.  C.  M.  O.  1, 1911,  5;  19, 1911,  5;  1, 
1913,  5. 

NUMBERS,  ADDITIONAL.    See  ADDITIONAL  NUMBERS. 

NUMBERS,  LOSS  OF.    See  also  CONVENING  AUTHORITY,  50. 

1.  Foot  of  list— Sentences  which  reduced  an  officer  to  the  foot  of  the  list.    C.  M.  O.  47, 

1900,  2;  43, 1904,  2;  38, 1908;  2,  1907,  1;  3,  1911;  48, 1910;  20,  1910;  25,  1910;  3, 1911;  4,  1911; 
27,  1911;  6,  1912;  40,  1913. 

2.  Foot  of  list  and  there  remain  until  a  certain  loss  of  numbers  sustained.    C. 

M.  O.  17,  1904,  2;  2,  1907;  20,  1910;  4,  1911;  17,  1915,  1;  14,  1915. 

3.  Same— Where  an  officer's  position  as  the  Navy  Register  will  not  permit  of  his  being 

reduced  the  numbers  determined  upon,  the  court  should  place  him  at  the  foot  of 
the  list  with  the  proviso  that  he  is  to  remain  in  that  position  until  he  has  lost  the 
required  numbers.  C.  M.  O.  14,  1910,  16;  23,  1910,  7;  1914,  2. 

4.  Same^-Reviewing  and  convening  authority's  action,  where  a  sentence  of  dismissal 

is  mitigated.    See  NUMBERS,  Loss  OF,  10. 

5.  Form  of  sentence — A  sentence  involving  loss  of  numbers  as  "to  lose  ten  (10)  numbers 

in  his  grade,  to  take  rank  next  after,"  etc.,  is  objectionable,  in  view  of  the  fact  that 
it  is  practically  impossible,  because  of  changes  being  often  made  in  the  roster  of  officers, 
during  the  interim  between  the  publication  of  the  registers,  for  a  court  to  be  cogni- 
zant of  the  exact  status  of  an  officer  and  other  officers  junior  to  him  when  sentence 
is  adjudged.  Consequently,  it  sometimes  happens  that  the  terms  of  such  a  sen- 
tence, which  are  made  to  include  both  a  loss  of  numbers  and  also  that  the  officer 
sentenced  will  be  placed  in  a  certain  position  with  reference  to  a  specially  named 
officer,  are  conflicting,  in  that  loss  of  the  specified  numbers  may  not  accord  with 
reduction  to  the  position  next  after  the  designated  officer.  An  unqualified  phrase- 
ology, such  as,  "The  court,  therefore,  sentences  him, , ,  to  lose 

( — )  numbers  in  his  grade,"  is  preferable  in  such  sentences.    C.  M.  0. 14, 1910, 

16;  23,  1910,  7;  19,  1914,  2.    See  also  C.  M.  O.  18, 1917. 

6.  Same — While  the  Secretary  of  the  Navy,  in  mitigating  certain  sentences  involving 

loss  of  numbers,  has  designated  the  position  that  an  officer  will  take  in  the  roster, 
it  is  manifestly  improper  for  courts  to  do  so,  as  it  is  impossible  for  a  court  to  know 


422  NUMBERS,    LOSS    OF. 

the  date  that  the  sentence  will  be  approved  or  the  changes  that  may  be  made  in  the 
roster  by  the  time  of  such  approval.  C.  M.  O.  17,  1913;  18,  1913;  19,  1914,  2. 

7.  Same — The  following  court-martial  orders  contain  incorrect  phraseology  for  a  sentence 

involving  loss  of  numbers.  C.  M.  O.  67,  1902;  43,  1904,  2;  22,  1909;  43,  1909;  45,  1909; 
56.  1910;  18,  1910;  15,  1913;  17,  1913;  18,  1913;  2,  1914;  3,  1914;  8,  1914;  19,  1914. 

8.  Mitigation  of  dismissal  to  loss   of  numbers.     The  reviewing  authority  may 

mitigate  a  sentence  of  dismissal  to  loss  of  numbers.    See  DISMISSAL,  19. 

9.  Promotion — Loss  of  numbers  caused  by  suspension  from  promotion.    See  PROMOTION, 

10.  Reviewing  and  convening  authority's  action— Proper  form  where  it  is  desired  to 

place  officer  at  foot  of  list  and  wait  there  until  he  suffers  the  required  loss — "The 
proceedings,  findings,  and  sentence  of  the  general  court-martial  in  the  foregoing  case 
were  on approved  by  the  Secretary  of  the  Navy,  but  the  sentence  was  miti- 
gated so  that  will  be  placed  at  the  foot  of  the  list  of .  of  the 

with  the  rank  of ,  there  to  remain  until  he  shall  have  lost  a  total  of 

numbers  in  said  grade."    C.  M.  O.  31,  1914;  G.  C.  M.  Rec.  21628;  22910;  24405. 

11.  Sentence  executed  can  not  be  revoked— Where  an  officer  while  in  the  grade  of  second 

lieutenant  was  sentenced  to  loss  of  numbers,  was  not  pardoned,  but  subsequently 
promoted  to  the  grade  of  first  lieutenant,  the  department  held  that  the  sentence  was 
completely  executed,  and  that  there  was  no  way,  under  existing  law,  in  which  he 
could  be  restored  to  the  rank  he  held  before  he  was  sentenced.  File  26261-246,  Sec. 
Navy,  March  18, 1914.  See  also  File  26262-1794,  Jan.,  1917. 

12.  Same — An  officer  of  the  Navy  requested  the  reconsideration  of  the  department's  action 

in  approving  the  sentence  of  general  court-martial  in  his  case  and  mitigating  the 
sentence  to  loss  of  five  numbers.  In  reply  the  department  stated  that  "the  record 
was  very  carefully  reviewed  before  final  action  was  taken,  and  in  view  of  the  fact 
that  there  is  no  new  evidence  submitted  in  your  letter,  the  department  denies  your 
request  for  a  reconsideration  of  its  former  action."  File  26251-8101:  2,  Sec.  Navy, 
April  30,  1915. 

13.  Sentence  of  an  officer — Loss  of  numbers  is  more  appropriate  than  loss  of  pay  for 

a  commissioned  officer.    See  PAY,  100. 

14.  Suspension  from  promotion.    See  PROMOTION,  194-207. 

15.  Warrant  officer  (commissioned) — The  law  governing  the  promotion  of  a  commis- 

•  sioned  warrant  officer  does  not  give  him  the  right  of  promotion  by  reason  of  seniority 
(C.  M.  O.  21, 1910,  p.  17: 1, 1911,  p.  3;  37, 1914,  p.  1),  and  the  department  has  on  numer- 
ous occasions  expressed  its  disapproval  of  this  form  of  punishment  in  the  case  of  a 
commissioned  warrant  officer,  as  practically  it  is  without  any  effect.  (C.  M.  O.  37, 
1914,  p.  1.) 

In  order  that  there  may  be  uniformity  hi  the  sentences  adjudged,  it  is  desirable 
that  courts-martial  use  the  following  form  and  make  it  a  basis  for  adjudging  sentences 
in  the  cases  of  commissioned  warrant  officers: 

"The  court,  therefore,  sentences  him , ,  to  be  restricted  to  his  ship  or 

station  for  a  period  of ( )  months,  and  to  lose dollars  ($ — - — ) 

per  month  of  his  pay  for  a  period  of ( )  months."  (C.  M.  0 .  37, 1914, 1.) 

C.  M.  O.  52, 1914.  See  also  C.  M.  O.  48,  1915,  5;  18,  1917. 

16.  Same — Department  favors  loss  of  pay  rather  than  loss  of  numbers  for  commissioned 

warrant  officers.    C.  M.  O.  48,  1915,  5. 

NURSE  CORPS.    See  BUREAU  OF  MEDICINE  AND  SURGERY,  6.    MEDICAL  OFFICERS  OF 
THE  NAVY,  11. 

OATHS. 

1.  Additional  charges  and  specifications— Where  additional  charges  a»d  specifica- 

tions are  preferred  after  arraignment  no  legal  objection  could  exist  to  swearing  mem- 
bers again  as  to  the  additional  charges  and  specifications.  See  ADDITIONAL  CHARGES 
AND  SPECIFICATIONS,  2. 

2.  Adjutant  and  Inspector,  TJ.  S.  M.  C.    See  OATHS,  48. 

3.  Affidavits— Oaths  by  recruiting  officers  to  persons  who  desire  to  make  affidavits  as  to 

dates  and  places  of  birth  of  applicants  for  enlistment.    See  OATHS,  30,  39. 

4.  Administration  of.    See  OATHS,  48. 

5.  Army — Difference  between  oath  administered  to  members  of  an  Army  and  a  Navy 

general  court-martial.    See  ADDITIONAL  CHARGES  AND  SPECIFICATIONS.  1. 

6.  Boards  of  Inquest— Oaths  not  authorized.    See  BOARDS  OF  INQUEST,  4. 


OATHS.  423 

7.  Boards  of  Investigation— It  has  never  been  decided  that  boards  of  investigation  in 

the  Navy  have  general  authority  to  swear  witnesses  in  every  case.  Precedent  sup- 
ports the  conclusion  that  such  boards  are  authorized  to  administer  oaths  to  witnesses 
only  when  the  subject  matter  of  the  investigation  relates  to  frauds  on,  or  attempts 
to  defraud,  the  Government  or  any  irregularity  or  misconduct  of  any  officer  or  agent 
of  the  United  States."  (See  R.  S.  183;  Act,  Mar.  2, 1909,  31  Stat.,  951;  Feb.  13, 1911, 
36  Stat.,  898.)  File  3980-842,  Sept.  29,  1913. 

Navy  regulations.  1913,  R-316  (3-4)  provides  that  boards  of  investigation  will  not 
take  testimony  under  oath  except  in  important  cases  in  which  the  precept  expressly 
states  that  such  board  is  authorized  to  administer  oaths  to  witnesses  in  accordance 
with  the  above  law.  See  OATHS,  25, 26. 

On  May  27,  1915,  the  Superintendent  of  the  Naval  Academy  convened  a  naval 
board  of  investigation  authorized  to  take  testimony  under  oath  in  accordance  with 
R.  S.  183,  as  amended  by  Act,  Feb.  13,  1911.  File  5252-73,  Oct.  2,  1915. 

8.  Clerks  or  reporters  of  general  courts-martial— Should  be  sworn  by  the  judge  ad- 

vocate, not  by  the  president  of  the  court.  See  CLKKKS  OB  REPORTERS  OF  GENERAL 
COURTS-MARTIAL,  2. 

9.  Commanding  officer— Authority  to  administer.    See  OATHS,  48,  49. 

10.  Counsel,  special.    See  COUNSEL,  50. 

11.  Courts  of  Inquiry.   See  COURTS  OF  INQUIRY,  35,  30. 

12.  Courts-martial — Until  a  court  is  duly  sworn  according  to  law  it  is  incompetent  to 

perform  any  judicial  act,  except  to  hear  and  determine  challenges  against  its  members. 
C.  M.  O.  29, 1914, 3. 

13.  Deck  courts.   See  DECK  COURTS,  32.  58;  OATHS,  54. 

14.  Deck  court  recorder.    See  DECK  COURTS,  32. 

15.  Enlistment — The  applicant  for  enlistment  is  bound  by  the  terms  of  his  oath  of  en- 

listment which  he  executes  before  the  recruiting  officer.  Statements  not  in  harmony 
therewith  made  by  the  applicant  to  members  of  the  recruiting  party  before  executing 
the  oath,  but  not  made  to  the  recruiting  officer,  do  not  relieve  the  applicant  from  his 
statements  sworn  to  under  oath.  C.  M.  O.  12, 1911,  3-5. 

16.  Executive  officers— Authority  to  administer  oaths— Under  act,  March  3, 1901  (31  Stat., 

1086);  Navy  Regulations,  1913,  R-1536  (1);  the  executive  officer  of  a  naval  vessel  is 
authorized,  in  the  absence  of  his  commanding  officer,  to  administer  oaths  for  all 
purposes  of  naval  administration.  G.  C.  M.  Rec.  26651;  File  19037-38,  J.  A.  G.,  Sept. 
25, 1913.  See  also  OATHS,  49. 

17.  Same— When  the  commanding  officer  is  on  board  his  vessel,  the  executive  officer  is 

not  authorized  to  administer  oaths.  The  law  specifically  enumerates  the  different 
classes  of  officers  who  have  such  authority,  but  does  not  mention  therein  executive 
officers.  Expressio  unius  est  exclusio  alterius.  (See  WORDS  AND  PHRASES.)  File 
19037-38,  J.  A.  G.  Sept.  25,  1913. 

18.  Same — Executive  officers  not  in  command  can  not  exercise  authority  "to  administer 

oaths  on  papers  relating  to  naval  administration"  merely  because  they  may  inci- 
dentally and  occasionally  "act  as  recruiting  officer  of  the  ship."  (Naval  Instructions, 
1913.  1-2514  (3)).  As  shown  by  the  department's  letters  of  December  1,  1900,  to 
the  Naval  Committee  of  Congress  recommending  that  the  power  to  administer  oaths 
be  extended  to  recruiting  officers  "throughout  the  country,  where  there  is  no  com- 
manding officer  of  a  vessel  available  to  administer  the  required  oath."  (File  7286-00, 
J.  A.  G.,  Dec.  1, 1900.)  File  19037-38,  J.  A.  G.,  Sept.  25,  1913. 

19.  Foreign  country.    See  COUNSEL,  50. 

20.  General  courts-martial— Members  of  a  general  court-martial  take  the  following 

oath,  administered  by  the  judge  advocate,  which  is  required  by  section  1624,  Revised 
Statutes.before  proceeding  with  a  trial: 

"I,  A  B,  do  swear  (or  affirm)  that  I  will  truly  try,  without  prejudice  or  partiality, 
the  case  now  depending,  according  to  the  evidence  which  shall  come  before  the  court, 
the  rules  for  the  government  of  the  Navy,  and  my  own  conscience;  that  I  will  not  by 
any  means  divulge  ordisclosethe  sentence  of  the  court  until  it  shall  have  been  approved 
by  the  proper  authority:  and  that  I  will  not  at  any  time  divulge  or  disclose  the  vote 
or  opinion  of  any  particular  member  of  the  court,  unless  required  so  to  do  before  a  court 
of  justice  in  due  course  of  law."  (A.  G.  N.  40.) 

The  president  administers  the  following  oath  or  affirmation  to  the  judge  advocate: 

"I,  A  B,  do  swear  (or  affirm)  that  I  will  keep  a  true  record  of  the  evidence  given  to 

and  the  proceedings  of  this  court;  that  I  will  not  divulge  or  by  any  means  disclose 

the  sentence  of  the  court  until  it  shall  have  been  approved  by  the  proper  authority; 


424  OATHS. 

and  that  I  will  not  at  any  time  divulge  or  disclose  the  vote  or  opinion  of  any  particular 
member  of  the  court,  unless  required  so  to  do  before  a  court  of  justice  in  due  course  of 
law."  (A.  G.  N.  40.)  See  C.  M.  0. 4, 1914,  11;  File  26251-12159,  Sec.  Navy,  Dec.  9, 
1916,  p.  2. 

21.  Same — Order  of  administering.    See  OATHS,  27. 

22.  Same — Divulging  vote  or  opinion,  or  sentence.    See  CRITICISM  OF  COURTS-MARTIAL,  22, 

36;  OATHS,  47. 

23.  Hospitals— -  Where  a  passed  assistant  surgeon  on  duty  at  a  hospital  where  an  officer 

was  a  patient  administered  an  oath  to  such  officer  on  an  affidavit  by  him.  the  depart- 
ment stated :  "  It  is  proper  to  remark  that  there  is  no  authority  of  law  for  the  adminis- 
tration of  oaths  by  naval  officers,  except  in  certain  specific  cases,  of  which  the  one  in 
point  is  not  an  instance."  C.  M.  0. 99, 1893,  2. 

24.  Income  tax  returns — Officers  empowered  to  administer  oaths  are  authorized  to 

administer  the  necessary  oaths  for  the  execution  of  income  tax  returns.  File  28472-9; 
19037-45.  See  alto  U.  S.  v.  Bailey,  9  Pet.  238;  Act,  Oct.  3, 1913(38  Stat.  166-181),  with  ref- 
erence to  income  taxes. 

25.  Investigating  officer— Authorized  to  administer.    See  File  5421-11,  Sec.  Navy,  May  2, 

1907,  to  Solicitor.  See  also  R.  S.  183,  as  amended  by  act  March  2,1909  (31  Stat.  951), 
and  act  Feb.  13, 1911  (36  Stat.  898);  file  26251-8827:5;  16711,  July  12, 1911;  OATHS,  7. 

26.  Same — Any  officer  or  clerk  of  any  of  the  departments  lawfully  detailed  to  investigate 

frauds  on,  or  attempts  to  defraud,  the  Government,  or  any  irregularity  or  misconduct 
of  any  officer  or  agent  of  the  United  States,  and  any  officer  of  the  Armyj  Navy. 
Marine  Corps,  or  Revenue  Cutter  Service,  detailed  to  conduct  an  investigation,  ana 
the  recorder,  and  if  there  be  none,  the  presiding  officer  of  any  military,  naval,  or 
Revenue  Cutter  Service  board  appointed  for  such  purpose,  shall  have  authority  to 
administer  an  oath  to  any  witness  attending  to  testify  or  depose  hi  the  course  of  such 
investigation.  (Act  of  Feb.  13, 1911, 36  Stat.  898.)  See  also  OATHS,  7, ,25. 

27.  Irregularly  administered — From  an  examination  of  a  record  of  proceedings  of  a  general 

court-martial  the  department  noted  that  the  oath  was  first  administered  by  the 
judge  advocate  to  the  members,  and  then  to  the  judge  advocate  by  the  president, 
whereas  A.  G.  N.  40  provides  that  the  president  shall  administer  the  oath  to  the  judge 
advocate,  and.  this  oath  being  duly  administered,  each  member  of  the  court  shall  be 
sworn  by  the  judge  advocate.  This  mode  of  procedure,  although  irregular,  does  not 
invalidate  the  proceedings  of  the  court.  (See  13  Op.  Atty.  Gen.  374.)  C.  M.  O.  10, 
1893, 1. 

28.  Judge  advocates — Oath  administered  to  judge  advocate  by  president  of  general  court- 

martial.    See  OATHS,  20. 

29.  Same — Where  a  judge  advocate  is  relieved,  the  record  must  show  that  new  judge 

advocate  took  oath.    See  JUDGE  ADVOCATE,  92. 

30.  Same — The  judge  advocate  of  a  general  court-martial  is  authorized  to  administer  an 

oath  to  an  enlisted  man  when  the  affidavit  made  by  such  man  relates  to  the  loss  of 
certain  military  stores,  even  though  the  affidavit  has  no  relation  to  any  court-martial 
matter.  See  File  26806r94;  19037-27. 

31.  Marine  Corps — Authority  of  officers  of  the  Marine  Corps  to  administer  oaths.    See 

OATHS,  48. 

32.  Midshipmen — Agreement  and  oath  signed  by  midshipmen  appointed  to  the  Naval 

Academy.    See  MIDSHIPMEN,  7, 57. 

33.  Naval  administration.    See  OATHS,  48. 

34.  Naval  force  of  Pennsylvania — The  commanding  officer  of  the  naval  force  of  Penn- 

sylvania is  not  empowered  by  Navy  Regulations,  1913,  R-1536  (1),  or  by  the  act  of 
March  3, 1901  (31  Stat.  1086),  upon  which  said  regulation  was  based,  to  administer 
oaths  to  witnesses  in  the  investigation  conducted  by  him  concerning  a  collision. 
File  26835-360,  J.  A.  G.,  August  21  1913. 

35.  Naval  Mllttla— Oath  prescribed  in  G.  0. 150,  June  14, 1915.    See  NAVAL  MILITIA,  21. 

36.  Naval  Observatory — Authority  of  commandant  to  administer  oaths.    See  NAVAL 

OBSERVATOEY,  1. 

37.  Private  business— Act  of  March  3,  1901  (31  Stat.  1086),  amending  act,  Jan.  25,  1895 

(28  Stat.  639)  [see  also  act,  Feb.  13, 1911,  36  Stat.  898],  does  not  authorize  the  officers 
mentioned  therein  to  administer  an  oath  for  other  purposes,  such  as  in  matters  relat- 
ing to  the  private  business  of  either  officers  or  enlisted  men.  File  19037-27,  Sec.  Navy, 
Mar.  30, 1912. 

38.  Same — A  commanding  officer  has  no  authority  to  administer  an  oath  in  the  case  of 

an  enlisted  man  desiring  to  prove  up  a  homestead  or  making  application  for  an 
annuity  or  any  other  sum  due  an  Indian.  Such  does  not  come  within  the  expression 


OATHS.  >  425 

(act,  Mar.  3,  1901,  31  Stat.  1086)  "other  purposes  of  naval  administration"  referring 
to  the  authority  to  administer  oaths,  as  the  power  to  administer  oaths  by  officers  in 
the  service  was  granted  for  the  purpose  of  facilitating  the  business  of  the  naval  service 
and  to  promote  economy.  File  19037-27,  Sec.  Navy,  Mar.  30, 1912. 

3t.  Recruiting  officers — In  view  of  the  provisions  of  Navy  Regulations,  1913,  R-1536, 
and  the  Act  of  March  3, 1901  (31  Stat.  1086),  it  is  held  that  the  administering  of  an  oath 
by  a  recruiting  officer  of  the  Navy  "to  a  person  not  in  the  naval  service  who  desires 
to  make  an  affidavit  as  to  the  date  and  place  of  birth  of  an  applicant  for  enlistment 
in  the  United  States  Navy,"  is  authorized  under  the  clause  "and  for  other  purposes 
of  naval  administration."  (See  File  7751-03,  J.  A.  G.,  Sept.  9,  1903;  19037-38,  J.  A. 
G.,  Sept.  25,  1913;  19037-45,  J.  A.  G.,  May  26,  1914.)  File  26806-138,  J.  A.  G.,  Feb. 
1,  1916;  C.  M.  O.  5, 1916,  7. 

4«.  Same— Authority  to  administer  oaths.    See  OATHS,  48. 

41.  Solicitor— The  Solicitor  in  the  Office  of  the  Judge  Advocate  General  was  detailed  by 

the  Secretary  of  the  Navy,  May  2, 1907,  to  investigate  reported  discrimination  against 
Marines  in  uniform  visiting  the  Librarv  of  Congress,  and  was  authorized  to  administer 
oaths  to  witnesses  under  R.  S.  183.  File  5421-11,  Sec.  Navy,  May  2,  1907.  See  also 
File  26263. 

42.  Special  counsel.    See  COUNSEL,  50. 

43.  Statute— Authority  to  administer  an  oath  can  be  given  only  by  statute— The  person 

who  can  administer  the  oath  being  named  in  the  statute,  other  persons  are  excluded 
by  its  terms  from  exercising  that  authority.  C.  M.  O.  14,  1911,  5,  5,  6. 

14.  Summary  courts-martial.    See  OATHS,  47, 54;  SUMMARY  COURTS-MARTIAL. 

15.  Surgeons.    See  OATHS,  23. 

46.  Taking  of  oath— It  does  not  follow  that  every  one  who  takes  the  oath  of  office  is  an 

officer.    File  9736-18,  J.  A.  G.,  June  25,  1910,  p.  13. 

47.  Vote  or  sentence  of  summary  courts-martial — The  oath  administered  to  members 

of  summary  courts-martial  contains  no  prohibition  against  divulging  the  vote  of  a 
particular  member,  and  his  vote  may  be  officially  ascertained  without  judicial  pro- 
ceedings. 

Nevertheless  the  department  desires  it  to  be  understood  that  notwithstanding 
the  absence  of  any  law  or  regulation  on  the  subject,  in  the  matter  of  secrecy,  it  regards 
members  of  summary  courts-martial  as  governed  by  the  same  principle  which  applies 
to  members  of  general  courtS'-martial.  Considered  solely  as  a  matter  of  propriety 
and  official  decorum,  it  is  as  pernicious  for  members  of  summary  courts-martial,  as 
it  is  for  members  of  general  courts-martial,  to  disclose  the  sentence  of  the  court  prior 
to  its  approval,  or  at  any  time  to  divulge  or  disclose  the  vote  or  opinion  of  any  particu- 
lar member  of  the  court,  unless  officially  required  to  do  so  by  proper  authority. 

Briefly  stated,  the  department  considers  the  confidential  nature  of  the  vote  or 
opinion  of  each  member  of  a  summary  court-martial  to  be  sacred  in  all  cases  except 
where  official  inquiry  is  made  by  the  convening  or  higner  authority.  In  ohe  case  of 
general  courts-martial  the  statute  protects  this  secrecy  against  any  other  than  a 
judicial  investigation;  in  the  case  of  a  summary  court-martial  the  department,  in 
the  absence  of  any  statute  or  regulation  on  the  subject,  will  sanction  a  modification 
of  this  rule  only  to  the  extent  of  allowing  the  vote  or  opinion  of  members  to  be  disclosed, 
as  above  stated,  upon  official  inquiry  by  the  convening  or  higher  authority.  File 
25675-9-10-11,  Sec.  Navy,  Oct.  28,  1915;  C.  M.  O.  42,  1915,  8-9.  See  also  CRITICISM 
OF  COURTS-MARTIAL,  36;  REPORTS  ON  FITNESS,  3. 

48.  Who  may  administer  oaths— The  act  of  March  3, 1901  (31  Stat.  1086),  Navy  Regu- 

lations, 1913,  R-1536(l),  provides:  "That  judge  advocates  of  naval  general  courts- 
martial  and  courts  of  inquiry,  and  all  commanders  in  chief  of  naval  squadrons,  com- 
mandants of  navy  yards  and  stations,  officers  commanding  vessels  of  the  Navy,  and 
recruiting  officers  of  the  Navy  and  the  adjutant  and  inspector,  assistant  adjutant 
and  inspectors,  commanding  officers,  and  recruiting  officers  of  the  Marine  Corps,  be, 
and  the  same  are  hereby,  authorized  to  administer  oaths  for  the  purposes  of  the 
administration  of  naval  justice  and  for  other  purposes  of  naval  administration." 
File  26806-138,  J.  A.  G.,  Feb.  1,  1916;  C.  M.  O.  5,  1916,  7.  See  also  File  19037-45,  J.  A. 
G.,  May  26,  1914;  File  26509-J:16,  J.  A.  G.,  Oct.  1,  1909,  p.  13,  with  reference  to 
adjutants  and  inspectors  of  the  Marine  Corps. 

49.  Same— There  is  no  authority  of  law  for  the  administration  of  an  oath  by  any  officer 

on  board  ship  except  the  commanding  officer  [and  executive  officer],  and  the  depart- 
ment held  that  any  other  officer  could  not  administer  the  oath  in  enlisting  a  man  on 
board  ship.  C.  M.  O.  135,  1897.  2.  See  also  OATHS,  16-18. 


426  OATHS. 

50.  Witnesses — Naval  courts-martial — When  a  witness  takes  the  stand  after  a  recess,  or 

resumes  the  stand  for  any  reason,  the  record  of  proceedings  should  show  that  he  was 
cautioned  that  the  oath  previously  taken  is  binding.  C.  M.  O.  47,  1910,  5.  But 
where  such  witnesses  were  resworn  instead  of  merely  being  warned,  such  error  does 
not  in  anywise  affect  the  validity  of  the  proceedings.  C.  M.  O.  54, 1898. 

51.  Sanw^— Where  a  witness  for  the  prosecution  was  not  duly  sworn,  but  permitted  to 

testify  and  then  sworn  that  the  testimony  as  given  was  the  truth,  the  proceedings  of 
the  summary  court-martial  were  disapproved.  Case  of  Wm.  P.  McCabe,  Nov.  27, 
1909. 

52.  Same — The  proceedings  of  a  deck  court  were  set  aside  in  a  case  where  the  deck  court 

officer  allowed  himself  to  be  sworn  as  a  witness  for  the  prosecution  by  the  recorder, 
etc.  See  DECK  COURTS,  58. 

53.  Same — Witness  sworn  by  judge  advocate  instead  of  by  president  of  the  general  court- 

martial.    See  DECK  COURTS,  58;  ESTOPPEL,  9. 

54.  Same — An  oath  or  affirmation  in  the  following  form  shall  be  administered  to  all  wit- 

nesses, before  any  court-martial,  by  the  president  thereof:  "You  do  solemnly  swear 
(or  affirm)  that  the  evidence  you  shall  give  in  the  case  now  before  this  court  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  you  will  state  every- 
thing within  your  knowledge  in  relation  to  the  charges.  So  help  you  God;  (or, 'this 
you  do  under  the  pains  and  penalties  of  perjury')."  (A.  G.  N.,  41.)  C.  M.  O.  48, 
1915, 2. 

OBEDIENCE.    See  also  DISOBEDIENCE  OF  ORDERS;  ORDERS. 

1.  Importance  of — "The  department  desires  to  impress  upon  the  service  the  importance 

of  obedience  to  the  orders  of  superior  authority,  as  the  first  and  plainest  duty  of  all, 
and  one  from  which  no  person  in  the  Navy  is  or  can  be  exempted."  C.  M.  O.  67, 
1892,  2;  101,  1903,  9.  See  also  ORDERS,  47. 

2.  Same— The  offense  of  refusing  to  obey  the  lawful  order  of  a  superior  officer  is  one  of  the 

most  serious  known  to  naval  laws.    C.  M.  O.  57,  1895,  3. 

3.  Military  man— The  first  duty  of  a  military  man  is  obedience.    C.  M.  O.  37, 1915,  7. 

OBESITY.    See  ACTING  ASSISTANT  DENTAL  SURGEONS,  1. 

OBJECTIONS. 

1.  Charges  and  specifications— Procedure  when  objection  is  made  to.    See  CHARGES 

AND  SPECIFICATIONS,  33, 34. 

2.  Errors  In  procedure— Where  counsel  claimed  that  the  defense  could  not  hear  the 

statements  going  on  in  the  court,  and  therefore  the  sentence  was  illegal,  the  depart- 
ment stated  in  part  that  "were  such  a  claim  admitted  n9  court  proceedings  would 
ever  hold,  as  all  that  would  be  necessary  for  the  defense  to  invalidate  the  proceedings 
would  be  to  state  that  certain  parts  of  the  proceedings  were  not  heard  by  the  defense." 
The  defense  "  had  the  opportunity  "  to  object  to  the  proceedings  and  to  disprove  the 
facts  presented,  "but  preferred  to  let  it  pass  in  the  hope  by  so  doing  he  could  establish 
an  error  in  procedure  after  the  trial  ana  so  cause  the  proceedings  of  the  court  to  be  set 
aside  and  thereby  free  his  client  from  punishment  for  his  offense  by  a  technicality." 
C.  M.  O.  9, 1908, 3.  See  also  JUDGE  ADVOCATE,  105. 

3.  Evidence— Objection  to.    See  EVIDENCE,  79-84. 

OBSCENE  AND  THREATENING  LANGUAGE. 

1.  Massachusetts  law.    File  26251-2993:12. 

OBSCENE  BOOKS  AND  POSTAL  CARDS. 

1.  Malls— Sending  through.    See  File  26251-6162. 

2.  Same— Postal  card.    See  File  7538-197. 

OBSTINATE  COURT.    See  CRITICISM  OF  COURTS-MARTIAL,  43. 
OBTUNDITY  OF  COURT.    See  CRITICISM  OF  COURTS-MARTIAL,  44. 

OFFENSES. 

1.  Accumulation  of.    See  ACCUMULATION  OF  OFFENSES. 

2.  Aggravating  circumstances.    See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT 

LEAVE,  12;  ACCUSED,  51.  52;  AGGRAVATING  CIRCUMSTANCES;  NAVAL  ACADEMY,  16. 

3.  Commanding  officer— Had  the  commanding  officer  made  the  thorough  investiga- 

tion of  the  circumstances  attending  the  offenses  with  which  the  accused  was  charged 
required  by  Navy  Regulations,  recourse  to  a  general  court-martial  would  hardly 
have  been  found  necessary,  and  punishment,  such  as  the  commanding  officer  would 


OFFENSES.  427 

have  been  authorized  to  award,  or  such  as  could  have  been  awarded  bjr  sentence  of 
a  summary  court-martial,  would  seem  to  have  been  amply  sufficient  in  this  case. 
C.  M.  0. 135, 1900, 1. 

4.  Common  law  offenses.    See  COMMON  LAW,  6. 

5.  Enlisted  man — More  serious  when  committed  by  an  accused  of  long  service.    See 

ACCUSED.  52. 

6.  Officers— Aggravated  circumstances.    See  ACCUSED,  51;  NAVAL  ACADEMY,  1C. 

7.  "  Purely  military  offenses."    C.  M.  O.  49,  1915,  21,  22. 

8.  Specifications — Defective  if  it  fails  to  allege  an  offense.    See  CHARGES  AND  SPECIFI- 

CATIONS, 39,  102,  103. 

9.  Statement  of  an  offense.    See  CHARGES  AND  SPECIFICATIONS,  102, 103;  CONCLUSIONS 
.          OP  LAW,  5. 

10.  Time— As  essence  of  offense.    See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE, 

29;  CHARGES  AND  SPECIFICATIONS,  92.  See  also  File  26287-1125,  J.  A.  G.,  March  19, 
1912. 

11.  War— Offenses  in  tune  of  war.    C.  M.  O.  67,  1898;  91,  1898;  95,  1898;  33,  1899.    See  also 

DESERTION,  132-137;  WAR,  6,22,23. 

«•  OFFICE."    See  also  GRADE  AND  RANK. 

1.  Civil  office  or  employment — Of  retired  naval  officers.    See  RETIRED  OFFICERS,  18, 

26,  28,  31,  34-37,  42,  50,  72. 

2.  Contract — "  Whatever  the  form  of  the  statute,  the  officer  under  it  does  not  hold  by 

contract.  He  enjoys  a  privilege  revocable  by  the  sovereign  at  will;  and  one  legisla- 
ture can  not  deprive  its  successor  of  the  power  of  revocation."  (Crenshaw  v.  U.  S., 
134  U.  S.  99.)  File  26260-1392,  J.  A.  G.,  June  29, 1911,  p.  17.  See  also  "OFFICE,"  4,  5; 
PAY,  76. 

J,  Definition — An  "office"  is  a  public  station,  or  employment,  conferred  by  the  appoint- 
ment of  government.  The  term  embraces  the  ideas  of  tenure,  duration,  emolument, 
and  duties.  (U.  S.  ».  Hartwell,  6  Wall.  385,  393.) 

An  acting  paymaster,  appointed  by  the  senior  officer  present  is  not  an  officer. 
A  midshipman  appointed  acting  master  (1861)  was  held  to  be  entitled  to  receive  the 
pay  of  that  grade.  A  deputy  collector  of  internal  revenue  is  not  an  officer;  neither  is 
a  special  deputy  marshal.  A  circuit  judge  of  the  United  States  appointed  a  commis- 
sioner under  a  convention  with  Great  Britain  does  not  thereby  hold  an  office.  A 
general  appraiser  appointed  as  an  expert  to  represent  the  United  States  in  an  inter- 
national tariff  commission  is  not  an  officer.  The  appointment  of  a  special  assistant 
attorney  to  aid  in  a  certain  case  or  set  of  cases  is  'not  an  appointment  to  an  office. 
File  9736-18,  J.  A.  G.,  June  25,  1910,  pp.  7,  10.  See  also  File  5460-70,  Mar.  1,  1915. 

4.  Same — An  "office"  is  defined  to  be  a  "public  charge  or  employment,"  and  he  who 

performs  the  duties  of  the  "office"  is  an  "officer."  If  employed  on  the  part  of  the 
United  States,  he  is  an  officer  of  the  United  States.  Although  an  "office"  is  "an 
employment,"  it  does  not  follow  that  every  "employment"  is  an  "office."  A  man 
may  certainly  be  employed  under  a  contract,  express  or  implied,  to  do  an  act  or  per- 
form a  service,  without  becoming  an  officer.  But  if  a  duty  be  a  continuing  one,  it 
seems  very  difficult  to  distinguish  such  a  "charge  or  employment"  from  an  "office," 
or  the  person  who  performs  the  duties  from  an  officer.  (U.  S.  v.  Maurice,  2  Brock., 
96;  24  Op.  Atty.  Gen.  12.)  File  9736-18,  J.  A.  G.,  June  25, 1910,  p.  11. 

5.  Same— A  Government  office  is  different  from  a  Government  contract.    The  latter 

from  its  nature  is  necessarily  limited  in  its  duration  and  specific  in  its  objects.  The 
terms  agreed  upon  define  the  rights  and  obligations  of  both  parties,  and  neither  may 
depart  from  them  without  the  assent  of  the  other.  (U.  S.  v.  Hartwell,  6  Wall.,  385, 
393;  U.  S.  v.  Germaine,  99  U.  S.  508.)  File  9736-18,  J.  A.  G.,  June  25,  1910,  p.  8. 

6.  Duration.    See  "OFFICE,"  3. 

7.  Duties.    See  "OFFICE,"  3,  4, 18. 

8.  Emolument.    See  "  OFFICE,"  3. 

9.  Employment  or  charge.    See  "OFFICE,"  4. 

10.  Enlisted  men— Does  an  enlisted  man  hold  "office?"    See  File  9644-27,  J.  A.  G.,  Jan. 

24, 1913.    See  also  DECORATIONS,  2;  "OFFICE"  11-13. 

11.  Same — Held:  That  an  enlisted  man  of  the  Army  is  an  "officer"  within  the  meaning 

of  R.  S.  850.  allowing  expenses  incurred  by  witnesses  for  the  Government.  File  3707, 
June  15,  1904,  citing  16  Op.  Atty  Gen.  113. 

12.  Same—  Held:  That  enlisted  men  of  the  Navy  and  Marine  Corps  are  not  officers  of  the 

United  States  within  the  constitutional  prohibition  and  the  act  of  June  31,  1881,  sec. 
3  (21  Stat.  604),  with  regard  to  the  acceptance  of  medals,  etc.,  from  foreign  Govern- 
ments. See  File  3707,  June  15, 1904;  9644-27,  Jan.  24, 1913;  DECORATIONS,  2. 


428  "OFFICE." 

13.  Same— The  question  whether  Art.  I,  sec.  9,  class  8,  of  the  Constitution  Includes  within 

its  terms  any  person  occupying  a  position  of  trust  or  profit  under  the  United  States, 
such  as  an  enlisted  man,  is  not  free  from  doubt.  There  are  decisions  which  have  given 
the  word  "office"  a  very  broad  construction  in  other  connections.  File  9044-27, 
Jan.  24,  1913. 

14.  Oath — Every  one  who  takes  an  oath  is  not  an  officer.    See  OATHS,  46. 

15.  Pay.    See  EMOLUMENT;  "OFFICE,"  3,  4, 17, 18. 

16.  Property  of  incumbent — An  office  created  by  statute  is  not  the  property  of  the 

incumbent.  Being  given  by  statute,  it  can  be  taken  away  by  statute,  and,  there- 
fore, the  rules  of  law  applicable  to  proceedings  to  deprive  a  person  of  property  law- 
fully acquired  are  not,  in  general,  applicable  to  proceedings  of  examining  ooards,  in 
cases  of  promotion.  The  rules  of  procedure,  even  in  civil  cases,  where  rights  of  prop- 
erty are  involved,  are  not  applicable  here,  except  in  so  far  as  they  are  made  so  by 
statute  and  regulations  adopted  by  the  Navy  Department  in  accordance  with  statute 
laws.  Neither  can  such  examinations  be  assimilated  in  any  manner  to  criminal 
proceedings,  which  they  in  no  sense  resemble.  The  offices  held  by  naval  officers, 
Congress  creates,  abolishes,  and  limits  at  will.  Congress  has  complete  power,  if  it 
wishes,  not  only  to  stop  promotions,  but  to  abolish  these  offices.  It  might  declare 
that  no  one  should  hereafter  be  promoted  who  was  not  over  6  feet  high ;  or  it  might 
direct  that  all  officers  not  of  the  required  height  should  be  discharged;  and  it  can  cer- 
tainly pass  an  act  like  that  of  August  5,  1882  (22  Stat.  286),  directing  the  discharge  of 
officers  whose  unfitness  arises  from  their  own  misconduct.  File  26260-1392,  June  29, 
1911.  See  also  PRO  MOTION,  142, 213. 

17.  Salary— The  incumbent  of  an  office  is  entitled  to  the  salary  attached  thereto  by 

law,  and  if  he  receives  a  less  sum  from  disbursing  officers  he  can  claim  and  receive  th« 
balance.  (Dyer  v.  U.  S.,  20  Ct.  Cls.  166, 171.)  File 5362-35,  J.  A.  G.,  June 29, 1911,  p.  6. 

18.  Same— The  law  creates  the  "office,"  prescribes  its  duties,  and  fixes  the  compensation. 

The  appointing  power  has  no  control,  beyond  the  limits  of  the  statute,  over  the  com- 
pensation, either  to  increase  it  or  to  diminish  it.  (Converse  v.  U.  S.,  21  How.  46X 
U.  S.  v.  Williamson,  23  Wall.  411;  U.  S.  v.  Lawson,  101  U.  S.  164;  U.  S.  v.  Ellsworth, 
101  U.  S.  170;  Hall  v.  Wisconsin,  103  U.  S.  5;  Allstaedt's  Case,  3  Ct.  Cls.  284;  Patton's 
Case,  7  Ct.  Cls.  362;  Sleigh  v.  U.  S.,  9  Ct.  Cls.  369.)  File  5362-35,  J.  A.  G.,  June  29, 
1911,  p.  7.  See  also  EMOLUMENT;  PAY,  112,  115, 116;  RETIBED  OFFICERS,  18. 

19.  Taxation— Of  an  office  of  the  United  States.    See  TAXATION,  1. 

20.  Tenure.    See  "OFFICE,"  3. 

21.  Vested  right— An  office  is  not  a  vested  right.    File  14818-4,  J.  A.  G.   1909,  p.  6.    Set 

also  "OFFICE,"  16. 

OFFICE  OF  NAVAL  INTELLIGENCE. 

1.  Established — "An  'Office  of  Intelligence'  is  hereby  established  in  the  Bureau  of  Navi- 
gation for  the  purpose  of  collecting  and  recording  such  naval  information  as  may  be 
useful  to  the  department  in  time  of  war,  as  well  as  in  peace. 

"To  facilitate  this  work,  the  Department  Library  will  be  combined  with  the  'Office 
of  Intelligence,'  and  placed  under  the  direction  of  the  Chief  of  the  Bureau  of  Navi- 
gation. 

"Commanding  and  all  other  officers  are  directed  to  avail  themselves  of  all  oppor- 
tunities, which  may  arise,  to  collect  and  forward  to  the  'Office  of  Intelligence 'profes- 
sional matter  likely  to  serve  the  object  in  view."  G.  O.  292,  May  23, 1882.  See  also 
act  of  February  24, 1899  (30  Stat.,  874). 

OFFICERS. 

1.  Acting  officers.    See  ACTING  BOATSWAINS;  ACTING  GUNNER;  ACTING  MACHINISTS; 

ACTING  PAY  CLERKS;  ACTING  WARRANT  OFFICERS,  etc. 

2.  Additional  numbers.    See  ADDITIONAL  NUMBERS. 

3.  Agreement  as  to  quarters.    File  26254-2052. 

4.  Appeals.    See  APPEALS,  10-13. 

5.  Apology.    See  APOLOGY,  1;  OFFICERS,  101. 

6.  Arrest  of,  for  trial  by  general  court-martial — Surrender  of  sword.    See  ARREST, 

26,  39. 

7.  Arrested  by  civil  authorities.    See  ARREST,  7,  28;  CIVIL  AUTHORITIES,  10, 33,  34. 

8.  Assault— Officer  assaulting  a  civilian.    See  ASSAULT,  20. 

9.  Same— Ruffianly  assault  by  accused  officer  upon  a  brother  officer.    See  ASSAULT,  21 

10.  Blackmail.    See  OFFICERS,  3, 118. 

11.  Breach  of  trust— A  breach  of  financial  trust  or  misuse  of  public  funds  ia  never  trivial. 

C.  M.  0. 107, 1901,  2. 


OFFICERS.  429 

12.  Brief  service— Offense  due  to  the  "comparative  brevity  "  of  accused's  period  of  service. 

C.  M.  O.  31, 1887,  2.    See  also  CLEMENCY,IO. 

13.  Cheating — An  officer  convicted  of  an  offense  such  as  cheating  at  examination  is  not 

desirable  for  the  naval  service.  C.  M.  O.  20,  1916.  See  also  BLOTTER,  1;  GOUGING; 
MIDSHIPMEN,  22. 

14.  Citizen— An  officer  must  be  a  citizen  of  the  United  States.    See  CITIZENSHIP,  28. 

15.  Civil  authorities— Officers  arrested  by.    See  AEEEST,  7,  28;  Crvn,  AUTHORITIES,  33, 

34;  CONTEMPT  OF  COURT,  4. 

16.  Civil  obligations— "It  has  always  been  the  policy  of  this  department  to  require  that 

members  of  the  naval  service  fulfill  their  civil  obligations,  and  disciplinary  proceed- 
ings have  been  initiated  where  failure  to  do  so  has  brought  scandal  and  disgrace  upon 
the  naval  service."  File  7657-408,  Sec.  Navy,  Oct.  28, 1916.  See  also  DEBTS,  1-5, 
9-25. 

17.  Civil  office  or  employment.    See  RETIRED  OFFICERS. 

18.  Club,  Army  and  Navy  Club,  Manila,  P.  I.— Officer  expelled  from.    C.  M.  O.  5, 

1909,1. 

19.  Commanding  officers.    See  COMMANDING  OFFICERS. 

20.  Commissions — In  general.    See  COMMISSIONS. 

Duties,  obligations,  and  responsibilities  imposed  upon  an  officer  by  the  language 
of  his  commission.    See  NAVIGATION,  31  (p.  413);  OFFICERS,  97. 

21.  Complaints  and  explanations — Officers  making  either  complaints  or  explanations 

are  to  confine  themselves  simply  and  exclusively  to  the  facts  of  the  case,  and  are 
neither  to  express  an  opinion  nor  to  impugn  the  motives  of  the  opposite  party. 
C.  M.  O.  3. 1887,  2.  See  also  C.  M.  0. 28, 1894,  2;  CORRESPONDENCE;  OFFICERS,  63. 

22.  Confined  at  bard  labor.    See  CONFINEMENT,  18;  HARD  LABOR,  5,  6. 

23.  Constructive  service.    See  CONSTRUCTIVE  SERVICE. 

24.  Consular  officers — Have  no  power  to  issue  orders  to  naval  officers,  etc.    See  DIPLO- 

MATIC OFFICERS.  2;  OFFICERS,  37. 

25.  Contempt  ot  civil  court — Tried  by  general  court-martial.    See  CONTEMPT  OF  COURT,  4. 

26.  Control  of  temper  and  speech.    See  OFFICERS,  117. 

27.  Counsel  for  accused — In  court-martial  cases.    See  COUNSEL. 

28.  Countersign — Officers  should  observe.  See  COUNTERSIGN;  ORDERS,34;  SENTINELS,  18. 

29.  Court-Martlal  Orders— Officers  responsible  for  ignorance  of.    See  COURT-MARTIAL. 

ORDERS,  22, 39-42. 

30.  Criticizing  commanding  officer— Tried  by  general  court-martial  for  publicly 

criticizing  his  commanding  officer.    C.  M.  O.  40,  1909. 

31.  Debts.   See  DEBTS. 

32.  Deck— Officers  6f  the  Deck.    See  OFFICER-OF-THE-DECK  ;  WATCH  OFFICERS. 

33.  Definition— "Officer,"  as  denned  in  R-64,  provides  that  "within  the  meaning  of 

the  foregoing  articles,  unless  there  be  something  in  the  context  or  subject  matter 
repugnant  to  or  inconsistent  with  such  construction,  officers  shall  mean  commissioned 
and  warrant  officers,  and  paymasters'  clerks;  superior  officers  shall  be  held  to  include 
mates  and  petty  officers  of  the  Navy  and  noncommissioned  officers  of  the  Marine 
Corps,  in  addition  to  the  officers  enumerated."  C.  M.  O.  49,  1915,  19-20. 

34.  Same — An  officer  is  one  who  performs  the  duty  of  an  office.    See  "  OFFICE,"  4. 

35.  Desertion  of.   See  DESERTTON,  89-91. 

36.  Dictatorial — In  handling  enlisted  men.    See  OFFICERS,  74. 

37.  Diplomatic  and  consular  officers — Have  no  power  to  issue  orders  to  commanding 

officers  of  legation  guards,  troops,  or  naval  vessels.    See  DIPLOMATIC  OFFICERS,  2. 

38.  "  Discharged  "  officers — The  term  "discharged"  as  used  in  the  act  of  Aug.  5,  1882 

(22  Stat.  286),  providing  for  the  discharge  of  officers  who  fail  morally  on  examination 
for  promotion,  was  intended  to  be  synonymous  with  the  words  "wholly  retired." 
File  26260-1392,  26260-697,  Sec.  Navy,  June  29, 1911,  p.  25.  See  also  DISCHARGE,  11. 

39.  Dismissed  officer— Restoration  of  dismissed  officers.    See  DISMISSAL,  23;  LEGISLA- 

TION, 5. 

40.  Same — An  officer  dismissed  by  sentence  of  a  naval  court-martial  shall  never  again 

become  an  officer  of  the  Navy.    File  5252-79,  J.  A.  G.,  June  19, 1915;  DISMISSAL,  22. 

41.  Disrespectful  to  commanding  officer— Tried  by  general  court-martial.    C.  M;.  O. 

28,1908. 

42.  Elope,  attempt  to— With  young  girl— Tried  by  general  court-martial.    C.  M.  O.  55, 

1894.    See  also  ELOPING.  2. 

43.  Emergency — It  is  incumbent  upon  officers  of  the  Navy  to  so  conduct  themselves  that. 

they  will  not  only  be  able  to  assume  ordinary  routine  duties,  but  to  meet  any  emer- 
gency which  might  arise  requiring  the  highest  degree  of  energy  and  mental  clarity. 
C.  M.  O.  5, 1915,  2.  See  also  EMERGENCY. 


430  OFFICERS. 

44.  Enlisted  men — Relations  with — Giving  intoxicating  liquor  to.    C.  M.  O.  49,  1888; 

28, 1908;  16. 1917. 

45.  Same— Treatment  of—  Officer  was  tried  by  general  court-martial  for  striking  an  enlisted 

man  with  his  sword  when  the  man  was  in  double  irons,  kneeling  on  the  deck  with 
his  hands  in  irons  behind  his  back.  C.  M.  O.  29, 1890. 

46.  Same — Manner  in  handling.    See  OFFICERS,  74. 

47.  Same — Officer  tried  by  general  court-martial  for  sleeping  in  an  enlisted  man's  bunk 

after  he  had  been  assigned  proper  quarters  in  an  officer's  house.    C.  M.  O.  16,  1910. 

48.  Explanations  and  complaints.    See  CORRESPONDENCE;  OFFICERS,  21. 

49.  Evasion  of  duty — "All  officers  are  reminded  of  the  impropriety  of  seeking  to  evade 

their  proper  tours  of  professional  duty,  on  personal  considerations  or  through  the 
intervention  of  influential  friends,  thus  seeking  to  impose  upon  others  service  which 
it  is  their  own  duty  to  perform,  and  perhaps  hardships  and  dangers  which  belong 
of  right  to  themselves."  G.  O.  174,  June  6, 1872. 

50.  Example— To  midshipmen  when  on  duty  at  the  Naval  Academy.    C.  M.  0. 14, 1915,  2. 

51.  Expatriation.    See  CITIZENSHIP,  17-18;  EXPATRIATION,  2;  RETIRED  OFFICERS,  31. 

52.  Expelled— Officer  expelled  from  Army  and  Navy  Club,  Manila,  P.  I.    C.  M.  O.  5, 1909. 

53.  Expert  witness— In  a  suit  between  private  parties— Compensation  for.    See  MERCHANT 

VESSELS,  3,  4;  EXPERT  WITNESSES,  8, 11. 

54.  Fees — For  service  rendered  in  time  of  the  United  States.     See  MERCHANT  VESSELS,  4. 

55.  Foreign  country — The  accused  has  been  found  guilty  by  a  general  court-martial  of 

"Drunkenness,"  and  "Conduct  to  the  prejudice  of  good  order  and  discipline."  The 
gravity  of  these  offenses — serious  under  any  circumstances — is  greatly  augmented 
by  the  fact  that  they  were  committed  by  an  officer  of  the  United  States  Navy  on  duty 
in  Mexican  waters  at  a  time  when  the  international  relations  with  Mexico  were  such 
as  to  require  special  care  on  the  part  of  all  citizens  of  the  United  States  in  their  conduct 
and  bearing  while  in  that  country,  but  even  more  especially  was  it  incumbent  upon 
commissioned  officers  of  the  United  States  to  avoid  all  possibilities  of  friction  or  criti- 
cism. 

The  accused  was  in  Mexico  because  of  the  existing  relations  with  that  country 
and  because  of  the  commission  he  bore  in  the  United  States  Navy.  He  was  allowed 
ashore  in  civilian  clothes  on  the  night  in  question  because  of  the  presumption  that  a 
commissioned  officer  could  be  trusted  to  conduct  himself  in  a  gentlemanly  manner 
and  in  a  manner  which  would  not  reflect  discredit  upon  the  service  or  upon  the  uni- 
form which  he,  as  a  commissioned  officer,  was  entitled  to  wear.  His  actions  proved 
him  unworthy  of  the  trust  and  confidence  which  is  reposed  in  commissioned  officers, 
and  the  department  considers  that  it  is  only  through  the  extreme  leniency  of  the  court 
that  he  is  permitted  to  retain  a  commission  in  the  service  and  mingle  on  a  footing 
of  equality  with  officers  who  are  capable  of  appreciating  the  responsibilities  of  their 
position  and  the  high  standards  which  are  imposed  upon  them  and  which  as  a  body 
they  zealously  cherish.  The  reputation  of  the  commissioned  personnel  of  the  service 
has  been  lowered  by  the  irresponsible,  unofficerlike  conduct  of  the  accused.  C.  M. 
O.  7,  1914,  16.  See  also  COMMANDING  OFFICERS,  20,  44. 

56.  Foreign  States— Accepting  office  from.    See  OFFICERS  OF  THE  UNITED  STATES. 

57.  Furlough— Secretary  of  the  Navy  may  place  an  officer  on  furlough.    See  OFFICERS,  106. 

58.  General  court-martial— Is  only  naval  court-martial  which  has  jurisdiction  to  try 

commissioned  officers  of  the  Navy.    C.  M.  O.  7, 1914,  9. 

59.  Gouging.   See  BLOTTER,  1;  GOUGING;  MIDSHIPMEN,  22;  OFFICERS.  13. 

60.  "Habit"— An  officer  can  not  be  court-martialed  for  a  "habit."    File  26260-1392,  J.  A. 

G.,  June  29, 1911,  p.  14.  See  also  ACCUMULATION  OF  OFFENSES;  CHARGES  AND  SPECI- 
FICATIONS, 61-68.93  (F). 

61.  Hard  labor— Confinement  at.    See  CONFINEMENT,  18;  HARD  LABOR,  5,  6. 

62.  Ideals — The  department  requires  of  and  expects  from  officers  occupying  the  important 

position  of  head  of  a  department  a  performance  of  duty  actuated  by  the  nighest 
ideals,  independent  of  any  personal  inconvenience,  extra  hours,  or  diverting  causes. 
A  thorough,  zealous,  and  efficient  performance  of  such  duties  as  may  be  assigned 
should  be  an  ideal  sacred  to  every  officer.  If  difficulties  arise  the  officer  must  sur- 
mount them  and  adopter  procure  to  be  adopted  such  means  as  will  produce  efficient 
results.  C.  M.  O.  28, 1914.  5.  See  also  C.  M.  O.  14, 1915. 1;  17, 1915,  3. 

63.  Impugning  motives— Officers  should  not  express  opinions  upon  or  impugn  the 

motives  of  other  officers.  (See  Navy  Regulations,  1913,  R-1405.)  C.  M.  O.  28, 1894,  2. 
See  also  C.  M.  O.  3, 1887,  2;  CORRESPONDENCE;  OFFICERS,  21,  64,  69. 

64.  Same— Officer  tried  by  court-martial  for  expressing  an  opinion  upon  and  impugning 

the  motives  of  his  superior  officer.    C.  M.  O.  4, 1911,  4. 


OFFICERS  .  431 

65.  Influence— Using  influence  to  evade  proper  tours  of  professional  duty.    See  OFFICERS, 

49. 

66.  Initiative.    See  C.  M.  O.  37,  1915,  5,  6. 

67.  Insubordinate.    C.  M.  O.  4, 1911,  2,  5.  8. 

68.  Insulting  officers  and  ladies.    See  C.  M.  O.  2, 1907. 

69.  Language— A  letter  from  a  junior  should  be  "couched  in  such  language  as  should 

prevail  in  a  letter  from  a  junior  to  a  senior."  File  26806-131:24:1,  Sec.  Navy,  July 
9, 1915.  See  also  CORRESPONDENCE;  OFFICERS,  21,  63,  64.  • 

70.  Law— The  service  must  understand  and  appreciate  the  fact  that  the  Navy  exists  and 

is  maintained  by  law  alone;  that  its  officers  are  superior  in  authority  to  the  enlisted 
men  only  because  the  law  has  so  elevated  them;  and  that  it  is  the  interest  of  all  officers, 
as  well  as  their  duty,  to  adhere  with  scrupulous  fidelity  to  the  laws  enacted  for  their 
guidance.  G.  O.  168,  Jan.  6,  1872. 

71.  Legal  matters — The  officers  of  the  service  can  not  be  expected  to  become  expert  in 

the  abstruse  features  of  the  law,  but  the  department  has  a  right  to  expect  and  does 
expect  of  courts  a  familiarity  with  those  articles  in  the  Navy  Regulations  in  which 
the  essential  features  of  military  trials  are  categorically  prescribed.  These  essential 
features,  though  appearing  as  regulations,  are  m  nearly  every  instance,  the  brief  of 
statutes  or  of  various  decisions  which  have  the  force  of  law,  and  frequently  a  failure 
to  comply  with  them  renders  the  procedure  wholly  illegal.  C.  M.  O.  5, 1915,  5. 

72.  Leave  of  absence.    See  LEAVE  OF  ABSENCE. 

73.  Letter — Threatening  letter  written  by  one  officer  to  another.    See  OFFICERS,  3, 118. 

74.  Manner  in  handling  enlisted  men — The  promotion  of  an  officer  was  held  up  until 

certain  defects  in  his  manner  of  handling  enlisted  men,  as  shown  by  his  fitness  reports, 
were  completely  eradicated.  In  this  case  the  department  stated:  "In  the  opinion  of 
the  department,  a  dictatorial  and  an  unnecessarily  severe  manner  in  handling  enlisted 
men  is  one  of  the  most  serious  defects  that  can  be  possessed  by  an  officer.  An  officer  is 
necessarily  charged  with  much  authority,  and  the  abuse  thereof,  more  than  any  other 
one  feature  in  an  officer's  character,  is  conclusive  as  to  his  unfitness  for  the  trust 
imposed  in  him."  File  26260-2879:1,  Sec.  Navy,  Nov.  3, 1915;  C.  M.  O.  42, 1915, 11. 

75.  Marine  officers — Rank  and  precedence.    See  PRECEDENCE,  14-19. 

76.  Medical  officers.    See  MEDICAL  ATTENDANCE;  MEDICAL  OFFICERS  OF  THE  NAVY. 

77.  Members  of  courts-martial.    See  MEMBERS  OF  COURTS-MARTIAL. 

78.  Midshipmen — When  considered  an  "officer"  and  when  not.    See  MIDSHIPMEN,  58, 

59;  "OFFICE,"  3. 

79.  Naval  instructions,  1-3117  (1)  and  1-3118  (2)— Engineer  officer  chargeable  with  knowl- 

edge of.    C.  M.  O.  37, 1915,  4. 

80.  Navy  Regulations— Officers  are  presumed  to  know.    C.  M.  O.  5, 1914,  5;   7, 1914, 15. 

81.  Same — An  officer's  repeated  violations  of  the  Navy  Regulations  stampa  him  as  un- 

trustworthy and  not  a  proper  person  to  maintain  discipline  and  exercise  command 
over  others.  File  26260-1392,  J.  A.  G.,  June  29, 1911,  p.  13. 

82.  "Office."    See  "OFFICE." 

83.  Officer  of  the  United  States.    See  OFFICERS  OF  THE  UNITED  STATES;  "OFFICE,"  4. 

84.  Pay — Full  pay  is  necessary  for  the  proper  maintenance  of  an  officer  on  the  active  list. 

See  PAY,  100, 109. 

85.  Paymaster— Charged  with  various  serious  offenses  and  tried  by  general  court-martial— 

The  department  stated  in  part  that:  The  transaction,  however,  it  must  be  said  in  con- 
clusion, is,  in  any  sense  in  which  it  may  be  reviewe_d,  disgraceful  to  the  accused,  and 
to  the  Navy.  It  would  seem  to  have  been  a  violation  of  the  spirit  if  not  of  the  letter 
of  section  1781  of  the  Revised  Statutes.  C.  M.  O.  76, 1896, 13. 

86.  Personal  matters — The  Secretary  of  the  Navy  declined  to  give  a  retired  officer  advice 

concerning  any  action  which  he  might  take  m  matters  of  a  purely  personal  nature  in 
which  the  Navy  Department  is  not  authorized  to  take  action  of  any  kind.  The 
proper  course  of  an  officer  would  be  to  consult  a  private  attorney  at  his  own  expense. 
Memo.  J.  A.  G.,  Aug.  5, 1916.  See  also  LEGAL  ASSISTANCE  FOR  OFFICERS  AND  EN- 
LISTED MEN. 

87.  Personal  relations— Of  accused  (officer)  and  other  officers  of  his  ship.    C.  M.  O.  5, 

1903.    See  also  CLEMENCY,  40. 

88.  Plea  in  bar — Shielding  himself  behind — An  officer  being  charged  with  "  Drunkenness 

on  duty"  pleaded  in  bar  of  trial  stating  that  he  had  already  been  punished  for  the 
offense.  The  court  complied  with  the  proper  procedure,  forwarded  the  record  to  the 
department,  who  returned  the  record  advising  the  court  to  proceed  with  the  triaL 
The  court  again  respectfully  adhered  to  its  former  decision  in  regard  to  the  plea  in  bar 
of  trial.  The  department  after  severely  criticising  the  court  stated  in  part:  "  Turn- 
ing from  the  action  of  the  court  to  that  of  the  officer  concerned,  it  is  sufficient  to  say, 

50756°— 17 28 


432  OFFICERS. 

irrespective  of  the  legal  aspects  of  the  matter,  that  by  shielding  himself  behind  a 
technical  plea"  the  accused  "has  practically  admitted  his  guilt.  The  case  of  an 
officer  of  the  Navy  who  is  obliged  to  admit,  by  a  plea  of  this  character,  that  he  does 
not  deem  it  prudent  to  submit  the  question  of  his  guilt  or  innocence  of  a  grave  charge 
to  the  judgment  of  a  court-martial,  is  most  deplorable.  It  is  wise  that  an  officer 
should  reflect,  before  declining  to  face  charges  preferred  aginst  him,  that  although  he 
may,  as  in  this  instance,  through  the  error  of  the  court,  by  the  interposition  of  a  purely 
technical  plea  based  upon  insubstantial  grounds,  succeed  in  escaping  punishment  for 
a  gross  offense,  he  must, by  suchan  act,  necessarily  imperil  his  stand  tag  with  the  serv- 
ice at  large  and  the  department,  and  leave  upon  his  record  a  stain  which  is  all  the  more 
unfortunate  because  the  precise  nature  and  degree  of  his  offense  is  never  judicially 
determined."  C.  M.  0. 104, 1897, 6.  See  also  OFFICERS,  116;  PLEA  IN  BAB,  8. 
89.  President — An  officer  who  is  so  grossly  ignorant  as  not  to  know  that  the  President  of 
the  United  States  is  Commander  in  Chief  of  the  Army  and  Navy,  or  who  is  so  insub- 
ordinate in  spirit  that  he  will  not  hesitate  to  denounce  and  treat  with  disrespect  the 
Chief  Magistrate,  or  any  superior  officer,  however  exalted  in  rank,  is  not  only  wanting 
in  the  qualities  of  a  gentleman  but  is  wholly  unfit  for  military  service.  Whatever 
latitude  of  denunciation  or  abuse  civilians  may  chose  to  indulge  in  with  regard  to  the 
authorities  of  government,  officers  of  the  Navy  can  claim  no  such  privilege,  even  under 


accessary  to  the  most  perfect  freedom  of  opinion,  either  m  religion  or  politii 
A  naval  officer  should  be  a  gentleman  in  language  and  deportment.  Good  sense  and 
good  breeding  will  always  enable  any  individual  to  express  his  opinions  without 
giving  just  cause  of  offense,  and  the  officer  who  can  not  do  so  is  as  much  deficient  in 
those  qualities  as  he  is  in  a  sense  of  military  duty  when  he  treats  his  superior  with 
disrespect.  In  this  case  a  second  assistant  engineer  was  tried  by  general  court-martial 
for  "Using  language  disrespectful  to  the  President  of  the  United  States,"  the  specifi- 
cation alleging  that  he  "  used  language  disrespectful  to  the  President  of  the  United 
States,  declaring  that  the  President  had  violated  his  pledges  to  the  people  and  ought 
to  be  impeached."  G.  O.  85,  Oct.  11,  1867.  See  also  PRESIDENT  OF  THE  UNITED 
STATES,  5. 

90.  Private  debts— Legality  of  an  order  to  pay.    See  DEBTS,  17,  18. 

91.  Private  litigation— Government  will  not  compel  testimony.    See  WITNESSES,  89. 

92.  Private  reprimand.    See  PRIVATE  REPRIMANDS. 

93.  Promotion  of.    See  MABINE  EXAMINING  BOARDS;  NAVAL   EXAMINING  BOARDS; 

PROMOTION. 

94.  Public  reprimand.    See  OFFICERS,  101;  PUBLIC  REPRIMAND. 

95.  Qualifications  of — Officers  in  the  naval  service  are  selected  with  great  care:  they 

are  trained  and  educated  by  the  Nation,  and  required  to  meet  a  standard  of  mental 
and  physical  excellence  which  is  beyond  the  reach  of  the  average  man.  Much  is 
expected  of  them,  and  happily  the  expectation  is  not  often  disappointed.  They  are 
placed  in  charge  of  complicated  mechanism;  they  deal  with  the  most  dangerous  forces 
known  to  mankind;  they  command  men  whose  duty  it  is  to  obey  without  question. 
In  the  exercise  of  these  high  functions  there  is  rightfully  demanded  of  them  knowledge, 
discretion,  prudence,  and  a  care  and  foresight  proportioned  to  the  consequences  which 
may  follow  any  default.  C.  M.  0. 101, 1903,  9; 

90.  Same— A  statute  prescribing  the  qualifications  necessary  for  appointment  as  an  officer 
in  the  Navy,  being  in  derogation  of  the  appointing  power  should  be  strictly  con- 
strued and  not  extended  by  implication  to  include  anything  which  does  not  clearly 
come  within  the  meaning  of  the  language  used.  Pile  8622-2,  Feb.  10, 1908. 

97.  Same—"  The  accused  in  this  case  is  an  officer  holding  a  commission  as  commander 

and  performing  the  duties  of  his  rank.  An  officer  assigned  to  duty  of  importance  in 
command  of  a  vessel  of  the  Navy  must  be  held  to  a  strict  responsibility  for  the  efficient 
performance  of  that  duty.  C.  M.  O.  23,  1916,  2.  See  also  NAVIGATION,  31  (p.  413). 
"It  is  necessary  that  the  Navy  have  officers  who  are  able  successfully  to  discharge 
their  duties  under  more  or  less  unfavorable  conditions."  File  6465-03,  J.  A.  G.,  July 
22, 1903.  See  also  NAVIGATION,  31. 

98.  Quarters — Agreement  as  to.    See  OFFICERS,  3. 

99.  Bank  and  title.    See  RANK;  PRECEDENCE. 

100.  Reduction  In  rating — To  ordinary  seaman.    See  REDUCTION  IN  RATING,  24-27. 

101.  Reprimand— "The  good  order  and  decorum  of  that  service  can  be  maintained  only 

by  a  rigid  observance  of  the  respect  due  to  rank  and  by  condemning  and  restraining 
all  undue  exhibitions  of  temper  by  officers  at  the  expense  of  tne  rights  and  feelings 
of  others. 


OFFICERS.  433 

"When  tinder  the  influence  of  passion,  an  officer  oversteps  the  restrictions  of  dis- 

.cipiine  and  violates  the  rules  of  propriety  in  the  language  he  addresses  to  a  brother 

officer,  it  becomes  the  part  of  those  in  authority  to  administer  to  him  such  a  rebuke 

as  may  remind  him  of  his  duty  and  deter  him  from  again  offending  in  the  same  way. 

"The  indecorous,  violent  and  profane  language"  of  the  accused,  and  his  threatening 
gestures  on  this  occasion,  were  unprovoked.  They  were  applied  to  a  brother  officer 
whose  hands  were  tied  by  the  laws  of  the  Navy,  and  who  could  neither  resent  the 
affront  put  upon  him,  nor  even  reply  to  it.  It  was  neither  just  nor  generous  under 
the  circumstances  thus  to  take  advantage  of  his  own  rank  at  the  expense  of  an  inferior. 

"Some  atonement  was  made  by"  the  accused  by  an  apology  for  his  offense  when 
his  blood  had  time  to  cool.  This,  however,  was  after  he  was  told  that  the  matter 
would  be  reported  to  the  department. 

The  accused  "should  bear  in  mind  that  his  high  standing  in  the  service  enjoins 
upon  him  the  duty  of  restraint  upon  his  anger,  and  he  should  see  hereafter  that  he  be 
not  hurried  into  the  use  of  language  and  into  a  course  of  conduct  toward  others 
calculated  to  wound  their  feelings  and  to  expose  him  to  the  censure  of  authority." 
C.  M.  O.  31,  1881,  2-3.  See  also  APOLOGY,  1;  OFFICERS,  117. 

An  officer  was  censured  for  violating  Navy  Regulations,  1909,  R-226,  and  a  letter 
placed  on  his  record.  File  26836-7:12,  Sec.  Navy,  July  15, 1915. 

102.  Respect — Every  officer  in  the  Navy  should  cherish  a  respect  for  authority,  law,  regula- 

tion, and  gentlemanly  decorum.    G.  O.  213,  June  27,  1870. 

103.  Resignations.    See  RESIGNATIONS. 

104.  Retired  officers.    See  RETIRED  OFFICERS. 

105.  Ruffianly  assault.    See  ASSAULT,  21. 

106.  Secretary  of  the  Navy  not  required  to  place  on  duty  an  officer  guilty  of  offenses 

such  as  render  him  unfit  for  association  with  other  officers  and  their 
families — May  place  him  on  furlough — Where  an  officer  is  found  guilty  of  vulgar 
and  indecent  acts  and  associations,  the  Secretary  of  the  Navy  would  not  be  required 
to  order  him  to  duty,  but  if  not  sentenced  to  dismissal  might  place  him  on  furlough, 
as  authorized  by  section  1442  of  the  Revised  Statutes,  which  would  mean  that,  in 
accordance  with  section  1557  of  the  Revised  Statutes,  he  must  receive  half  pay,  thus 
imposing  expenditures  upon  the  Government  from  the  appropriations  for  the  Naval 
Service  without  receiving  any  return  therefor.  File  26251-11181,  Sec.  Navy,  Dec.  17, 
1915;  G.  C.  M.  Rec.  No.  31436;  C.  M.  O.  49,  1915,  27. 

107.  Seniors— Should  have  proper  attitude  toward  juniors.    C.  M.  O.  41, 1915, 9-10. 

108.  Sentence  disapproved— As  an  approval  would  tend  to  establish  a  precedent  that 

would  convey  a  false  impression  of  the  requirements  of  a  naval  officer  in  the  per- 
formance of  his  duty.  C.  M.  O.  8,  1915,  3. 

109.  Sentences.    See  CONFINEMENT;  HARD  LABOR;  NUMBERS,  Loss  OF;  PAT;  REDUCTION 

IN  RATING;  SUSPENSION  FBOM  DUTY. 

110.  Sentinels — An  officer  who  was  disrespectful,  abusive,  etc.,  to  a  sentinel  was  tried  by 

general  court-martial  under  "Conduct  to  the  prejudice  of  good  order  and  discipline/' 
C.  M.  O.  95,  1893.  See  also  COUNTERSIGN;  SENTINELS,  1. 14. 18;  C.  M.  0. 1, 1917. 

111.  Status  of— Not  affected  by  position  in  Navy  Register.    See  NAVY  REGISTER,  2. 

112.  Superior  officers.    See  OFFICERS,  33;  SUPERIOR  OFFICERS. 

113.  Suspension — Delivery  of  sword.    See  ARREST,  26, 39. 

114.  Suspension  from  duty.    See  SUSPENSION  FROM  DUTY. 

115.  Sword — Surrender  of ,  when  placed  under  arrest.    See  ARREST,  26, 39. 

116.  Technical  pleas  and  quiboles— In  a  certain  case  the  department  availed  itself  of 

the  occasion  to  correct  an  erroneous  impression,  which,  it  would  appear  by  the  line 
of  defense  adopted  in  behalf  of  an  officer  tried  by  general  court-martial,  is  entertained 
as  to  the  responsibility  of  commanding  and  navigating  officers.  If  public  property 
to  a  large  amount  is  lost,  and  the  lives  of  a  numerous  crew  are  placed  in  imminent 
jeopardy  while  under  the  care  of  officers  whose  special  duty  it  is  to  guard  them  from 
danger,  and  who  are  well  compensated  for  the  discharge  of  this  duty,  the  department, 
as  well  as  the  public,  will  cast  upon  these  Officers  the  burden  of  proving  that  the  loss 
did  not  occur  from  any  negligence  on  their  part,  and  they  will  not  be  permitted  by 
a  military  court  to  profit  by  the  technical  pleas  and  quibbles  which  have  been  worn 
out  in  the  service  of  petty  criminals  before  the  lowest  civil  courts.  G.  O.  86,  Dec. 
30, 1867.  See  also  OFFICERS,  88. 

117.  Temper,  loss  of— In  losing  control  of  his  temper,  even  though  the  provocation  is 

exceedingly  great,  and  in  resorting  to  vile  epithets,  an  officer  shows  a  lack  of  judg- 
ment and  a  lack  of  observance  of  military  propriety  which  reflects  upon  himself 


434  OFFICERS. 

rather  than  upon  the  person  who  oflends  him  and  he  thereby  causes  a  diminution 
of  the  respect  and  confidence  which  he  has  enjoyed,  and  which  would  have  been 
increased  nad  he  kept  control  of  his  speech  and  taken  proper  measures  in  seeking 
redress  for  the  wrongs  which  he  felt  had  been  done  to  him  by  his  subordinate.  C. 
M.  O.  45,  1909.  See  also  OFFICERS,  101. 

118.  Threatening  letter — Naval  officer  tried  by  general  court-martial  for  writing  a  threat- 

ening letter  to  his  senior.    G.  O.  137,  Sept.  7,  1869.    File  20251-12159. 

119.  Trial  by  court-martial — The  only  court-martial  which  has  jurisdiction  to  try  com- 

missioned officers  of  the  naval  service  is  the  general  court-martial.    C.  M.  O.  7, 1914, 9. 

120.  Unbecoming  attitude— On  part  of  senior  is  subversive  to  good  order  and  discipline. 

C.  M.  O.  41,  1915,  9-10. 

121.  "Untruthful"— Officer  branded  as  untruthful.    C.  M.  O.  24, 1910. 

122.  Vile  epithets— Used  by  officer.    See  C.  M.  O.  18, 1910,  2;  OFFERS  117. 

123.  Violating  civil  law — Exceeding  speed  limit — Tried  by  general  court-martial.    G.  C.  M. 
Rec.,  31509,  p.  6  of  the  charges  and  specifications. 

124.  Vulgar  and  indecent  acts.    See  OFFICERS,  106. 

125.  Warrant  officers.    See  WARRANT  OFFICERS. 

126.  Watch  officers.    See  OFFICER-OF-THE-DECK;  WATCH  OFFICERS. 

OFFICER  OF  THE  DAY.    See  also  JUDGE  ADVOCATE.  75. 

1.  Responsibility  of — The  officer  of  the  day,  under  the  direction  of  the  commanding 

officer  is  responsible  for  the  perfect  execution  of  the  post  routine.  The  supervision 
of  such,  minor  details  as  the  position  of  the  colors  on  the  flagstaff  and  the  proper 
sounding  of  the  bugle  calls  are  as  much  a  part  of  his  military  duties  as  the  inspection 
of  reliefs  of  the  guard,  and  are  no  more  beneath  his  dignity.  Moreover,  it  is  the 
attention  to  or  neglect  of  such  small  details,  as  well  as  the  more  important  ones,  that 
marks  the  distinction  between  an  efficient  and  an  inefficient  post.  C.  M.  0. 4, 1911, 1. 

2.  Tried  by  general  court-martial.    C.  M.  O.  35,  1916. 

OFFICER-OF-THE-DECK.    See  also  NAVIGATION. 

1.  Authority  and  responsibility  of.    Sec  OFFICER-OF-THE-DECK,  8-11. 

2.  Bunk — Offlcer-of-the-deck  tried  by  general  court-martial  for  being  in  his  bunk  in  his 

stateroom,  while  the  all-hands  evolution  of  coaling  ship  was  in  progress.  C.  M.  O. 
15,  1909. 

3.  Cigarette  smoking— There  is  no  occasion  for  an  officer  while  on  duty  as  officer-of-the- 

deck  for  smoking  a  cigarette,  and,  if  doing  so  brings  on  nausea  and  a  state  of  irre- 
sponsibility, his  condition  should  be  considered  as  due  to  his  own  misconduct  or,  at 
least,  carelessness  and  indifference  in  the  performance  of  duty,  and  instead  of  going 
to  mitigate  the  other  offenses  should  aggravate  them.  C.  M.  O.  25,  1909,  2. 

4.  Drunk.    See  DRUNKENNESS,  99. 

5.  Lying  down  while  on  duty — A  "master"  who  was  on  duty  as  officer-of-the-deck  on 

board  the  U.  S.  S.  Yantic  "did  spread  a  pea-coat  on  an  arm-chest  near  the  cabin 
companionway  on  the  poop  deck,  and  did  lie  down,"  when  a  "Norther"  was  antici- 
pated—Tried by  general  court-martial.  C.  M.  0. 16, 1882. 

0.  Navigation — Officer-of-the-dock  tried  by  general  court-martial  for  neglecting  and  fail- 
ing to  exercise  proper  care  in  navigating  vessel  while  approaching  certain  reefs,  in  that 
he  neglected  and  failed  to  lay  a  proper  course  in  consequence  of  which  the  vessel  was 
stranded  on  a  reef.  C.  M.  O.  25,  1909. 

Tried  by  general  court-martial  for  changing  course  without  notifying  commanding 
officer.    C.  M.  0. 30, 1909. 

7.  Same— If  there  is  an  emergency,  such  as  imminent  danger  of  collision,  the  officer-of-the 

deck  should  change  the  vessel's  course  without  orders  from  the  commanding  officer 
and  shall  report  his  action  to  the  commanding  officer  without  delay.  C.  M.  O.  44, 
1833,3.  See  also  EMERGENCY^;  ORDERS,  26,  49. 

8.  Representative  of  commanding  officer. — The  officer-of-the-deck  as  representative 

of  the  commanding  officer  of  a  naval  vessel  is  entitled  to  obedience  from  all  officers 
of  whatever  rank,  whether  of  line  or  staff.  C.  M.  O.  67, 1892,  2. 

9.  Responsibilities  of — Few  men  have  greater  responsibility  of  property,  life  and  national 

honor  immediately  resting  upon  them  than  a  watch  officer  of  a  vessel  of  war  while  at 
sea.  An  officer  who  is  guilty  of  drunkenness,  when  liable  to  be  called  upon  to  assume 
this  responsibility,  commits' a  crime  of  the  gravest  nature,  for  the  consequences  of  his 
crime  may  be  fatal  to  his  ship  and  to  all  on  board.  C.  M.  0. 22, 1884,  2. 


OFFICER-OF-THE-DECK.  435 

10.  Same— The  officer-of-the-deck  for  the  time  being,  is  vested,  in  case  of  emergency,  with 
the  entire  control  of  the  vessel's  movements.  While  under  ordinary  circumstances, 
he  should  not  change  her  course  without  orders  from  the  commanding  officer,  yet,  if 
there  is  danger  of  collision,  he  should  promptly  so  change  it,  according  to  his  judg- 
ment, as  to  avoid  the  danger.  The  authority  thus  vested  in  him  is  absolute;  the  only 
limitation  being  that  he  shall  report  his  action  to  the  C9mmanding  officer  without 
delay.  The  power  conferred  carries  with  it  a  corresponding  degree  of  responsibility, 
and  the  officer  who,  while  entrusted  with  it,  fails  hi  its  proper  exercise,  either  in  giving 
the  necessary  order  or  in  seeing  it  obeyed,  must  be  held  responsible  for  the  con- 
sequence of  his  neglect.  C.  M.  O.  44,  1883,  3,  quoted  with  approval  in  C.  M.  O.  4, 
1914,  9,  with  approval. 

.  11.  Same — The  importance  of  a  proper  performance  of  duty  by  an  officer  hi  charge  of  the 
deck  of  a  vessel  at  sea  can  not  be  overestimated.  This  includes  not  merely  a  vigilant 
lookout  and  prompt  action  on  his  own  part;  it  requires  that  he  shall  also  see  that  his 
orders  are  carried  into  effect.  If  he  is  negligent  in  this  particular,  he  suffers  the  neglect 
of  others  to  impair  his  own  efficiency  and  to  bring  about  disaster.  C.  M.  0. 41, 1883/2. 

12.  "  Sleeping  on  watch  " — In  a  case  where  an  officer-of-the-deck  was  found  guilty  on 

his  own  plea  of  "Sleeping  on  watch"  the  department  stated  in  part:  The  charge  and 
specification  to  which  the  accused  pleaded  guilty,  were  based  upon  an  offense, "  Sleep- 
ing on  watch,"  which,  while  wholly  inconsistent  with  the  general  obligation  of  all 
officers  to  perform  their  duties  faithfully,  is  especially  so,  considering  the  peculiar 
nature  of  the  duty  entrusted  to  a  watch  officer.  As  officer-of-the-deck  during  those 
hours  of  the  night  when  vigilance  is  the  most  indispensable  requisite,  the  accused  was 
charged  with  a  special  responsibility.  It  was  his  duty  not  only  to  be  vigilant  himself 
but  to  see  that  his  subordinates  in  the  watch,  for  the  time  being,  were  equally  so. 
Instead  of  appreciating  that  responsibility  as  he  should  have  done  he  apparently 
relied  upon  the  vigilance  of  others  rather  than  upon  his  own."  C.  M.  O.  43, 1884.  2. 

13.  Same — An  officer-of-the-deck  was  found  guilty  of  "Sleeping  upon  his  watch."    The 

Secretary  of  the  Navy  felt  it  incumbent  upon  him  to  express  in  most  emphatic  terms 
his  disapproval  of  the  conduct  of  the  accused .  Part  of  the  defense  was  that  the  accused 
was  ill.  "Sickness  has  never  been  regarded  as  an  excuse  even  in  the  case  of  an  en- 
listed man  for  his  abandoning  his  station  before  being  regularly  relieved,  neither 
should  it  be  so  considered  in  the  case  of  an  officer-of-the-deck  of  a  battleship  who, 
because  of  his  experience,  is  bound  to  be  cognizant  of  means  by  which,  if  indisposed, 
he  could  be  regularly  relieved."  The  accused's  conduct  was  reprehensible  and  merits 
arid  receives  the  censure  of  the  department.  He  has  shown  himself  unfitted  for  the 
responsible  duties  of  an  officer  of  the  Navy.  C.  M.  O.  25,  1910,  2. 

14.  Same— Officer-of-the-deck  was  found  guilty  of  "Drunkenness  on  duty"  and  "Sleeping 

on  watch,"  while  ship  was  underway.    C.  M.  O.  34,  1912,  2. 

OFFICERS  OF  THE  UNITED  STATES.    See  also  DECORATIONS. 

1.  Accepting  office  from  foreign  States — Article  I.  section  9,  clause  8,  of  the  Constitu- 

tion of  the  United  States  prohibits  any  person  holding  any  office  of  profit  or  trust 
under  the  United  States  from  holding  or  accepting  any  office,  present,  emolument,  or 
title  from  any  foreign  State,  unless  Congress  shall  consent  thereto.  While  officers  of 
the  United  States  on  duty  in  Haiti  could  not,  without  the  consent  of  Congress,  hold 
office,  receive  emolument,  etc.,  under  the  Haitian  Government,  they  are  not  pro- 
hibited by  the  Constitution  or  any  law  of  the  United  States  "from  rendering  a 
friendly  service"  to  that  State,  such  as  assisting  to  organize  a  gendarmerie  (See  Op.  13 
Atty.  Gen.  537,  538).  However,  at  the  present  date  there  is  no  authority  whereby 
such  officers  could  become  officers  in  such  a  force  by  appointment  from  the  Govern- 
ment of  Haiti.  File  5526-33,  Sec.  Navy,  Oct.  28, 1915;  C.  M.  O.  35, 1915, 11. 

2.  Accepting  decorations,  etc.    See  DECORATIONS. 

3.  Definition.   See  "OFFICE,"  4. 

OFFICIAL  CHANNELS. 

1.  Military  orders — The  right  of  a  commanding  officer  of  a  fleet,  division,  squadron,  or 
naval  station,  to  address  a  proper  military  order  of  any  kind  to  an  officer  under  his 
command,  through  the  usual  official  channels,  can  not  be  questioned.  (See  File 
4469,  Mar.  22, 1906j  placing  a  Marine  officer  under  arrest;  and  File  6489,  Jan.  14, 1907, 
suspending  an  ensign.)  Li  these  cases  the  orders  were  addressed  to  the  offenders  by 
name,  through  the  immediate  commanding  officer,  which  procedure  was  upheld  by 
the  department.  See  File  2649-9,  Dec.  5, 1906.  See  also  File  27958-4,  Sec.  Navy, 
Aug.  18, 1916. 


436  OPINION. 

OFFICIAL  COMMUNICATIONS. 

1.  Titles — "All  official  communications  intended  for  officers  holding  positions  with  recog- 
nized titles  shall  be  addressed  to  them  by  title  and  not  by  name,  as  'The  Secretary  of 
the  Navy,'  'Bureau  of  Navigation,'  'The  Commandant,'  'The  Commander  in  Chief, 

Fleet  (or  Squadron).'  'The  Commander, Squadron  (or  Division)  ' 

'The  Commanding  Officer.'  'The  Major  General  Commandant,  Marine  Corps/'1 
(Naval  Instructions,  1913,  1-5322  (2).)  File  9160-5990,  Sec.  Navy,  Nov.  15,  1915. 
See  also  File  20400-68,  MAT-4-ML,  Sec.  Navy,  Sept.  6, 1916;  DESIGNATIONS,  1. 

OFFICIAL  CORRESPONDENCE.    See  CORRESPONDENCE;  OFFICIAL  COMMUNICATIONS. 

OFFICIAL  RECORDS. 

1.  Desertion— Proof  of  by.    C.  M  O.  28, 1904,  3-4.    See  also  SERVICE  RECORDS. 

2.  Evidence,  as.    C.  M.  0. 28, 1904, 3-4;  31, 1915, 14-16.    See  also  EVIDENCE,  DOCUMENTARY. 

OHIO  NAVAL  MIUTIA.    See  COLLISION,  14;  NAVAL  MILITIA,  3. 
OLONGAPO,  P.  I. 

1.  Jurisdiction— And  powers  of  Navy  over  Naval  Reservation,  Subig  Bay,  P.  I.  See 
JURISDICTION,  94-%.  See  also  26  Op.  Atty.  Gen.  91;  File  681-04. 

"ONE  OFFICER"  BOARD  OF  INVESTIGATION.    See  BOARDS  OF  INVESTIGATION,  15. 
"ONE  OFFICER"  BOARD  OF  MEDICAL  EXAMINERS.    See  BOARDS,  1. 
"ONE  OFFICER"  COURT  OF  INQUD1Y.   See  COURTS  OF  INQUIRY,  38, 39. 
"OPEN  COURT."    See  COURT,  126, 127. 

OPENING  MAIL. 

1.  Enlisted  man — Tried  by  general  court-martial  for  unlawfully  opening  mail.  C.  M.  O. 
6, 1915,  3. 

OPERATIONS.    See  SURGICAL  OPERATIONS. 

OPINION. 

1.  Board  of  Inquest — Opinion  to  be  expressed  on  line  of  duty  and  misconduct.    See 

BOARDS  OF  INQUEST,  5. 

2.  Challenges— Members  of  courts-martial  expressing  opinions  as  to  guilt  or  innocenea 

of  accused.    See  CHALLENGES,  16, 17. 

3.  Court — Should  not  allow  witnesses  to  state  directly  their  opinions  as  to  guilt  or  inno- 

cence of  accused.    See  EXPERT  WITNESSES,  12, 13;  OPINION,  15. 

4.  Drunkenness.    See  OPINION,  17. 

6.  Evidence— Expert  witnesses.    See  EXPERT  WITNESSES,  12, 13. 

6.  Same — From  the  examination  of  a  general  court-martial  record  it  appeared  that  the 

following  question  was  asked  a  witness  for  the  prosecution: 

"  Was  the  slap  y9U  received  from  the  accused  given  without  provocation  or  justi- 
fiable cause  and  with  malicious  intent?"  and  that  questions  of  a  similar  character, 
in  effect  calling  for  opinion,  and  thus  clearly  improper,  were  asked  of  other  witnesses. 
Inasmuch,  however,  as  the  accused  was  acquitted  upon  the  charge  to  which  the  testi- 
mony relates,  and  was  found  guilty  only  of  the  charges  to  which  he  so  pleaded,  the 
putting  of  such  questions  was  regarded  by  the  department  as  error  without  injury, 
and  the  sentence  was  approved.  C.  M.  O.  59,  1898.  See  also  C.  M.  O.  41, 1909, 1.  > 

7.  Expert  witnesses — Expression  of  opinions.    See  EXPERT  WITNESSES,  12, 13. 

8.  General  courts-martial — Member  disclosing  opinion  of  other  members,  etc.    See 

CRITICISM  OF  COURT-MARTIAL,  22,  35,  36. 

9.  Judge  Advocate — Opinion  allowed  on  record   of  proceedings.    See  JUDGE  ADVO- 

CATE, 59,  97. 

10.  Members  of  courts-martial— Expressing  opinion  as  to  guilt  or  innocence  of  accused 

subject  to  challenge.    See  CHALLENGES,  16, 17. 

11.  Same—  Divulging  opinions  of  other  members.    See  CRITICISM  OF  COURTS-MARTIAL,  22, 

35, 36;  OATHS,  47;  REPORTS  9N  FITNESS,  3. 

12.  Record  ol  Proceedings — Opinion  of  judge  advocate  allowed  in  record.    See  JUDGE 

ADVOCATE,  59, 97. 

13.  Sanity.   See  OPINION,  17. 

14.  Summary  courts-martial— Members  d  isclosing  opinions.    See  CRITICISM  OF  COURTS- 

MARTIAL,  36;  OATHS,  47;  REPORTS  ON  FITNESS,  3. 


OPINION.  437 

15.  Witnesses — "  It  was  decidedly  irregular  and  improper  for  the  court  to  allow  the  witness 

to  be  questioned  upon  the  legal  point  that  the  court  had  been  assembled  to  decide. 
Witnesses  are  not  competent  to  express  opinions  upon  points'  of  law  nor  to  apply 
the  standard  of  law  involved  in  the  case.  Evidence  should  be  confined  to  testimony 
of  facts;  the  inferences  to  be  drawn  from  the  established  facts,  must  be  drawn  by  the 
court  alone. 

The  question  whether  or  not  the  accused  is  guilty  or  innocent  is  the  very  question 
which  the  court  must  determine,  and  the  action'of  the  court  in  allowing  a  witness 
to  state  directly  his  opinion  upon  the  specific  question  is  irregular.  (See  Index- 
Digest,  1914,  p.  20;  G.  C.  M.  Rec.  No.  31458,  action  of  C.  A.).  C.  M.  O.  49,  1915,  15. 
See  also  C.  M.  O.  22, 1916;  161, 1902;  Ct.  Inq.  Rec.  4952,  p.  48;  COURT  199. 

16.  Same — Expert  witnesses  expressing  opinions.    See  EXPERT  WITNESSES,  12, 13. 

17.  Same — Must  state  facts  not  opinions — Witnesses  must  confine  themselves  to  state- 

ments of  fact.  Opinions  are  not  admissible,  except  in  three  cases,  as  follows:  (a) 
Opinions  which  are  conclusions  drawn  from  numerous  facts  within  the  daily  observa- 
tion and  experience  of  a  witness.  Such  relate  to  the  demeanor  or  appearance  of  a 
person;  his  sanity,  sobriety,  or  identity,  or  his  resemblance  to  another;  his  physical 
condition,  whether  sick  or  well;  his  condition  as  regards  emotion  or  passion,  as  to 
anger,  hope  or  fear,  joy  or  sorrow,  excitement  or  coolness,  and  the  like.  These  are 
matters  or  everyday  occurrence  with  respect  to  which  all  thoughtful  persons  form  con- 
clusions of  fact,  to  which  they  are  competent  to  testify  in  a  proper  case;  (b)  opinions 
of  experts;  (c)  opinions  as  to  handwriting.  (Forms  of  Procedure,  1910,  pp.  139-140.) 

OPINIONS  AND  DECISIONS    DEFINED  AND  DISTINGUISHED.    See  JUDGE 
ADVOCATE  GENERAL,  30. 

"OB  OTHERWISE."    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  85. 
ORAL  ARGUMENTS.    See  ARGUMENTS,  4;  BRIEFS,  1. 

ORDERS.    See  also  DISOBEDIENCE  OF  ORDERS;  EMERGENCY;  OBEDIENCE. 

1.  Accomplice — Officer  issuing  illegal  order  which  is  obeyed  is  an  accomplice,  etc.    See 

2.  Ambiguous  orders— Issued  by  a  commanding  officer  caused  the  loss  of  certain  target 

rafts.    File  26262-1194,  J.  A.  G.,  June  16,  1911,  p.  3. 

3.  Annulling— Attention  is  invited  to  article  1716,  paragraph  2,  United  States  Navy 

Regulations,  1909  [Navy  Regulations,  1913,  R-727  (2)],  as  follows: 

"In  case  of  an  order  from  a  superior  officer  the  provisions  of  article  221,  paragraph 
2,  shall  be  complied  with.  The  report  of  circumstances  shall  be  forwarded  by  the 
member  receiving  such  order  to  the  convening  authority  through  the  president  of 
the  court,  and  a  copy  of  such  report  shall  be  attached  to  the  record  of  each  case  to 
which  it  applies." 

Also  to  article  221,  paragraph  2.  United  States  Navy  Regulations,  1909  [Navy 
Regulations.  1913,  R-1513  (2)],  as  follows: 

"If  an  officer  receives  an  order  from  a  superior  annulling,  suspending,  or  modi- 
fying one  from  another  superior,  or  one  contrary  to  instructions  or  orders  from  the 
Secretary  of  the  Navy,  he  shall  exhibit  his  orders,  unless  confidential  and  he  has  been 
forbidden  to  do  so,  and  represent  the  facts  in  writing  to  the  superior  from  whom  the 
last  order  was  received.  If,  after  such  representation,  the  latter  shall  insist  upon  the 
execution  of  his  order,  it  shall  be  obeyed,  and  the  officer  receiving  and  executing  it 
shall  report  the  circumstances  to  the  superior  from  whom  he  received  the  original 
order."  C.  M.  O.  23, 1912, 5-6. 

4.  Appeals  from — The  proper  course  for  subordinate  upon  receiving  an  order  which 

requires  the  doing  of  an  illegal  act  is  to  appeal  to  the  officer  issuing  the  order,  or  if 
necessary  to  higher  authority,  for  revocation,  modification,  or  correction  thereof. 
[See  APPEALS  11.)  But  where  there  is  an  emergency  which  will  not  permit  of  delay, 
he  should  disregard  the  order  without  such  appeal.  C.  M.  O.  37, 1915. 

5.  Same — In  time  of  peace  at  least  an  officer  is  not  obliged  to  obey  an  illegal  order.    It 

becomes  his  duty,  at  once,  or  within  a  reasonable  time,  to  appeal  to  the  highest 
authority  for  revocation,  modification,  or  correction  of  the  illegal  order.  (Ide  v.  U.  S. , 
25  Ct.  Cls.  407;  150  U.  S.  517.)  See  C.  M.  O.  37, 1915. 

6.  Boilers  exploding — As  a  result  of  obedience  to  an  illegal  order.    See  C.  M.  O.  37, 1915. 

7.  Carried  out— An  officer  is  under  a  duty  to  see  that  the  orders  he  gives  are  carried  out. 

C.  M.  O.  41, 1883,  2;  44, 1883,  3. 


438  ORDERS. 

8.  Chance— Orders  to  take  a  "chance."    See  C.  M.  O.  37, 1915. 5. 

9.  Comptroller  of  the  Treasury — Can  not  relieve  officers  of  duty  to  obey  orders.    See 

COMPTROLLER  OF  THE  TREASURY,  8. 

10.  Confession— Orders  to  make  a  confession.    See  CONFESSIONS,  17, 18. 

11.  Confidential  orders.    See  ORDERS,  3. 

12.  Conflicting  orders.    See  ORDERS,  3. 

13.  Contempt  of  authority—"  Whoever  deliberately  disobeys  an  order  given  by  com- 

petent authority  is  in  legal  contempt  of  such  authority."    G.  0. 182,  April  2, 1873. 

14.  Correction  of  orders.    See  ORDERS,  3. 

15.  Countermanding — An  officer  was  tried  by  general  court-martial  for  unlawfully  and 

unjustifiably  countermanding  certain  lawful  order,i  issued  to  the  coxswain  of  a  steam 
launch  by  a  patrol  officer.  C.  M.  0. 10, 1908, 1. 

16.  Court-martial  duty.    See  CONVENING  AUTHORITY,  32;  COURT,  34-51. 

17.  Danger,  time  of.    See  COLLISION,  17, 19;  COMMANDING  OFFICERS,  38;  ORDERS,  53. 

18.  Debts— Orders  to  pay.    See  DEBTS,  17, 18; 

19.  Decisions  of  the  department — As  an  order  or  command.    See  JUDGE  ADVOCATE 

GENERAL,  30. 

20.  Defense— An  officer  tried  by  general  court-martial  for  "Culpable  inefficiency  in  the  per- 

formance of  duty  "  and  "  Neglect  of  duty  "  based  his  defense  upon  the  fact  that  he  had 
received  orders  to  expedite  the  loading  of  his  vessel  and  to  proceed  to  sea  and  to  his 
destination  with,  despatch,  believing  that  an  emergency  existed.  File  26262-1194, 
J.  A.  G.,  June  16, 1911.  See  also  ORDERS,  52. 

21.  Deviation  from.    See  ORDERS,  3,  52. 

22.  Disbursing  officers— Orders  by  commanding  officers  to  make  payments.    See  DIS- 

BURSING OFFICERS.  10;  PAY  OFFICERS,  4. 

23.  Disobedience  of  orders.    See  DISOBEDIENCE  OF  ORDERS. 

24.  Division  commander— A  division  commander  gives  an  order  "  Head  for  the  light, 

Captain,"  to  the  command  ing  officer  of  his  flagship.  The  commanding  officer  enters 
no  protest,  but  gives  the  necessary  orders.  The  ship  goes  aground.  Division  com- 
mander, commanding  officer,  and  navigator  are  tried  by  general  court-mgrtial.  See 
C.  M.  O.  24,  1916;  26, 1916;  27,  1916;  NAVIGATION.  31. 

25.  Drunkenness— No  excuse  for  not  obeying  orders.    See  DRUNKENNESS,  36. 

26.  Emergency — Senior  officer  actually  present  on  the  spot  has  duty  of  taking  necessary 

action  upon  his  own  initiative  to  prevent  injury  to  lives  and  property  under  his  charge ; 
and  where  the  emergency  is  immediate  and  urgent  he  is  not  justified  in  delaying  the 
necessary  action  because  of  an  order  issued  by  his  superior  officer  before  the  emergency 
occurred  and  under  a  materially  different  state  of  facts.  C.  M.  O.  37,  1915,  1.  See 
also  EMERGENCY,  1:  ORDERS,  49. 

27.  Examination  for  promotion— In  Navy  prior  to  a  vacancy.    See  PROMOTION,  132. 

28.  Excuse — Only  valid  excuse  for  disobedience  of  orders  is  a  physical  impossibility  to 

obey  them.    See  ORDERS,  52. 

29.  Failure  to  obey  promptly — Failure  promptly  to  obey  a  military  order  is  not  to  be  justi- 

fied by  the  fact  that  a  subordinate  and  his  commanding  officer  entertain  different 
views  as  to  the  interpretation  of  some  minor  provision  of  law  or  regulation.  If  the 
superior  is  wrong,  his  is  the  responsibility.  File  1192-1,  Sec.  Navy,  Mar.  21, 1905. 

"In  assuming  that  he  should  wait  for  a  second  order  when  first  order  had  not  been 
rescinded,  Ensign  *  *  *  did  not  show  that  appreciation  of  discipline  which  is 
expected  of  a  commissioned  officer  in  the  Navy.  His  failure  to  carry  out  his 
orders  showed  a  dilatoriness  which  the  department  considers  reprehensible." 
C.  M.  O.  3,  1912,  3. 

30.  Folly  resulting  from  obedience.    See  ORDERS,  47. 

31.  General  orders — Legality  of.    See  GENERAL  ORDERS,  3. 

32.  "Good  of  service  required"  deviation  from  orders.    See  ORDERS,  52. 

33.  Illegal  orders — An  officer  refused  to  obey  an  order  on  ground  "he  did  not  consider  it  a 

legal  order."    G.  0. 140,  Sept.  17, 1869. 

Illegal  action  can  not  be  justified  by  the  order  of  superior  authority  where  the 
circumstances  are  such  that  the  sulx>rdinate  should  have  recognized  the  illegality 
of  the  order  as  applied  to  the  action  which  it  commanded.  C.  M.  Q.  37,  1915,  1. 

34.  Inferior,  order  of— Of  equal  importance  with  prompt  and  unquestioning  obedience 

to  the  orders  of  a  superior,  is  the  necessity  for  immediate  compliance  with  the  orders 
of  an  inferior  who,  while  filling  a  position  of  trust,  as  a  sentinel,  without  independent 
authority,  has  a  most  delicate  duty  to  perform  in  compelling  compliance  witn  orders 
by  a  superior  in  rank.  C.  M.  0. 95, 1893,  3.  See  also  ORDERS,  60;  SENTINELS,  14,  18, 


ORDERS.  439 

35.  Judge  advocates— Orders  to  court-martial  duty.    See  CONVENING  AUTHORITY,  32; 

COURT,  34-51;  JUDGE  ADVOCATE.  ,  98-102. 

36.  Judgment,  mistake  of.    See  ORDERS,  45. 

37.  Lawful  orders — A  person  is  bound  to  obey  only  lawful  orders.    C.  M.  O.  37, 1915,  7. 

38.  Same — A  medical  officer  was  ordered  by  his  commanding  officer  to  take  pfl  of  the 

binnacle  list  the  name  of  an  ordinary  seaman.  On  receiving  this  positive  order, 
the  medical  officer  retired  without  refusing  to  obey,  and  the  commanding  officer 
rested  during  the  day,  under  the  impression  that  it  had  been  complied  with.  In 
the  afternoon  of  the  same  day,  however,  finding  that  this  was  not  the  case,  he  sent  for 


time,  alleging  as  a  reason,  that  he  could  not  conscientiously  obey  said  order.  He 
was  therefore  ordered  to  consider  himself  under  arrest,  and  the  original  order  was 
given  to,  and  obeyed  by,  another  officer. 

In  this  case  the  officer  was  directed,  not  to  declare  any  false  opinion,  nor  to  inflict 
on  any  individual  any  act  of  false  practice  in  his  profession,  but  merely  to  take  the 
name  off  of  a  list  made  by  him  and  under  his  immediate  supervision,  to  do,  by  order 
of  his  commanding  officer,  a  specific  affirmative  act,  the  only  result  of  which  was 
clearly  within  the  authority  of  the  officer  giving  the  order.  For  that  result  the 
officer  receiving  the  order  had  no  responsibility. 

The  officer  retained  his  right  to  remonstrate;  to  continue  his  treatment  and  record  of 
the  case,  to  enter  his  respectful  protest  on  his  journal;  to  report  to  the  department 
and  to  prefer  charges  for  unnecessary  hardship  and  wrong;  but  it  remained  with  the 
responsible  commander  alone  to  determine  what  duty,  what  exposure  of  life,  if 
need  be,  the  interests  or  exigency  of  the  service  required  from  each  of  the  officers  and 
crew  of  his  ship.  G.  0. 140,"  Sept.  17, 1869. 

39.  Same— Defined— It  is  not  questioned,  and  it  has  been  repeatedly  recognized  by  the 
courts,  that  the  first  duty  of  a  military  man  is  obedience,  and  that  without  this  there 
can  be  neither  discipline  nor  efficiency  in  the  military  forces.  (See  General  Orders 
Nos.  140,  Sept.  17, 1809,  and  182,  Apr.  2, 1873.)  In  the  language  of  the  Supreme  Court, 
"an  army  is  not  a  deliberative  body.  It  is  the  executive  arm.  Its  law  is  that  of  obe- 
dience. No  question  can  be  left  open  as  to  the  right  to  command  in  the  officer,  or 
the  duty  of  obedience  in  the  soldier."  (In  re  Grimley,  137  U.  S.  153.)  But  it  is 
equally  well  settled  that  a  person  in  the  military  service  is  bound  to  obey  only  the 
lawful  orders  of  his  superiors.  If  he  receives  an  order  to  do  an  unlawful  act,  he  is 
bound  neither  by  his  duty  nor  his  oath  to  do  it.  "So  far  from  such  an  order  being  a 
justification,  it  makes  the  party  giving  the  order  an  accomplice  in  the  crime."  (U.S. 
v.  Carr,  25  Fed.  Cas.  No.  14732.)  Quoting  again  from  the  Supreme  Court,  "it  can 
never  be  maintained  that  a  military  officer  can  justify  himself  for  doing  an  unlawful 
act  by  producing  the  order  of  his  superior.  The  order  mav  palliate,  but  it  can  not 
justify."  (Mitchell  v.  Harmony,  13  How.  115.  See  also  L.  R.  A.,  1915  A,  1141,  note 
to  Franks  v.  Smith,  142  Ky.  232,  131  S.  W.  484.) 

The  courts  have  repeatedly  recognized  that  a  military  command  is  not  to  be  turned 
into  a  debating  school,  upon  the  receipt  of  orders  from  superior  authority,  with  the 
result  that  the  precious  moment  for  action  may  be  wasted  in  wordy  conflicts  between 
the  advocates  of  various  opinions  as  to  the  validity  or  invalidity  of  the  orders  (In 
re  Fair,  100  Fed.  Rep.  149;  U.  S.  v.  Lipsett,  156  Fed.  Rep.  71;  McCall  v.  McDowell,  15 
Fed.  Cas.  No.  8673;  U.  S.  v.  Clark,  31  Fed.  Rep.  710.  716);  and  therefore,  while  holding 
on  the  one  hand  that  illegal  action  can  not  be  justified  by  orders  from  superior  author- 
ity, on  the  other  hand  the  general  duty  of  implicit  obedience  is  never  altogether 
overlooked.  The  result  has  been  that  somn  courts  have  endeavored  to  formulate  a 
rule  to  the  effect  that  the  military  subordinate  is  protected  in  obeying  an  order  of 
his  superior  "which  does  not  expressly  or  clearly  show  on  its  lace  its  illegality"  (In 
re  Fair,  100  Fed.  Rep.  149).  The  most  liberal  statement  for  the  protection  of  the  sub- 
ordinate who  renders  obedience  is  as  follows:  "Except  in  a  plain  case  of  excess  of 
authority,  where  at  first  blush  it  is  apparent  and  palpable  to  the  commonest  under- 
standing that  the  order  is  illegal,  I  can  not  but  think  that  the  law  should  excuse  the 
military  subordinate  when  acting  in  obedience  to  the  order  of  his  commander  "  (McCall 
V.  McDowell,  15  Fed.  Cas.  No.  8673).  See  G.  C.  M.  Rec.  32389,  p.  90. 

The  Supreme  Court  has  not  yet  gone  so  far  as  to  subscribe  to  tnis  modification  of 
the  rule  that  an  illegal  order  can  not  be  a  defense  to  a  criminal  charge  but  results 
merely  in  making  the  party  giving  the  order  an  accomplice  in  the  crime;  however,  the 
department  does  not  hesitate  in  saying  that,  in  so  far  as  proceedings  by  courts-martial 


440  ORDERS. 

are  concerned,  a  subordinate  might,  under  certain  conditions,  justify  Illegal  action 
by  an  order  from  superior  authority,  provided  the  order  was  not  such  that  the  sub- 
ordinate should  have  recognized  its  illegality  as  applied  to  the  action  which  it  com- 
manded. C.  M.  O.  37,  1915,  7-8. 

40.  Legality  of  general  orders  —As  to  requirements  in  a  general  order.    See  GENEEAL 

ORDERS,  3. 

41.  Manual  labor — An  officer  attempted  to  justify  his  disobedience  of  orders  on  the  ground 

that  it  was  to  perform  manual  labor.  The  department  stated:  "  Manual  labor  is  not 
dishonorable  in  itself,  and  whenever  any  species  of  work,  manualor  otherwise,  becomes 
necessary  under  any  exigency  in  which  any  officer  is  placed,  or  is  required  by  tne 
conditions  of  any  duty  to  which  he  is  ordered,  or  is  prescribed  by  proper  authority  for 
his  instruction  or  practice,  or  to  qualify  him  to  instruct  others,  then  such  work  is  not 
only  honorable,  but  is  most  officer-like,  and  specially  becoming  to  those  who,  in- 
trusted, by  tne  favor  of  the  Government  with  command  in  the  service,  are  intrusted 
also  with  the  preservation  of  its  efficiency."  This  ground  is  false  in  itself,  and  if  al- 
lowed the  natural  result  of  it  would  be  to  strike  at  the  foundation  of  all  discipline 
and  efficiency  in  the  service.  G.  0. 182,  Apr.  2,  1873. 

42.  Members  of  courts-martial— Orders  to  duty.    See  CONVENING  AUTHORITY,  32; 

COURT,  34-51;  MEMBERS  OF  COURTS-MARTIAL. 

43.  Si  me — Absent  by  reason  of  an  order  of  a  superior  officer.    See  MEMBERS  OF  COURTS- 

MARTIAL,  2;  ORDERS,  3. 

44.  Same— Orders  by  Secretary  of  Navy  detaching  an  officer  who  is  also  a  member  of  a 

general  court-martial  convened  by  Secretary  of  Navy  will  operate  to  relieve  such 
officer  from  the  general  court-martial.  See  MEMBERS  OF  COURTS-MARTIAL,  37. 

45.  Mistake  of  Judgment-^Disobedience  of  orders  caused  by  a  mistake  of  judgment  in 

regard  to  professional  rights  and  duties,  rather  than  a  deliberate  intention  of  wrong, 
rarely  require  a  severe,  and  never  a  disgraceful,  punishment.  G.  O.  140,  Sept.  17, 
18d9. 

46.  Modifying.    See  ORDERS,  3,  4. 

47.  Obedience— "Obedience  to  the  orders  of  superior  authority  is  the  first  and  plaines; 

du  ty  of  all  officers,  from  which  no  one,  of  any  class,  is,  or  can  be,  exempted. 

'•Authority  can  not,  of  course,  control  the  mind,  nor  require  a  false  expression  of 
either  personal  or  professional  opinion,  and  disobedience  may  be  sometimes  excused 
by  the  manifest  illegality,  enormity,  or  folly  which  would  result  directly  from  the 
execution  of  an  order;  but  the  general  rule  of  obedience  is  qualified  only  to  this  extent, 
and  can  not,  with  safety,  be  relaxed  beyond  it."  G.  O.  140,  Sept.  17,  1809.  See  also 
OBEDIENCE,  1,  3.  But  see  ORDERS.  52. 

48.  Officer  of  the  deck— The  officer  of  the  deck,  as  representative  of  the  commanding 

officer  of  a  naval  vessel,  is  entitled  to  obedience  from  all  officers  of  whatever  rank, 
whether  of  lino  or  staff.  C.  M.  O.  67,  1892,  2.  See  also  OFFICER-OF-THE-DECK,  8. 

49.  Same — Emergency — If  there  is  danger  of  a  collision  the  officer  of  the  deck  should 

change  tne  vessel's  course  without  orders  from  the  commanding  officer  and  shall 
report  his  action  to  the  commanding  officer  without  delay.  C.  M.  O.  41, 1883,  3.  See 
also  EMERGENCY;  OFFICER  OF  THE  DECK,  7;  ORDERS,  20. 

50.  Pay  officers — Orders  by  commanding  officers  to  make  payments.    See  PAY  OFFICERS,  4. 

51.  Pay  clerks  and  chief  pay  dorks — Assigned  to  duty  with  pay  officers  who  no  longer 

have  the  selection  of  their  clerks.    See  PAY  CLERKS  AND  CHIEF  PAY  CLERKS,  11. 

52.  Physical  Impossibility  to  obey  order— fs  only  excuse  for  disobedience  of  orders- 

Referring  to  a  case  of  disobedience  of  orders  for  which  the  captain  of  a  ship  was  iried 
in  the  English  service,  Harwood  on  Naval  Courts- Martial  (pp.  120,  130)  states  as  fol- 
lows: 

"A  captain  had  not  fullv  executed  the  instructions  he  had  received  from  the  ad- 
miralty and  was  tried  for  disobedience  of  orders;  the  court  declared  the  charge  to  be 
proved  against  him,  but  it  appearing  to  the  court  that  in  deviating  from  his  orders 
he  had  acted  from  a  persuasion  that,  under  the  circumstances  which  then  existed,  the 
good  of  the  service  required  it,  they  'adjudged  him  to  be  acquitted. ' " 

This  of  course  was  erroneous;  the  legality  of  the  acquittal  was  naturally  questioned 
and  an  opinion  of  the  Crown  lawyers  was  asked  upon  the  matter.  It  was  decided  that 
the  motive  of  the  officer,!  n  acting  for  the  good  of  the  service  might  have  been  ground 
for  imposing  the  lightest  punishment,  or  for  a  ^ardon,  but  that  it  did  not  justify  an 
acquittal.  The  Crown  lawyers  said  (Harwood,"p.  130): 

"We  are  confirmed  in  this  opinion  bv  the  judgment  of  Lord  Mansfield  and  Lord 
Loughborough  in  the  case  of  Sutton  v.  Johnstone,  in  which  they  lay  it  down  as  clear 
and  indisputable  law  that  nothingcan  excuse  a  subordinate  officer  in  the  disobedience 
of  orders  but  a  physical  impossibility  to  obey  them." 


ORDERS.  441 

Here  It  Is  plainly  indicated  by  high  legal  authority  that  there  is  a  defense  even  to 
disobedience  of  orders;  and,  quoting  from  the  language  of  the  above-mentioned  case, 
it  was  said: 

"  If  the  state  and  condition  of  a  ship  be  such  that  an  order  given  can  not  be  o  beyed, 
the  not  obeying  ic  in  that  case  is  not  disobedience  of  orders,  and  requires  no  justifica- 
tion; but  there  ought  to  be  an  acquittal  on  the  ground  of  tha  charge  of  disobedience 
not  being  made  out."  (Harwood,  p.  130.) 

Not.  however,  be  it  observed,  that  the  proof  of  the  disobedience  would  suffice  to 
find  the  accused  guilty,  and  that  the  exculpatory  facts  should  then  be  taken  into 
account  by  the  reviewing  authority  in  mitigation,  but  very  distinctly  that  where 
there  is  a  valid  defense  to  the  accusation  there  should  be  an  acquittal.  C.  M.  O.  5, 
1912, 11-12. 

53.  Precautionary  orders — When  source  of  possible  danger  is  reported  to  the  command- 

ing officer.    See  COLLISION.  12, 17, 19;  COMMANDING  OFFICERS,  38. 

54.  Refusal  to  obey  orders — To  take  prophylactic  treatment.    See  TYPHOID  PROPHY- 

LACTIC, 2,  3;  VENEREAL  PROPHYLAXIS,  1.    See  also  File  28019-25,  Mar.  29, 1912. 

55.  Restraining  orders.    See  C.  M.  O.  37, 1915,  9. 

56.  Retired  officers — To  court-martial  duty.    See  RETIRED  OFFICERS,  23. 

57.  Same — To  active  duty.    See  RETIRED  OFFICERS,  1.  45. 

58.  Revoking — Dissolution  of  court-martial — An   order  revoking  the  dissolution  of  a 

general  court-martial  is  futile.    See  COURT,  69. 

59.  Secretary  of  the  Navy— The  orders  of  the  Secretary  of  the  Navy  are  orders  of  the 

commanding  officer  within  the  meaning  of  R.  S.  285.  File  20254-1451:11,  J.  A.  G.. 
April  12, 1915,  p.  6. 

60.  Sentinels— Orders  of,  should  be  obeyed.    C.  M.  0.95,1893, 3.    See  also  COUNTERSIGN 

ORDERS,  34;  SENTINELS,  1, 14. 18. 
Orders  to  sentinels  to  fire  on  escaping  prisoners.    See  PRISONERS,  18, 19. 

61.  Serious  offense — "Disobedience  of  orders  is,  under  any  circumstances,  a  serious 

offense,  and  when  committed  deliberately,  by  an  intelligent  officer,  under  a  claim 
of  right,  must  tend  greatly  to  the  subversion  of  discipline."  G.  0. 140,  Sept.  17, 1869. 

62.  Smoker— Orders  to  attend  "smoker."    See  CLEMENCY,  37,  38;  DRUNKENNESS,  41; 

SMOKER. 

63.  Specific  orders — Required  for  retired  officers  to  act  as  court-martial  members.    See 

RETIRED  OFFICERS,  23. 

64.  Subordinate  not  judge  of  legality  of  orders  in  first  instance— It  is  true  that  no 

subordinate  officer  can  be  allowed  to  assume  to  be  himself  the  judge,  hi  the  first 
instance,  of  the  propriety  of  the  duty  to  which  he  is  assigned,  or  of  the  order  which 
is  given  him  by  superior  authority.  In  all  cases  where  obedience  does  not  involve  a 
breach  of  law,  human  or  divine,  the  first  duty  of  the  officer  is  to  obey,  exercising  his 
right,  if  he  sees  occasion,  of  protesting  at  the  proper  time  and  in  a  proper  spirit,  and 
of  appealing  to  the  common  superior  to  right  any  wrong  which  he  may  think  he 
suffers.  No  other  course  is  officer-like  or  consistent  with  discipline;  none  other  is 
so  expressive  of  personal  dignity,  nor  can  any  other  be  tolerated  in  the  service. 
These  principles  seem  so  plain  that  it  is  difficult  to  perceive  how  a  well-meaning 
officer  can  fail  to  appreciate  and  carry  them  out.  G.  0. 182,  Apr.  2, 1873. 

65.  Suspension  of.    See  ORDERS,  3. 

66.  Time  of  danger— No  officer  would  be  justified  in  refusing  in  time  of  danger  to  exe- 

cute an  order  involving  unreserved  exposure  of  life.    See  COMMANDING  OFFICERS,  38. 

67.  Unlawful  orders — The  rule  that "  a  command  not  lawful  may  be  disobeyed  no  matter 

from  what  source  it  proceeds"  is  qualified  by  the  fact  that  to  justify  disobeying  an 
order  as  illegal  the  case  must  be  an  extreme  one  and  the  illegality  not  doubtful.  Of 
this  class  would  be  an  order  not  relating  to  military  duty  or  usages,  or  having  for 
its  sole  object  the  attainment  of  some  private  end.  Accordingly  held,-  that  where 
a  convening  authority  receives  an  order,  from  the  senior  officer  present,  to  modify 
his  action  on  a  summary  court-martial  case,  he  was  "advised  that  in  a  case  of  this 
character  involving  a  refined  question  of  legal  construction  you  should  invariably 
give  an  order  emanating  from  proper  source  the  benefit  of  the  doubt,  and  should 
obey  it  unhesitatingly,  reserving  to  proper  opportunity  any  question  respecting 
its  legality."  File  1192-1,  Sec.  Navy,  Mar.  21,  1905.  See  also  REPORTS  ON  FIT- 
NESS, 2. 

68.  Violation  of  orders  by  deceased.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED, 

107-112. 


442 


PARDONS. 


ORDINARY  DISCHARGES. 

1.  Convenience  of  enlisted  men — When  discharged  at  his  own  request  and  for  his  ow» 

convenience  a  man  receives  an  "ordinary  discharge."    C.  M.  O.  20,  1915,  5.    See 
also  GENERAL  ORDER  No.  110,  July  27. 1914, 18;  ORDINARY  DISCHARGES,  2. 

2.  Definition — The  following  persons  are  entitled  to  an  ordinary  discharge  only: 

(a)  All  who  are  not  recommended  by  the  commanding  officer  for  fidelity,  obedience, 
and  ability  during  their  term  of  service. 

(6)  All  who  are  discharged  before  the  expiration  of  their  term  of  .enlistment  at 
their  own  request  or  for  their  own  convenience.  C.  M.  O.  30, 1910, 10;  20, 1915,  5. 

3.  Purchase — Discharge  by — When  discharged  at  his  own  request  and  for  his  own  con- 

venience a  man  receives  an  "ordinary  discharge."    See  ORDINARY  DISCHARGES,  2. 

4.  Request  of  enlisted  men.    See  ORDINARY  DISCHARGES,  2. 

ORDINARY  SEAMAN. 

1.  Officers — May  be  reduced  to  rate  of.    See  REDUCTION  IN  RATING,  24-27. 

ORDNANCE  OFFICER. 

1.  General  court-martial — Tried  by — Neglecting  to  examine  and  have  recoil  cylinders 
filled.    C.  M.  O.  43, 1895. 

OUTFITS,  CLOTHING. 

1.  Right  to.    See  CLOTHING  OUTFITS. 

OVERSLEPT. 

1.  Excuse — When  tried  by  general  court-martial.    C.  M.  O.  51, 1910,  2. 

OVERSTAYING  LEAVE. 

1.  Ensign— Charged  with.    C.  M.  O.  67, 1904. 

2.  Gunner— Charged  with.    G.  C.  M.  Rec.  6362. 

PANAMA. 

1.  G.  0. 121.    See  GENERAL  ORDER  No.  121,  SEPTEMBER  17, 1914, 17. 

2.  Jurisdiction.    See  JURISDICTION,  65. 

PAPERS. 

1.  "Aloud" — Papers  read  in  court-martial  proceedings.    See  ALOUD. 

2.  Useless  papers— In  office  of  Judge  Advocate  General  destroyed.    File  14287-20,  J.  A.  G ., 

Nov.  4, 1915;  4496-77,  J.  A.  G.,  Sept.  26, 1907. 

PARDONS. 

1.  Acceptance — Where  a  pardon  is  legally  issued  by  the  President  it  is  the  right  of  the 

person  to  whom  the  pardon  is  proffered  to  refuse  it.    (Burdick  v.  U.  S.,  235  U.  S. 
267).    See  PARDONS,  16;  SELF-INCRIMINATION,  13-14. 

2.  Citizenship — Effect  of  pardon  for  "Desertion"  upon  rights  of  citizenship  lost  by 

conviction  of  "Desertion"  prior  to  August  22,  1912.    See  DESERTERS,  17-20;  DE- 
SERTION, 26, 29, 41. 

3.  Commuting  sentences  of  courts-martial— The  President  in  the  exercise  of  his 

power  to  pardon  may  in  acting  upon  court-martial  cases  commute  sentences.    See 
COMMUTING  SENTENCES,  4;  DISMISSAL,  18. 

4.  Conditional  pardon — The  power  of  the  President  to  grant  conditional  pardons  is 

unquestioned  and  is  commonly  exercised  in  practice. 

An  enlisted  man  deserted  from  the  Navy.  The  records  did  not  show  that  he  was 
tried  by  court-martial  or  punished  in  any  way  for  his  offense.  A  pardon  was  issued 
on  the  sole  condition  that  he  present  himself  for  enlistment  within  20  days  from 
the  date  of  the  conditional  pardon,  and  if  accepted,  enlist  in  the  United  States  Navy. 
File  3000-98,  Sec.  Navy,  May  12, 1898. 

5.  Same — An  officer  of  the  Navy,  sentenced  to  loss  of  numbers,  has  been  pardoned  on 

condition  that  he  take  rank  in  a  specified  place  in  his  grade,  below  his  original  posi- 
tion.   File  26282-26,  Sec.  Navy,  Mar.  2, 1909. 

A  midshipman  received  a  conditional  pardon  as  follows:  "I  hereby  pardon  Mid- 
shipman *  *  *,  upon  condition  that  he  take  rank  at  the  foot  of  his  class,  and,  if 
commissioned,  be  commissioned  as  the  last  number  therein."  The  accused  "advised 
the  department  of  his  acceptance,  under  the  condition  stated,  of  the  pardon  of  the 
President."  C.  M.  O.30, 1§08,  2.  See  also  C.  M.  O.  33, 1908,2;  File  26262-198. 

6.  Constructive  pardon— Promotion  of  an  officer.    See  PARDONS,  44. 

7.  Same— Appointment  of  a  convicted  deserter,  with  knowledge  he  was  such,  as  an  officer. 

See  DESERTION,  41. 


PARDONS.  443 

8.  Same— Restoration  to  doty.    See  PABDONS,  47. 

f .  Courts-martial  have  not  power  to  pardon— The  law  has  never  intended  to  vest 
hi  courts-martial  the  power  to  pardon  offenses  or  to  award  a  nominal  punishment 
equivalent  to  a  pardon.  The  powf  r  to  pardon,  remit  or  mitigate  is  expressly  vested 
in  the  President  of  the  United  States.  The  exercise  of  this  power  by  a  court- 
martial  is  therefore  illegal.  C.  M.  O.  89, 1897;  132, 1897,  2.  See  also  COUBT,  132. 
It.  Death— Pardon  after  death.  See  PARDONS,  11, 12. 

11.  Deceased — Where  it  was  recommended  that  a  pardon  be  issued  to  the  legal  representa- 

tives of  the  deceased,  the  department  stated:  "The  case  is  not  one  in  which  the  inci- 
dents and  penalties  attending  desertion  could  be  removed  by  the  granting  of  a  par- 
don." File  3846-98,  Sec.  Navy,  June  10, 1898.  See  also  DESERTERS,  20. 

12.  Same — In  view  of  the  fact  that  a  pardon  is  a  personal  deed,  the  validity  of  which  de- 

pends upon  its  proper  delivery  to,  and  acceptance  by,  the  person  to  whom  it  is  granted, 
and  as  these  essential  features  can  not  be  complied  with,  in  a  case  where  the  person 
in  whose  favor  the  pardon  is  requested,  is  dead,  Held,  that  the  department  can  not 
take  favorable  action  and  request  that  a  pardon  be  issued.  File  26539-491,  Sec.  Navy. 
Sept.  16, 1912. 

13.  Declined.   See  PARDONS,  1;  SELF-INCRIMINATION,  13, 14. 

14.  Definition.    See  PARDONS,  19. 

15.  Delegation  of  power  to  pardon.    See  PARDONS,  41. 

16.  Delivery  and  acceptance— A  pardon  does  not  become  effective,  for  the  purpose  of 

depriving  a  witness  of  his  right  to  refuse  to  answer  criminating  questions,  until  de- 
livery and  acceptance.  (Burdickr.  U.  S..235U.  S.  267.)  C.  M.  O.  53, 1914,  5.  See 
also  PARDONS,  12;  SELF-INCRHUNATION,  13, 14. 

17.  Department  of  Justice — Under  an  understanding  between  the  Department  of  Justice 

and  the  Navy  Department  and  War  Department,  and  also  "under  the  rules  relating 
to  applications  for  pardon  adopted  by  the  Attorney  General  and  approved  by  the 
President,"  the  Department  of  Justice  "will  not  consider  applications  for  pardon  for 
desertion  or  other  offenses  against  the  military  and  naval  laws,  and  when  such  appli- 
cations are  received  they  are  referred  to  the  Secretary  of  the  Navy  and  the  Secretary 
of  War  respectively."  The  Department  of  Justice  "does,  however,  issue  the  formal 
warrants  of  pardon  in  Army  and  Navy  cases  where  such  pardon  has  been  recom- 
mended by  the  Secretary  of  the  Navy  or  the  Secretary  of  War."  See  File  7466-04. 
See  also  PAKDONS,  43. 

18.  "Desertion."    See  DESERTERS,  17-20;  DESERTION,  41;  PARDONS,  2,  11.  37,  40.  52,  54. 

19.  Effect  of— "A  pardon  is  an  act  of  grace  by  which  an  offender  is  released  from  the  con- 

sequences of  his  offense,  so  far  as  such  release  is  practicable  and  within  control  of  the 
pardoning  p_ower,  or  of  officers  under  its  direction.  It  releases  the  offender  from  all 
disabilities  imposed  by  the  offense,  and  restores  to  him  all  his  civil  rights.  Tn  con- 
templation of  law,  it  so  far  blots  out  the  offense,  that  afterwards  it  can  not  be  imputed 
to  him  to  prevent  the  assertion  of  his  legal  rights.  It  gives  to  him  a  new  credit  and 
capacitv,  and  rehabilitates  him  to  that  extent  in  his  former  position.  But  it  does 
not  make  amends  for  the  past.  It  affords  no  relief  for  what  has  been  suffered  by 
the  offender  in  his  person  bv  imprisonment,  forced  labor,  or  otherwise;  it  does  not 
give  compensation  for  what  "has  been  done  or  suffered,  nor  does  it  impose  upon  the 
Government  any  obligation  to  give  it.  *  *  *  Neither  does  the  pardon  affect  any 
rights  which  have  vested  in  others  directly  by  the  execution  of  the  judgment  for  the 
offense,  or  which  have  been  acquired  by  others  whilst  that  judgment  was  in  force." 
(Knote  v.  U.  S.,  95  U.  S.  149,  153).  File  26282-2. 

20.  Same — Purges  the  offense  but  does  not  restore  position.    See  PARDONS,  45. 

21.  Same — "A  pardon  reaches  both  the  punishment  prescribed  for  the  offense  and  the  guilt 

of  the  offender;  and  when  the  pardon  is  full,  it  releases  the  punishment  and  blots 
out  of  existence  the  guilt,  so  that  in  the  eye  of  the  law  the  offender  is  as  innocent  as 
if  he  had  never  committed  the  offense.  Tf  granted  before  conviction  it  prevents  any 
of  the  penalties  and  disabilities  consequent  upon  conviction  from  attaching;  if  granted 
after  conviction,  it  removes  the  penalties  and  disabilities,  and  restores  him  to  all  his 
civil  rights;  it  makes  him,  as  it  were,  a  new  man,  and  gives  him  a  new  credit  and 
capacity."  (Ex  parte  Garland,  71  U.  S.  333,  380-381.  See  also  U.  S.  v.  Padelford,  9 
Wall.  531, 537).  File  5789-99,  Sec.  Navy,  Sept.  2, 1899.  See  alto  File  26282-2.  But  see 
In  re  Spencer,  22  Fed.  Cas.  No.  13234;  11  Op.  Atty.  Gen  22S;  Roberts  v.  State,  160  N. 
Y.  217. 

Where  certain  steps  had  been  taken  in  accordance  with  statute  with  a  view  to  the 
dismissal  of  cadets  from  the  Naval  Academy,  but  the  proceedings  had  not  been  com- 
pleted by  the  actual  dismissal  of  the  offenders,  the  President  could,  in  the  exercise  of 


444  PARDONS. 

the  pardoning  power,  relieve  the  offenders  from  the  punishment  of  dismissal,  leaving 
them  in  the  Academy,  their  connection  with  which  had  not  been  severed.  (Op. 
Atty.  Gen. ,  Aug.  14, 1888,  Exec.  Press  Copy  Book,  Navy  Dept.  No.  7,  p.  245.)  But 
where  a  midshipman  has  been  actually  dismissed,  a  pardon  will  not  have  the  effect 
Of  reinstatement.  File  5252-73,  J.  A.  G. ,  Oct.  1, 1915. 

22.  Same— "The  effect  of  a  pardon  is  to  obliterate  the  offense,  and  make  him  who  has  been 

an  offender,  as  innocent,  in  legal  contemplation,  as  if  he  had  never  offended;  to  remove 
all  disabilities  incident  to  the  offense  charged  and  to  restore  to  him  all  civil  rights 
which  he  would  have  had  if  he  had  not  offended."  (Op.  Atty.  Gen.,  June  1C,  1908.) 
File  26282-2. 

23.  Same^— A  full  pardon  by  the  executive  removes  all  penal  consequences,  except  executed 

forfeitures,  attached  to  the  commission  of  an  offense.  File  26251-1963:1,  J.  A.  G., 
Aug.  17, 1910,  p.  2. 

24.  Same— A  pardon  "can  not  and  does  not  restore  that  which  is  already  lost  and  gone 

beyond  the  reach  of  the  Government.  But  as  to  the  future,  it  relieves  the  person 
from  all  disabilities  and  consequences  to  which  he  would  be  subject  but  for  the  pardon, 
so  that,  thereafter,  nothing  can  be  imputed  to  him  based  upon  the  allegation  of  his 
offense."  (Op.  Atty.  Gen.,  June  16, 1908).  File  26282-2. 

25.  Same — "There  has  been  some  difference  of  opinion  among  the  members  of  the  court 

as  to  cases  covered  by  the  pardon  of  the  President,  but  there  has  been  none  as  to  the 
effect  and  operation  of  a  pardon  in  cases  where  it  applies.  All  have  agreed  that  the 
pardon  not  merely  releases  tho  offender  from  the  punishment  prescribed  for  the 
offense,  but  that  it  obliterates  in  legal  contemplation  the  offense  itself."  (Carlisle 
v.  U.  S.,  16  Wall.  147,  151.)  File  26282-2. 

26.  Embezzlement.    See  PARDONS,  37. 

27.  Form  of  pardon — May  take  form  of  a  proclamation  of  amnesty  or  be  individual  in 

nature.  The  form  which  a  pardon  may  assume  is  not  at  all  important.  See 
DESERTION,  41. 

28.  Formal  warrants — Issued  by  the  Department  of  Justice.    See  PABDONS,  17,  43. 

29.  Fraudulent  enlistment.    See  File  26251-8539:1,  J.  A.  G.,  Jan.  21,  1914,  Sec.  Navy, 

Jan.  24,  1914,  which  holds  restoration  to  duty  of  a  person  who  fraudulently  enlists 
(ratifying  the  fraudulent  enlistment  constructively)  is  not  a  constructive  pardon. 
See  also  FRAUDULENT  ENLISTMENT,  75;  PARDONS,  47. 

30.  General  pardon  and  amnesty.    See  DESERTION,  41;  PARDONS,  27. 

31.  Implicit  pardon.    See  PARDONS,  44. 

32.  Mark  of  desertion.    See  MARK  OF  DESERTION,  4. 

33.  Midshipman — Where  dismissal  has  not  been  consummated.    See  MIDSHIPMEN,  60; 

PARDONS,  21.    See  P  ARDONS,  5,  where  a  midshipman  received  a  constructive  pardon. 

34.  Same— Dismissed  for  hazing  in  1906— Pardoned  by  President.    File  26282-267; 

35.  Numbers,  loss  of — Where  an  officer  while  in  the  grade  of  second  lieutenant  was  sen- 

tenced to  loss  of  numbers,  was  not  pardoned,  but  subsequently  •promoted  to  grade  of 
first  lieutenant.  Held,  the  sentence  was  completely  executed,  and  there  was  no  way, 
under  existing  law,  in  which  he  could  be  restored  to  the  rank  he  held  before  he  was 
sentenced.  File  26261-246,  Sec.  Navy,  Mar.  18,  1914;  26262-1794,  Jan.  1917. 

36.  Same — An  officer  in  the  grade  of  lieutenant  was  sentenced  to  a  loss  of  150  numbers  in 

1908.  Proceedings,  findings,  and  sentence  were  approved.  In  1909,  while  in  the  same 
grade,  the  President  issued  a  "partial  pardon"  reducing  the  loss  of  numbers  to  50. 
File  26282-26,  Sec.  Navy,  Mar.  2,  1909. 

37.  Offenses  other  than  "Desertion" — A  request  was  made  that  the  President  pardon  a 

former  enlisted  man  of  the  Navy  who  had  been  dishonorably  discharged  in  accord- 
ance with  the  sentence  of  a  general  court-martial  after  trial  on  the  charge  of  "scandal- 
ous conduct  tending  to  the  destruction  of  good  morals,"  the  specifications  thereunder 
alleging  that  he  had  embezzled  property  and  funds  of  the  United  States  while  a  Navy 
mail  clerk. 

The  department  has  held  that  where  a  naval  prisoner  has  been  convicted  and 
served  sentence  for  an  offense,  it  will  not  recommend  that  he  be  pardoned,  except 
in  such  cases  of  desertion  as  result  in  loss  of  the  rights  of  citizenship. 

In  all  cases  of  requests  for  pardon,  in  accordance  with  the  rules  adopted,  no  appli- 
cation for  a  pardon  will  be  considered  until  at  least  two  years  have  elapsed  from  the 
date  of  the  release  from  confinement  of  the  applicant.  File  26282-245,  Sec.  Navy, 
Dec.  16, 1915;  C.  M.  0. 49, 1915,  28.  See  also  File  26282-214,  Mar.  18, 1915;  1  Op.  Atty. 
Gen.  359;  23  Op.  Atty.  Gen.  360. 

38.  Officer  appealed— For  pardon  and  relief  from  effect  of  general  court-martial  sentence. 

File  4435-04,  and  4445-04,  J.  A.  G.,  May  19, 1904. 


PABDONS.  445 

39.  "Partial  pardon"— Reducing  loss  of  numbers  suffered  by  an  officer  by  reason  of  a 

general  court-martial  sentence.    See  PARDONS.  36. 

40.  Same — Pardons  to  deserters  remitting  the  disabilities  resulting  from  conviction 

without  pardoning  the  offense.  File  26282;  28067.  See  also  DESEETEES,  17-20;  DE- 
SERTION, 41;  PAEDONS,  2, 11, 37,  40. 52,  54. 

41.  President  of  the  United  States— The  pardoning  power  under  the  Constitution  is 

vested  exclusively  in  the  President  of  the  United  States  and  can  not  be  delegated. 
The  Secretary  of  the  Navy  may  remit  or  mitigate  the  sentence  of  a  naval  court- 
martial  in  whole  or  in  part  but  he  can  not  pardon  the  offense.  File  26806-117,  J. 
A.  G.,  Apr.  21, 1914.  See  also  File  26251-1963:1,  J.  A.  G.,  Aug.  17, 1910;  26251-8539:1, 
J.  A.  G.,  Jan.  1, 1914;  COMMUTING  SENTENCES.  1;  SECRETARY  OF  THE  NAVY,  54. 

42.  Prior  to  conviction — The  Navy  Department  has  adopted  the  rule  formulated  by 

the  Department  of  Justice  and  approved  by  the  President,  of  declining  to  recom- 
mend the  issuance  of  a  pardon  in  any  case  prior  to  conviction.  File  26282-84,  Mar. 
7, 1912.  See  also  File  26262-1344: 5.  But  see  File  26282-85,  Apr.  8,  1912. 

43.  Procedure — Where  the  Secretary  of  the  Navy  approves  an  application  for  pardon 

and  transmits  it  to  the  President  with  favorable  recommendation,  if  a  pardon  is  to 
be  granted,  this  letter  is  returned  with  the  President's  approval  indorsed  thereon; 
the  papers  are  then  transmitted  to  the  Department  of  Justice,  where  the  formal 
warrant  of  pardon  is  prepared  for  the  President's  signature;  when  signed  by  the 
President,  the  warrant  of  pardon  is  sent  by  the  Department  of  Justice  to  the  Navy 
Department,  to  be  transmitted  to  the  recipient,  together  with  a  blank  form  of  receipt 
and  acceptance  to  be  signed  by  the  recipient  of  the  pardon  and  returned  by  him 
to  the  Navy  Department  for  file.  File  26282;  28067.  See  also  PARDONS,  17. 

44.  Promotion  of  an  officer— Is  a  constructive  pardon  of  an  unexecuted  sentence,  or 

where  the  officer  is  under  arrest  on  charges,  etc.  But  where  steps  have  been  taken 
with  a  view  to  the  promotion  of  an  officer,  before  the  promotion  is  consummated 
he  may  be  tried  by  court-martial  for  offenses  previously  committed.  (G.  C.  M. 
Recs.  23553,  26451,  28681,  28798.)  And  where  an  officer  was  nominated  and  con- 
firmed for  advancement  m  rank,  after  he  had  been  recommended  for  trial  by  court- 
martial,  but  the  commission  was  not  signed  by  the  President,  the  necessary  steps 
for  his  trial  were  proceeded  with  until  stayed  by  the  acceptance  of  said  officer's  resig- 
nation "for  the  good  of  the  service."  File  20251-2833,  Mar.  31,  1910.  See  also  COM- 
MISSIONS, 21;  6  Op.  Atty.  Gen.  123;  8  Op.  Atty.  Gen.  237;  DESERTION,  41.  See  also 
4  Op.  Atty.  Gen.  holding  that  the  promotion  of  a  passed  midshipman  is  an  im- 
plicit pardon  of  sentence  of  suspension  on  half  pay. 

45.  Purges  offense — But  does  not  restore  position.    See  File  5789-99,  J.  A.  G.,  Sept.  2, 

1899;  1768-D,  1902.    See  also  11  Op.  Atty.  Gen.  19. 

46.  Refusal  to  accept.    See  PARDONS,  1,  16;  SELF-INCRIMINATION,  13, 14. 

47.  Restoration  to  duty — Restoration  of  a  court-martial  prisoner  to  duty  by  the  Sec- 

retary of  the  Navy  is  never  a  "pardon."    Only  the  President  can  "pardon"  an 


_  man  to  duty  could 

6297:9,  Sec.  Navy,  Dec.  28. 1914;  C.  M.  O.  6, 1915, 15.  See  also  File  26251-1963:1,  Aug. 
17,  1910,  p.  13,  approved  by  Sec.  Navy,  Aug.  17,  1910;  9212-59,  Sec.  Navy,  Aug.  26, 
1915;  26251-8539:1,  J.  A.  G.,  Jan.  21,  1914;  26806-117,  J.  A.  G.,  Apr.  21, 1914;  U.  S.  v. 
Landers,  92  U.  S.  77. 

48.  Retroactive— "No  pardon  is  retroactive,  it  can  not  alter  or  reverse  the  facts  of  a  com- 

?leted  record,  nor  can  it  act  to  restore  an  executed  forfeiture."    File  26251-1963:1, 
.  A.  G.,  Aug.  17, 1910,  p.  3.    See  also  PARDONS,  19-25. 

49.  Revised  Statutes  4756,  4757— The  recipient  of  a  pardon  is  entitled  to  the  benefits 

of  these  sections  in  the  same  manner  as  if  he  had  never  been  discharged  for  miscon- 
duct. File  5789-99,  Sec.  Navy,  Sept.  2, 1899. 

50.  "Rules  Relating  to  Applications  for  Pardon"— Issued  by  the  Department  of 

Justice,  dated  July  1, 1904.    See  File  7466-04. 

51.  Time — Two  years  must  elapse  from  date  of  release  from  confinement  before  pardon 

will  be  considered.    See  PAEDON,  37,  52. 

52.  Two  years— In  cases  of  enlisted  men  convicted  of  "  Desertion,"  the  rule  of  the  Depart- 

ment of  Justice  as  approved  by  the  President  is  followed  by  the  Navy  Department 
of  recommending  that  a  pardon  be  issued  for  the  purpose  of  restoring  citizenship 
rights,  where  the  applicant  had  served  sentence  for  the  offense,  and  then  only  after 
two  years  from  date  of  discharge  and  provided  the  applicant  produces  satisfactory 
affidavits  to  the  effect  that  he  has  lived  an  upright  and  industrious  life  since  the  date 


446  PARDONS. 

of  his  discharge.  File  26282-84,  Sec.  Navy,  Mar.  27,  1912.  See  also  C.  M.  O.  29, 
1914,  11;  G.  C.  M.  Rec.  24805;  File  26262-1359,  J.  A.  G.,  Mar.  1,  1912;  26282-241, 
Sec.  Navy,  Nov.  8,  1915;  DESERTERS,  17-20;  PARDONS,  37.  But  see  File  26282- 
157:1,  Sec.  Navy,  May  25,  1914,  where  pardon  was  recommended  within  less  than 
two  years  from  date  of  discharge. 

53.  Unconditional  pardon.    See  PARDONS,  19-25. 

54.  War— Persons  convicted  of  "Desertion"  in  time  of  war  can  not  have  their  citizenship 

rights  restored  except  by  pardon.    See  DESERTION,  29, 135. 

55.  Warrants — Formal  warrants  for  pardons  are  issued  by  the  Department  of  Justice. 

See  PARDONS,  17, 43. 

56.  When  pardon  may  be  granted — The  President  "has  power  to  pardon  for  a  crime 

of  which  the  individual  has  not  been  convicted  and  which  he  does  not  admit." 
(U.  S.  v.  Burdick,  211  Fed.  Rep.  492.)  C.  M.  O.  53, 1914,  5. 

PAROLE. 

1.  Interned  belligerents— Parole  of.    See  INTERNMENT. 

2.  Jurisdiction— Of  naval  authorities  over  men  paroled  by  civil  courts.   See  JURISDICTION. 

99,100. 

3.  Policy  ol  department— It  is  not  the  policy  of  the  department  to  parole  any  person 

convicted  by  a  naval  general  court-martial.  File  26267-157,  Sec.  Navy,  September, 
1916. 

4.  Violator.    See  CIVIL  AUTHORITIES,  8;  PAROLE  VIOLATOR,  1. 

"PAROLE  VIOLATOR." 

1.  Discharged — As  undesirable  and   turned  over  to  civil  authorities.    See  CIVIL  AU- 
THORITIES, 8. 

PASSED  ASSISTANT  ENGINEER. 

1.  General  court-martial— Tried  by.    C.  M.  O.  21, 1883;  22, 1883;  11, 1885. 

PASSENGERS. 

1.  Boatswain — Passenger  hi  a  ship's  boat  tried  by  general  court-martial  for  "Neglect  of 

duty."    File  26251-12847. 

2.  Division  commander— Responsibility  of  a  division  commander  for  the  navigation  of 

his  flagship  when  he  is  a  passenger.    See  NAVIGATION,  31  (p.  413). 

PATENT  LOG.    See  File  7893-03,  J.  A.  G.,  Sept.  22, 1903;  13  J.  A.  G.,  99. 

PATENTS. 

1.  Laws  relating  to.    See  File  8247-293,  J.  A.  G.,  March  14, 1916. 

2.  Officers,  enlisted  men  or  employees — Of  the  Government  securing  patents.    See 

File  4496-116,  J.  A.  G.,  May  1, 1908. 

3.  Securing  of.    See  File  27219-322,  J.  A.  G.,  June  17, 1916. 

PATIENTS  AT  THE  GOVERNMENT  HOSPITAL  FOR  THE  INSANE.    See  GOV- 
ERNMENT HOSPITAL  FOR  THE  INSANE. 

PATROL. 

1.  Member  of  a  patrol — Killed  by  member  of  another  friendly  patrol.    See  LINE  OF 
DUTY  AND  MISCONDUCT  CONSTRUED,  86. 

PAWNED  OR  STOLEN  GOODS. 

1.  Recovery— Of  pawned  or  stolen  property  of  the  United  States.    C.  M.  O.  30, 1916.    See 
also  PUBLIC  PROPERTY,  7. 

PAY.    See  also  EMOLUMENT;  SALARY. 

1.  Absence,  unauthorized— According  to  decisions  of  the  Comptroller  of  the  Treasury, 

enlisted  men  acquitted  by  court-martial  of  the  charge  of  desertion,  and  thereby 
acquitted  by  implication  of  the  lesser  offense  of  absence  without  leave,  are  entitled 
to  pay  during  the  period  of  their  alleged  desertion.  (10  Comp.  Dec.,  760;  16  Comp. 
Dec.,  480, 107  S.&  A.  Memo.,  1325;  12 Comp.  Dec., 328, 59  S.  &  A.  Memo.,  53;  15  Comp. 
Dec.,  661.)  C.  M.  O.  14,  1914,  4;  29,  1914,  10;  49,  1915,  8.  See  also  ABSENCE  FROM 
STATION  AND  DUTY  WITHOUT  LEAVE,  24;  11  Comp.  Dec.,  659,  755. 

2.  Same — His  acquittal  upon  a  trial  should  be  accepted  by  the  Government  as  conclusive 

in  his  behalf  that  the  civil  proceedings  against  nim  were  without  legal  justification. 


PAY.  447 

"  A  soldier  under  arrest  by  the  civil  authority  on  a  criminal  charge  will  be  entitled 
to  his  pay  for  the  time  he  was  in  custody,  provided  he  is  tried  and  acquitted,  or  dis- 
charged without  trial."  (Dig.  Dec.,  2  Comp.  Dec.,  par.  1311.) 

In  1896,  in  the  case  of  a  seaman  charged  with  killing  a  man  while  on  shore  on  liberty, 
the  comptroller  said  (2  Comp.  Dec.,  585): 

"  His  pay  should  be  held  in  abeyance,  for  if  acquitted  he  will  be  entitled  to  it,  while 
if  convicted  it  will  be  forfeited  from  the  date  of  his  arrest." 

And  decisions  to  a  similar  effect  will  be  found  in  9  Comp.  Dec.,  249;  14  S.  &  A.  Memo. 
129;  34  Id.,  282.  If,  then,  a  discharge  without  trial,  or  an  acquittal,  by  the  civil 
authorities  gives  the  accused  man  a  right  to  his  pay  during  the  enforced  absence,  it 
can  not  be  doubted  that  the  absence  should  not  be  regarded  as  of  such  a  character  as 
to  render  the  man  liable  to  punishment  therefor. 

As  held  by  the  second  comptroller  (Dig.  2d  Comp.,  par.  1312): 

"  When  a  soldier  is  convicted  by  the  civil  authority  of  a  crime,  and  is  thereby  with- 
drawn from  the  service  of  the  United  States  through  his  own  fault,  all  pay,  etc.,  due 
at  the  time  of  his  conviction  is  forfeited."  C.  M.  O.  5, 1912, 13-14.  See  also  CRITICISM 
OF  COURTS-MARTIAL,  19. 

3.  Accounting  officers— Jurisdiction    over    questions    pertaining   to   pay.    See    File 

26254-599,  Jan.  4, 1911. 

4.  Acquittal— Pay  for  time  under  arrest.    See  CONFINEMENT,  7;  PAY,  1,  2. 

5.  Action  withheld—  Forfeiture  of  pay  and  deposits.    See  File  26516-17. 

6.  Ad  interim  appointments.    See  PAY,  82. 

7 .  Additional  pay— For  aids.    See  File  26254-292;   26254-1917,  Sec.  Navy,  Nov.  4, 1915; 

26254-53:  26254-2014,  J.  A.  G.,  May  8,  1916. 

8.  Same— Aids  to  brigade  commander.  U .  S.  M.  C.    See  File  26254-685:1. 

9.  Advances  to  officers.   See  C.  M.  O.  4,  1916;  K-4458;  ADVANCES  OR  LOANS  BY  PAY- 

MASTERS; FRAUD.  5. 

10.  Aids.    See  PAY,  6, 7. 

11.  Allowances — And  pay  distinguished.    See  ALLOWANCES,  13. 

12.  Arrest  and  acquittal  by  civil  authorities — No  bar  to  receipt  of  pay.    See  CONFINE- 

MENT, 7;  PAY,  2. 

13.  Attorney  General— Jurisdiction  regarding  questions  concerning  pay.    See  ATTORNEY 

GENERAL,  12. 

14.  Awaiting  orders  pay.   See  PAY,  61. 

15.  Awaiting  trial— It  has  been  brought  to  the  department's  attention  that  in  several 

cases  commanding  officers,  in  pursuance  of  Navy  Regulations,  1913,  R-3669  (3),  have 
issued  special  money  requisitions  to  enlisted  men  against  whom  charges  have  been 
preferred;  also  that  prompt  notification  has  not  been  given  to  pay  9fficers  of  amounts 
to  be  deducted  pursuant  to  the  s_entences  of  courts-martial  in  certain  cases  of  enlisted 
men  in  order  that  proper  deductions  might  be  made  in  lieu  of  such  men  being  allowed 
to  draw  their  money. 

Loss  has  resulted  to  the  Government  by  virtue  of  the  above,  for  cases  of  late  have 
gone  to  the  Comptroller  of  the  Treasury  on  appeal  by  pay  officers  from  auditor's 
disallowance  and  have  been  allowed  by  reason  of  lack  of  notice  to  said  pay  officers. 
(See  Comp.  Dec.  of  Feb.  24,  1916.)  Commanding  officers  should  make  every  effort 
to  safeguard  the  Government  from  any  further  losses  from  similar  causes.  File 
26806-131:35,  J.  A.  G.,  Mar.  22,  1916;  C.  M.  O.  9,  1916,  10. 

16.  Bail— Pay  of  enlisted  men  on  bail  from  civil  courts.    See  BAIL,  2. 

17.  Checkage  of  pay  for  value  of  property  lost— In  an  opinion  of  the  Judge  Advocate 

General  rendered  December  8,  1909  (File  3980-452:2),  it  was  concluded  that,  in  the 
absence  of  statutory  authority,  there  is  no  warrant  of  law  for  checking  the  pay  of 
an  officer  or  man  for  loss  or  damage  to  Government  property,  notwithstanding  a 
contrary  decision  rendered  by  the  Comptroller  of  the  Treasury  February  9,  1909  (96 
S.  &  A.  Memo.,  957).  Pursuant  to  said  opinion  of  this  office,  article  1260  (5),  C.  N.  R.  4, 
June  25. 1909,  was  revoked  by  the  President  upon  recommendation  of  the  Secretary 
of  the  Navy.  (See  S.  &  A.,  Ind. ,  May  10,  1916,  No.  186-362;  26534^594.) 

Accordingly,  advised:  That  there  is  no  authority  of  law  under  which  an  officer  of  the 
Navy,  who  is  not  required  to  render  returns  for  property  in  his  possession,  can  be 
checked  for  the  value  of  missing  property.  In  this  connection  attention  is  invited  to 
the  fact  that  there  is  no  legal  9bstacle  in  the  way  of  such  officer's  depositing  to  the 
credit  of  the  United  States,  if  he  is  willing  to  do  so,  a  sum  sufficient  to  cover 
the  cost  of  missing  property  for  which  he  has  been  held  responsible.  (File  26834-594; 
S.  &  A.  File  186-364.)  File  18140-35,  J.  A.  G.,  July  25,  1916. 

50756°— 17 29 


448  PAY. 

18.  Same — There  is  no  authority  of  law  to  check  the  pay  of  an  officer  or  enlisted  man  for 

the  loss  of  a  library  book.  File  2657-04,  J.  A.  G.,  April  5,  1904,  referred  to  in  File 
3980-452:2,  J.  A.  G.,  Dec.  8, 1909,  p.  9. 

Or  for  loss  or  damage  to  public  property.    14  J.  A.  G.,  230. 

Or  for  a  boat  taken  without  permission  and  lost.    File  170-04,  J.  A.  G.,  Jan.  21, 1904. 

Or  for  careless  enlistments  by  recruiting  officers  of  the  Navy.    File  5942-34. 

Or  for  windows  broken  through  carelessness.  File  18140-16,  Sec.  Navy.  Feb.  27, 
1912. 

Checkage  of  pay  in  lieu  of  punishment — Held:  That  the  practice  of  having  enlisted 
men  attached  to  a  receiving  ship,  checked  for  the  loss  or  destruction  of  Government 
property  upon  their  request  in  lieu  of  being  punished  for  the  offense  involved  therein, 
is  wholly  unauthorized  by  law.  File  3773-149  J.  A.  G. ,  Dec.  26, 1912. 

19.  Checkage  of  pay  made  erroneously.   See  AUDITOR  FOR  THE  NAVY  DEPARTMENT,  6. 

20.  Civil  employees— Procedure  when  civil  employees  are  not  paid  from  the  pay  car  at 

the  regular  time.    File  26283-961,  Sec.  Navy,  Dec.  21, 1915. 

21.  Same— Suspension  without  pay  by  the  Secretary  of  the  Navy.    File  26283-961,  Sec. 

Navy,  Dec.  21,1915. 

22.  Same— Leave  of  absence  without  pay.    See  LEAVE  OF  ABSENCE,  13. 

23.  Clemency— The  department  has  held,  in  considering  a  question  of  remitting  the  loss  of 

pay  imposed  by  a  court-martial,  that  it  should  be  done.in  general,  only  as  an  act  of 
clemency.  (File  26257-560,  Sec.  Navy,  Aug.  3,  1910.)  File  26251-7004:2,  Sec.  Navy, 
Mar.  31, 1913;  C.  M.  0. 22, 1915, 9. 

Loss  of  pay  of  an  accused  is  frequently  remitted  by  the  Secretary  of  the  Navy  on 
condition  that  the  accused  allot  all  pay  except  necessary  prison  expenses,  transpor- 
tation, and  gratuity  to  be  paid  on  discharge.  See  ALLOTMENTS,  6. 7;  CLEMENCY,  39, 53. 

24.  Commences— A  commission  bears  date,  and  the  salary  of  an  officer  commences  from 

his  appointment,  not  from  the  transmission  or  acceptance  of  his  commission.  (Mar- 
bury  v.  Madison,  1  Cr.,  137.)  File  22724-16:1,  J.  A.  G.,  Apr.  24, 1911,  p.  9. 

25.  Same — More  recently  it  was  enacted  that  officers  of  the  Navy  advanced  in  grade  or 

rank  pursuant  to  law  should  be  paid  "from  the  date  stated  in  their  commissions." 
(Act  of  Mar.  4, 1913,  37  Stat.,892.)  File  5460-76,  J.  A.  G.,  July  12, 1915. 

26.  Conditionally  remitted.    G.  C.  M.  Rec.  28810;  File  26287-251:69.  Feb.  12, 1914. 

27.  Confinement—  Forfeiture  of  pay  in  general  courts-martial  cases  should  agree  with  the 

period  of  confinement.    See  CONFINEMENT,  32. 

28.  Confinement  at  hard  labor— The  sentence  should  include  forfeiture  of  pay — In  view 

of  the  fact  that  a  prisoner  does  not  perform  the  duties  of  his  rank  or  rating,  but,  on  the 
contrary,  is  a  source  of  expense  to  the  Government,  it  is  considered  that  the  best 
interests  of  the  Government  would  be  served  if  the  court  would  adhere  to  the  usual 
form  of  punishment  for  enlisted  men,  which  includes  forfeiture  of  pay  during  con- 
finement at  hard  labor.  C.  M.  0. 1, 1913,  3;  5, 1914,  6.  See  also  C.  M.  O.  100, 1894,  2; 
CONFINEMENT,  27;  Navy  Regulations.  1913,  R-816. 

29.  Confinement  without  discharge^-A  court  should  never  adjudge  a  sentence,  not 

including  dishonorable  discharge,  in  which  there  is  no  limitation  upon  the  period 
during  which  the  loss  of  pay  (and  allowances)  should  continue  as  it  therefore  is  made 
applicable  to  the  entire  remaining  portion  of  the  enlistment  of  the  accused.  C.  M.  O. 
42, 1909, 3;  14, 1910, 7;  26, 1910, 8;  21, 1912, 4;  1, 1913, 3;  14, 1913,  5. 

30.  Continuous  service  pay.    See  File  28550-20. 

31.  "Creditable  records"— Commissioned  warrant  officers.    See  PAY,  114. 

32.  Date— Pay  of  an  officer  commences.    See  PAY,  24,  25. 

33.  De  facto  officers — "The  invariable  rule  has  been  to  hold  that  one  who  performed 

the  duties  of  an  office  or  employment  is  entitled  to  retain  compensation  therefor, 
notwithstanding  the  fact  that  the  original  appointment  was  illegal."  File  26254- 
1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  14.  See  also  PAY,  82. 

34.  Same — "It  is  well  settled  that  where  an  officer  at  facto  has  rendered  service  and  received 

pay  In  good  faith,  the  money  paid  to  him  can  not  be  recovered  back.  (Palen  v.  U.  8., 
19  Ct.  Cls.,  389;  Badeau  v.  U.  S..  130  U.  S.  452.)"  Comp.  Dec.,  Nov.  25,  1910.  file 
26254-578. 

35.  Debts— Collection  of  by  department  from  pay.    See  DEBTS,  1, 13, 15, 17, 18;  PAY,  71. 

36.  Deck  court  sentences— In  no  case  shall  a  deck  court  adjudge  forfeiture  of  pay  for  a 

longer  period  than  twenty  days.     C.  M.  O.  24, 1909,  3;  34, 1913,  6;  1, 1914,  5. 

37.  Same— Deck  courts  and  summary  courts-martial  are  authorized  by  section  8  of  the 

act  of  February  16,  1909  (35  Stat.,  621)  to  award  loss  of  pay  by  itself  without  con- 
finement. See  DECK  COURTS,  36. 


PAY.  449 

38.  Same — Amount  of  pay  forfeited  and  not  period  of  time  should  be  stated  in  sentences. 

See  DECK  COURTS,  35. 

39.  Definition — "Pay"  or  "pension,"  compensation  of  retired  officers.    See  RETIRED 

OFFICERS,  16. 

40.  Same — "Allowances"  and  "pay"  distinguished.    See  ALLOWANCES,  13. 

41.  Desertion— The  oflense  of  "Desertion"  per  se  entails  loss  of  all  pay  at  the  time  of 

desertion.    See  DESERTERS,  12;  DESERTION,  96. 

42.  Discharge— Operates  as  a  remission  of  unexecuted  pay  adjudged  forfeited  by  courts- 

martial.    See  BAD-CONDUCT  DISCHARGE.  3;  PAY,  87. 

43.  Erroneously  checked.   See  AUDITOR  FOR  THE  NAVY  DEPARTMENT,  6. 

44.  Disease—"  Where  the  disease  was  contracted  by  a  soldier  during  the  enlistment  in 

which  he  is  serving,  but  prior  to  the  passage  of  the  act  of  August  24, 1912  [37  Stat.,  572], 

Sly  for  absence  on  account  of  such  disease  should  not  be  deducted."    (19  Comp. 
ec.  572,  quoted  and  followed  in  File  7657-394,  Sec.  Navy).    File  7657-394:1.  Sec. 
Navy,  Sept.  20, 1916. 

45.  Same — The  act  of  August  29,  1916,  provides:  "Hereafter  no  officer  or  enlisted  man  in 

the  Navy  or  Marine  Corps  in  active  service  who  shall  be  absent  from  duty  on  account 
of  sickness  or  disease  resulting  from  his  own  intemperate  use  of  drugs  or  alcoholic 
liquors,  or  other  misconduct,  shall  receive  pay  for  the  period  of  such  absence,  the  time 
so  absent  and  the  cause  thereof  to  be  ascertained  under  such  procedure  and  regulations 
as  may  be  prescribed  by  the  Secretary  of  the  Navy:  Provided,  That  an  enlistment 
shall  not  be  regarded  as  complete  until  the  enlisted  man  shall  nave  made  good  any 
time  in  excess  of  one  day  lost  on  account  of  sickness  or  disease  resulting  from  his  own 
intemperate  use  of  drugs  or  alcoholic  liquors,  or  other  misconduct."  Held:  [1]  That 
where  such  disease  has  been  contracted  prior  to  August  29,  1916,  pay  shall  not  be 
deducted  for  absence  on  account  of  such  disease.  (See  19  Comp.  Dec.,  4£3.)  File 
7657^394  Sec.  Navy,  Sept.  11, 1916;  C.  M.  O.  33, 1916.  [21  That  enlisted  men  shall  be 
required  to  "  make  good"  any  time  lost  during  current  enlistment  in  excess  of  one  day 
on  account  of  sickness  or  disease  resulting  from  their  own  Intemperate  use  of  drugs 
or  alcoholic  liquors,  or  other  misconduct,  only  where  such  sickness  or  disease  was 
contracted  on  or  subsequent  to  August  29,  1916.  (See  19  Comp.  Dec.,  583.)  File 
7657-394:1,  Sec.  Navy,  Sept.  20, 1916;  C.  M.  O.  33, 1916.  See  also  File  7657-399:4,  Sec. 


46. 

enlisted  man  in  active  service  who  shall  be  absent  from  duty  on  account  of  disease 
resulting  from  his  own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other  mis- 
conduct shall  receive  pay  for  the  period  of  such  absence,  the  time  so  absent  and  the 
cause 'thereof  to  be  ascertained  under  such  proceedure  and  regulations  as  may  be 
prescribed  by  the  Secretary  of  War."  (See  G.  0. 100,  June  15, 1914.)  See  GENERAL 
ORDER  No.  100,  June  15,  1914. 

47.  Fixed  by  statute — The  pay  of  officers  and  enlisted  men  of  the  Navy  is  fixed  by  law, 

and  being  thus  fixed  it  is  not  the  subject  of  contract,  which  might  be  varied  by  the 
terms  of  such  agreement.  14  J.  A.  G.,233;  File  3980-452:2,  J.  A.  G.,Dec.  8, 1909,  p.  4. 

48.  Same — Since  the  law  fixes  the  salary,  the  incumbent  of  an  office  is  entitled  to  the  salary 

attached  thereto,  and  neither  the  appointing  power  nor  disbursing  officers  have  con- 
trol, beyond  the  limits  of  the  statute,  over  the  compensation.  See  "OFFICE,"  17, 18. 

49.  Fleet  Naval  Reserve.   See  File  2*550-20. 

50.  Four  months'  gratuity.   See  File  28550-20. 

51.  Fraudulent  enlistment — Proof  of  receipt  of  pay  or  an  allowance.    See  FRAUDULENT 

ENLISTMENT. 

52.  Same — Liability  of  disbursing  officers  for  amounts  paid  as  pay  to  enlisted  men  serving 

under  a  fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  32. 

53.  General  Order  No.  1OO.   See  GENERAL  ORDER  No.  100,  June  15, 1914;  PAY,  46. 

54.  Hard  labor.   See  CONFINEMENT,  27;  PAY,  28. 

55.  1-4893.   See  NAVAL  INSTRUCTIONS,  1913, 1-4»93. 

56.  Increase  of  pay  of  enlisted  men— Can  not  be  increased  without  an  act  of  Congress. 

File  7657-393,  J.  A.  G.,  Sept.  23, 1916. 

57.  Increase  of  pay  of  commissioned  warrant  officers— Under  the  provisions  of  the 

act  of  August  29,  1916.    See  PAY,  114. 

58.  Insane — Receipt  of  pay  by  an  enlisted  man  who  is  a  patient  in  the  Mendocino  State 

Hospital  for  the  Insane.  FHe  852«>406:1,  J.  A.  G.,  June  24,  1916;  8528-406,  J.  A.  G., 
May  6, 1914.  See  also  File  8528-410. 


450  PAY. 

59.  Same— Patients  and  prisoners  in  the  Government  Hospital  for  the  Insane.    See 

GOVERNMENT  HOSPITAL  FOR  THE  INSANE,  1-5. 

60.  Leave  of  absence  without  pay.   Sec  LEAVE  OF  ABSENCE,  12-13. 

61.  Leave  or  waiting  orders  pay— Navy  Regulations,  1913,  R-4406(ll),  R-4410(2),provide 

that  warrant  officers  "when  on  leave  or  waiting  orders  shall  receive  the  leave  or 
waiting  orders  pay  fixed  by  section  1556,  R.  S.,"  as  amended  by  the  act  of  May  13, 
1908.  (35  Stat.  127.)  [See  also  act  June  24, 1910,36  Stat.  605.]  In  view  of  the  above 
where  a  warrant  officer  was  absent  on  leave  of  eight  days,  the  department  held  that 
he  should  receive  leave  or  waiting  orders  pay  as  provided  by  the  Navy  Regulations. 
File  17789-24,  Sec.  Navy,  July  19, 1915;  C.  M.  O.  27, 1915,  8. 

62.  Longevity.   See  CONSTRUCTIVE  SERVICE,  1;  LONGEVITY,  1-3. 

63.  Marines— Marines  not  sentenced  to  dishonorable  discharge  should  be  sentenced  to 

forfeiture  of  pay  only  (not  allowances),  during  confinement.  C.  M.  O.  42, 1909, 3;  14, 
1910,  7;  15, 1910,  6;  17, 1910,  5;  14, 1913,  3. 

64.  Marine  officers— Section  1612  Revised  Statutes  is  express  that  "the  officers  of  the 

Marine  Corps  shall  be  entitled  to  receive  the  same  pay  and  allowances  *  *  *  as 
are  or  may  be  provided  by  or  in  pursuance  of  law  for  the  officers  *  *  *  of  like 
grades  in  the  infantry  of  the  Army. 

Thus,  although  officers  of  the  Marine  Corps  serve  side  by  side  with  officers  of  the 
Navy,  and  although  in  both  cases  they  are  governed  by  the  same  laws  and  regulations 
and  are  ordered  to  duty  by  the  same  authority,  nevertheless  they  receive  pay  under 
two  different  laws,  the  Marine  Corps  being  in  all  cases  paid  in  accordance  with  laws 
relating  to  the  Army,  while  the  Navy  proper  is  paid  under  specific  laws  relat- 
ing to  it.  It  has  frequently  happened  that  the  two  rates  of  pay  differ  for  precisely 
the  same  duty.  For  example,  officers  of  the  Navy  since  1908  have  received  additional 
pay  for  sea  duty,  while  until  recently  no  such  additional  pay  was  allowed  officers 
of  the  Marine  Corps  although  serving  on  board  the  same  vessels  as  the  officers  of  the 
Navy.  Marine  officers  "wherever  serving"  are  entitled  to  be  paid  according  to  the 
laws  governing  the  pay  of  the  Army,  as  those  laws  are  or  may  become.  (Reid  v. 
U.  S.,  18  Ct.  Cfa.  638.)  File  26280-61,  Sec.  Navv,  July  10, 1915. 

65.  Midshipmen— Suspension  without  pay.    See  MIDSHIPMEN,  62. 

66.  Minors— Reenlistment.    See  PAY,  86. 

67.  Mounted— Marine  officer  on  duty  in  the  Office  of  the  Judge  Advocate  General  is  not 

entitled  to  mounted  pay.    File  26254-^305.    See  also  ALLOWANCES,  12. 
88.  Naval  Instructions,  1913, 1-4893.   See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 
•69.  Naval  Militia— Retired  officer  of  the  Regular  Navy  holding  a  commission  in  the  Naval 

Militia.    See  NAVAL  MILITIA,  24;  PAY,  94. 
'70.  Same — Pay  of  Naval  Militia  in  joint  maneuvers  with  the  Regular  Navy.    See  NAVAL 

MILITIA,  25. 

71.  Officers— The  Navy  Department  has  not  such  control  over  the  pay  of  an  officer  that 

it  can  compel  him  to  pay  private  debts,  nor  does  it  act  as  an  agency  for  their  collection. 
An  office  can  be  proceeded  against  in  the  civil  courts  for  private  debts,  if  it  is  desired, 
in  the  same  manner  as  civilians,  but  creditors  must  not  expect  the  Navy_  Department 
to  assist  them  in  collecting  debts.  (Routine  letter  of  Bureau  of  Navigation  in  private 
debt  cases.)  See  DEBTS,  1, 13-18. 

72.  Same — Pay  forfeited  by  court-martial  sentence.    See  PAY,  100-105. 

73.  Same — Pending  trial  by  general  court-martial.    See  File  4657-98.    See  also  PAY,  15. 

74.  Same— Can  not  be  deprived  of,  etc.    See  PAY,  47,  48,  71, 75, 76;  RETIRED  OFFICERS,  18. 

75.  Same— After  an  officer  actually  receives  pay  legally  due  him  under  a  commission,  such 

money  becomes  his  personal  property,  and  the  Government  retains  no  interest  or 
claim  therein.  File  13673-1442:1,  J.  A.  G.,  Jan.  13, 1912.  Seealso  LEAVE  OF  ABSENCE, 
12, 13;  PAY,  74,  76, 115, 116. 

76.  Same—"  With  some  exceptions,  Congress  may  at  any  time  make  alterations  of  the  sala- 

ries of  public  officers,  to  take  effect  from  the  passage  of  the  act.    The  only  contract 
which  aris( 
that  salarj 

"  A  salary  that  is  established  by  statute  can  not  be  increased  or  diminished  by 
executive  officers.  It  is  not  a  subject  of  contract  between  such  officers.  The  Incum- 
bent of  an  office  is  entitled  to  the  salary  attached  thereto  by  law,  and  if  he  receives 
a  less  sum  from  the  disbursing  officers  he  can  claim  and  receive  the  balance." 
(Dyer  v.  U.  S.,  20 Ct.  Cls.  166, 171.)  File 3980-452:2,  J.  A.  G.,  Dec.  8, 1909,  p.  6. 


PAY.  451 

"The  law  creates  the  office,  prescribes  its  duties,  and  fixes  the  compensation. 

*  *    *    T he  appointing  power  has  no  controj,  beyond  the  limits  of  the  statute,  over 
the  compensation,  either  to  increase  or  diminish  it.    This  has  been  substantially  de- 
cided in  many  cases.    *   *   *    If  the  appointing  officer  has  no  power  to  change  the 
compensation  of  an  inspector,  certainly  the  paying  officer  has  not."    (Adams  v .  U.  S., 
20  Cf.  Cls.  115, 117. 118.)    File  3930-452:2,  J.  A.  G.,  Dec.  8, 1909,  p.  6. 

"It  is  clear  that  when  the  statute  gives  a  right  to  compensation  in  a  given  case 

*  *   *   accounting  officers  can  not  dispense  with  the  statute  or  make  stipulations 
for  allowing  more  or  less  than  it  gives.    (1st  Comp.  Dec.,  v.  5, 501.)"    File  3980-452:2, 
J.  A.  G..  Dec.  8, 1909,  p.  7. 

"  As  the  department  app 
the_  compensation  was  fixe 

entitled  to  the  compensation  given  oy  law,  «  ue  iias  penornieu  me  auiy,  ror  tne 
Secretary  has  no  more  discretionary  power  to  withhold  what  the  law  gives  than  he 
has  to  give  what  the  law  does  not  authorize."  (Converse  v.  U.  S.,  21  How.,  474.) 
File  3980^452:2,  J.  A.  G.,  Dec.  8,  1909,  p.  7. 

"The  right  to  compensation  being,  therefore,  created  by  law,  and  not  being  a  sub- 
ject of  contract,  nothing  can  be  assumed  to  modify  that  right,  such  as  the  regulations 
of  an  executive  department,  except  such  as  are  in  conformity  with  the  provisions  of  a 
statute  existing  or  made  in  accordance  with  a  later  statute."  File  3980-452:2,  J.  A.  G., 
Dec.  8, 1909,  p.  6. 

77.  Pay-account  status  of  an  accused— The  pay-account  status  of  an  accused  is  in- 

corporated in  the  instructions  governing  summary  courts-martial  merely  as  an  aid 
in  preventing  an  excessive  or  illegal  sentence  involving  pay.  See  ACCUSED,  54. 

78.  "Pay  miscellaneous."    See  DETENTIONERS,  2. 

79.  Prisoners.    File  6628-00.    See  also  PAY,  15,  28;  DETENTIONERS. 

80.  Rate  of  pay— Should  be  included  in  records  of  deck  courts  and  summary  courts- 

martial.    C.  M.  0. 12, 1915,  7.    See  also  ACCUSED,  54. 

81.  Rear  admirals.   See  REAR  ADMIRALS,  2-6. 

82.  Recess  appointments— "No  money  shall  be  paid  from  the  Treasury,  as  salary,  to 

any  person  appointed  during  the  recess  of  the  Senate,  to  fill  a  vacancy  in  any  existing 
office,  if  the  vacancy  existed  while  the  Senate  was  in  session  and  was  by  law  required 
to  be  filled  by  and  with  the  advice  and  consent  of  the  Senate,  until  such  appointee 
has  been  confirmed  by  the  Senate."  (R.  S.  1761.)  (See  26  Op.  Atty.  Gen.  234  con- 
struing R.  S.  1761.  See  also  21  Comp.  Dec.  722;  21  Comp.  Dec.  726).  File  26521-152, 
J.  A.  G.,  Sept.  22, 1916. 

83.  Reduction  in  rating— Forfeiture  of  pay  by  sentence  of  court-martial  is  based  on  pay 

of  rating  to  which  accused  has  been  reduced.    See  REDUCTION  IN  RATING,  30. 

84.  Same— Article  32  of  the  Articles  for  the  Government  of  the  Navy  is  so  construed  that 

sentences  by  summary  courts-martial  which  involve  loss  of  pay  are  deemed  to  be 
such  as  deprive  the  offender  of  pay  in  stated  terms  of  amount;  and  that "  disrating" 
alone  is  not,  within  the  meaning  of  the  law,  to  be  regarded  as  involving  loss  of  pay, 
but  as  a  reduction  of  rating  only.  U.  S.  Navy  Reg.  Cir.  No.  19,  June  4, 1879. 

85.  Reduction  of  period  of  confinement  by  convening  authority— The  convening 

authority  should  also  make  a  corresponding  reduction  in  the  forfeiture  of  pay  and 
allowances.  See  CONFINEMENT,  34. 

86.  Reenlistment  of  minors— A  person  who  enlists  in  the  Navy  for  minority,  is  honorably 

discharged  within  three  months  before  the  expiration  of  his  enlistment  and  reenlists 
for  four  years,  within  four  months  thereafter,  is,  and  is  entitled  to  all  the  benefits 
accruing  to,  an  "enlisted  man."  (20  Comp.  Dec.,  409).  File  7657-300,  Sec.  Navy, 
Aug.  11, 1915;  C.  M.  O.  29, 1915,  8. 

S".  Remitted  by  discharge— where  the  bad-conduct  discharge  is  executed  before  sufficient 
pay  has  accumulated  under  the  provisions  of  1-4893  to  execute  the  total  loss  of  pay  to 
which  an  accused  was  sentenced,  the  execution  of  the  bad-conduct  discharge  operates 
itself  as  a  remission  of  the  balance.  (158  S.  &  A.  Memo.  3035;  File  26806-131:12.) 
C.  M.  O.  53, 1914,  7;  22, 1915, 5.  Seealso  BAD  CONDUCT  DISCHARGE,  3. 

88.  Retained  beyond  enlistment— Enlisted  persons  in  the  Marine  Corps  are  entitled 
to  an  increase  of  one-fourth  their  former  pay  while  detained  beyond  their  terms  of 
enlistment,  but  this  is  not  to  be  computed  upon  the  20  per  cent  increase  for  service 
in  time  of  war,  as  provided  by  the  act  of  April  26, 1898  (30  Stat.  364),  to  enlisted  men 
of  the  Army.  5  Comp.  Dec.  524. 

S9.  Retainer  pay— Increase  of  25  per  cent  in  pay  for  enrolling  in  the  Fleet  Naval  Reserve. 
See  File  28550-20. 


452  PAY. 

90.  Retired  officers  detailed  on  active  duty— The  act  of  August  29,  1916.  provides: 

"Hereafter  any  retired  officer  of  the  naval  service  who  shall  be  detailed  on  active 
duty  shall,  while  so  serving,  receive  the  active  duty  pay  and  allowances  of  the  grade, 
not  above  that  of  lieutenant  commander  in  the  Navy  or  of  major  in  the  Marine  Corps, 
that  he  would  have  attained  in  due  course  of  promotion  if  he  had  remained  on  the 
active  list  for  a  period  beyond  the  date  of  his  retirement  equal  to  the  total  amount 
of  time  during  which  he  has  been  detailed  on  active  duty  since  his  retirement." 
Held:  That,  provided  a  retired  officer  meets  the  other  requirements  of  the  law  above- 
quoted,  that  said  law  operates  ex  proprio  vigore  to  confer  upon  such  officer  the  benefits 
mentioned,  and  it  is  accordingly  decided  that  the  issuance  of  "new  orders  to  active 
duty"  is  not  necessary  to  accomplish  the  purpose  of  the  law.  (See  20  Op.  Atty. 
Gen.,  687.)  File  27231-77,  Sec.  Navy,  Sept.  19,  1916;  C.  M.  O.  33,  1916. 

91.  Same— Retired  Marine  officer  ordered  to  active  duty  by  the  Secretary  of  the  Navy 

under  the  provisions  of  the  act  of  August  22, 1912  (37  Stat.  329).  See  MARINE  CORPS, 
91;  RETIRED  OFFICERS,  1. 

92.  Retired  officers  employed  In  civil  offices  or  positions.    See  RETIRED  OFFICERS. 

93.  Retired  officers  admitted  to  naval  home.    See  NAVAL  HOME,  1. 

94.  Retired  officers  when  holding  a  commission  In  the  Naval  Militia.    File  26254- 

207,  Aug.,  1916.     See  also  RETIRED  OFFICERS,  54-58. 

95.  Retired  officers  pay — Whether  considered  as  "pay"  or  "pension."    See  RETIRED 

OFFICERS,  16. 

96.  Sea  pay  lor  Marine  officers.    See  PAY,  64. 

97.  Sentences  of  deck  courts.   See  DECK  COURTS,  35^41, 51-56. 

98.  Sentences  of  enlisted  men — General  courts-martial— A  court  is  not  authorized  to 

adjudge  a  sentence,  not  including  discharge,  in  which  there  is  no  limitation  upon 
the  period  during  which  the  loss  of  pay  (and  allowances  in  the  cases  of  marines)  should 
continue,  as  the  forfeiture  is  thereby  made  applicable  to  the  entire  remaining  portion 
of  the  enlistment  of  the  accused.  (C.  M.O.  42, 1909, 3;  14, 1910,  7;  26, 1910, 8;  21, 1912,  4; 
1,  1913,  3;  14,  1913.  5;  Comp.  Dec.  Nov.  21,  1914,  App.  No.  24095,  File  26254-1658:1). 
C.  M.  O.  49,  1914,  7. 

99.  Same — "  In  the  case  of  enlisted  men;  loss  of  pay  and  allowances  due  and  that  may 

become  due  during  the  current  enlistment  of  the  accused,  is  added  to  the  limit  of 
punishment  prescribed  by  the  President."  The  foregoing  provision  was  added  to 
the  limitation  9f  punishment  for  general  courts-martial  by  C.  N.  R.  5,  October  4, 
1916,  as  a  substitute  for  paragraph  4. 

100.  Sentences  of  officers— A  Marine  officer  was  sentenced  to  lose  seventy-five  dollars 

($75)  of  his  pay  per  month  for  a  period  of  six  (6)  months,  total  loss  of  pay  amounting 
to  four  hundrea  and  fifty  dollars  ($450).  '  In  reviewing  the  case  the  Secretary  of  the 
Navy  remarked  in  part  as  follows: 

The  department  considers  that  a  sentence  involving  loss  of  numbers  is  a  more 
appropriate  form  of  punishment  than  forfeiture  of  pay  for  commissioned  officers 
(other  than  cammissioned  warrant  officers).  (See  C.  M.  0. 105, 1905.  p.  1.) 

While  the  department  Is  on  record  as  favoring  loss  of  pay,  rather  than  loss  of  num- 
bers, in  the  case  of  commissioned  warrant  officers,  it  is  because  loss  of  pay  is  the  only 
substantial  punishment,  less  than  dismissal,  that  can  be  adjudged  in  their  cases. 
(Forms  of  Procedure,  1910,  p.  42;  Index-Digest,  1914,  p.  39;  C.  M.  O.  37, 1914;  52, 1914.) 

Therefore,  while  the  sentence  adjudged  and  approved  by  the  convening  authority 
in  this  case  Is  thoroughly  legal,  it  is  not  in  accord  with  the  policy  of  the  department 
which,  as  stated  above,  does  not  favor  a  sentence  involving  solely  loss  of  pay  in  the 
case  or  commissioned  officers  of  the  naval  service  on  the  active  list,  other  than  com- 
missioned warrant  officers.  C.  M.  O.  48, 1915,  5. 

101.  Same— A  Naval  Constructor  was  sentenced  inter  alia  "to  lose  pay  amounting  to  one 

hundred  and  fifty  dollars  ($150)  per  month  for  six  (6)  months/'    C.  M.  O.  40, 1913. 

102.  Same— Officers  have  been  sentenced  by  general  courts-martial  to  forfeit  pay.    See 

Q.  O.  52,  April  15, 1865;  C.  M.  O.  37, 1886,  2. 

103.  Same — In  a  case  where  an  officer  was  sentenced  "to  have  the  sum  of  ten  (10)  dollars 

checked  monthly  against  his  pay,  which  said  sums  are  to  be  paid  to  his  creditor," 
the  department  stated  in  part:  "Pay  forfeited  by  sentence  of  courts-martial  accrues 
to  the  United  States  for  the  maintenance  of  Navy  Hospitals,  and  such  forfeitures 
can  not  be  diverted  to  the  benefit  of  an  individual,  however  justly  the  amount  may 
be  due  him."  C.  M.  O.  36, 1881,  3. 

104.  Same— Where  a  loss  of  pay  was  adjudged  by  a  general  court-martial  in  these  words, 

"to  lose  fifty  dollars  ($50)  per  month  for  six  (6)  months,"  the  department  remarked: 
"The  court  in  adjudging  that  part  tff  the  sentence  relative  to  loss  of  pay  apparently 


PAY.  453 

intended  that  the  loss  of  $50  per  month  be  from  the  pay  of  the  accused.  Tt  is  not  posi- 
tively so  stated  and ,  therefore,  in  order  that  there  may  be  no  ambiguity  as  to  the  inter- 
pretation of  the  sentence,  the  record  is  returned  fo'r  the  purpose  of  reconsidering  " 
tne  sentence.  The  court,  in  revision,  revoked  the  first  and"  aaj  udged  a  new  sentence 
which  set  forth  that  the  accused  would  "  lose  fifty  dollars  ($50)  per  month  of  his  pay,'' 
etc.  C.  M.  0. 11, 1915. 

105.  Same— Sentences  which  include  forfeiture  of  pay  shall,  in  the  case  of  officers,  state 

the  rate  of  pay  and  time  of  such  forfeiture.  Those  including  suspension  must  state 
distinctly  whether  from  rank  or  from  duty  only.  (R-816  (1).) 

106.  Sentences  of  paymasters'  clerks— "To  lose  one-half  (J)  of  sea  pay  for  six  (6) 

months,  amounting  to  four  hundred  and  six  dollars  and  twenty-five  cents  ($406.25). 
C.  M.  O.  37, 1912. 

"To  lose  one-half  (J)  of  shore-duty  pay  for  five  (5)  months,  amounting  to  four 
hundred  and  sixteen  dollars  and  sixty-seven  cents  ($416.67)."  C.  M.  O.  30,  1911,  2. 

107.  Sentences  of  summary  courts-martial.    See  SUMMARY  COURTS-MARTIAL. 

108.  Sentences  of  warrant  officers— "To  lose  one-fourth  (J)  of  his  sea  pay  for  a  period 

of  one  (l)  year."    C.  M.  O.  24, 1913. 

"To  oe  placed  on  leave  pay  for  six  (6)  months."  This  part  of  the  sentence  was 
remitted  by  the  department.  C.  M.  0. 18, 1912,  2. 

"To  lose  pay  amounting  to  fifty  dollars  ($50)  per  month  for  a  period  of  six  (6) 
months."  C.  M.  O.  22, 1914. 

"To  be  suspended  from  duty  for  a  period  of  six  (6)  months  on  one-half  (i)  of  shore- 
duty  pay."  €.  M.  O.  31, 1912. 

"To  be  suspended  from  duty  for  a  period  of  one  (1)  year  on  one-half  ( J)  shore  duty 
pay."  Reduced  to  six  months.  C.  M.  O.  32, 1912. 

Sentences  involving  suspension  from  duty  are  not  favored  by  the  department. 
See  SUSPENSION  FROM  DUTY. 

109.  Same — An  acting  boatswain  was  tried  by  general  court-martial  convened  by  the 


"  That  part  of  the  sentence  which  relates  to  loss  of  pay  and  allowances,  is  disapproved 
for  the  reason  that  the  convening  authority  deems  that  full  pay  is  necessary  for  the 
proper  maintenance  of  the  accused  while  on  active  duty."  C.  M.  O.  105,  1905,  1. 
See  also  File  10988-02;  3852-02;  Comp.  Dec.  Apr.  22, 1902. 

110.  Sentences  of  warrant  officers  ( commissioned)— "To  lose  one-half  (J)  of  sea-duty 

pay  for  a  period  of  one  (1)  year.'5    C.  M.  O.  11,  1913. 

"To  lose  seventy-five  dollars  ($75)  per  month  of  his  pay  for  a  period  of  six  (6) 
months."  C.  M.  O.  16, 1914. 

"To  lose  fifty  dollars  ($50)  per  month  of  his  pay  for  a  period  of  ten  (10)  months." 
C.  M.  O.  21, 1914. 

"To  lose  one-fourth  (1)  of  his  pay  for  a  period  of  six  (6)  months."    C.  M.  0. 12, 1914. 

"To  be  suspended  from  duty  for  a  period  of  six  (6)  months  on  one-half  (i)  of  shore- 
duty  pay."  C.  M.  O.  21. 1910,  17;  1,  1911,  3. 

"To  forfeit  one-half  (i)  the  pay  that  may  become  due  him  during  such  period  of 
restriction,"  C.  M.  O.  1, 1911,  3. 

"To  be  suspended  from  duty  for  a  period  of  six  (6)  months  on  three-quarters  (?) 
of  shore  duty  pay."  C.  M.  O.  25, 1913. 

Sentences  involving  suspension  from  duty  are  not  looked  upon  with  favor  by  the 
department.  See  SUSPENSION  FROM  DUTY.' 

111.  Waiting  orders  pay.    See  PAY,  61. 

112.  Waiver  of— As  the  department  has  no  lawful  power  to  fix  a  rate  of  pay  differing  from 

that  which  is  prescribed  by  law  in  any  given  case  or  under  any  given  circumstances, 
it  would  be  without  effect  to  grant  a  leave  of  absence  on  condition  that  it  be  without 
pay;  even  if  an  officer  should  request  leave  of  absence  without  pay,  still  such  a  case 
would  be  within  the  rule  as  laid  down  in  Rush  v.  U.  S.  (35  Ct.  Cls.  223)  and  Laurey 
».  U.  S.  (32  Ct.  Cls.  259)  where  it  was  held  that  although  the  parties  waived  their  right 
to  receive  certain  pay  which  the  law  gave  to  them,  yet  sucn  a  waiver,  although  not 
a  forced  one,  d  id  not  operate  to  deprive  them  of  the  right  to  pay  which  was  prescribed 
by  statute,  and  that  they  could  recover.  As  a  corollary  to  this,  it  is  also  true  that 
although  an  officer  should  agree  to  accept,  or  even  request,  a  leave  of  absence  without 
pay,  still  he  would  be  entitled  to  recover  his  salary  notwithstanding;  this  on  the 
authority  of  Glavey  v.  U.  S.  (182  U.  S.  595).  File  13673-1442,  J.  A.  G.,  Nov.  22, 1911, 
pp.  16,  17.  See  also  "OFFICE."  17,  18;  RETIRED  OFFICERS,  18  citing  U.  S.  v.  An- 
drews (240  U.  S.  90). 


454  PAT. 

113.  Warrant  officers'  and  commissioned  warrant  officers'  sentences.    See  PAY, 

108-110. 

114.  Warrant  officers  (commissioned)— "Creditable  records,"  within  the  meaning  of 

the  act  of  August  29, 1916— The  act  of  August  29, 1916  (39  Stat.  578),  provides  as  fol- 
lows: "  Hereafter  chief  boatswains,  chief  gunners,  chief  machinists,  chief  carpenters, 
chief  sailmakers,  chief  pharmacists  and  chief  pay  clerks,  on  the  active  list  with 
creditable  records,  shall,  after  six  years  from  date  of  commission,  receive  the  pay  and 
allowances  that  are  now  or  may  hereafter  be  allowed  a  lieutenant  (junior  grade), 
United  States  Navy:  Provided,  That  chief  boatswains,  chief  gunners,  chief  ma- 
chinists, chief  carpenters,  chief  sailmakers,  chief  pharmacists,  and  chief  pay  clerks, 
on  the  active  list  with  creditable  records,  shal£  after  twelve  years  from  date  of 
commission,  receive  the  pay  and  allowances  that  are  now  or  may  hereafter  be  allowed 
a  lieutenant.  United  States  Navy." 

"Creditable  records,"  within  the  meaning  of  the  foregoing,  does  not  import  dis- 
tinguished records,  but  requires  only  that  a  record  be  such  that  upon  examination 
for  promotion  it  would  be  found  satisfactory.  In  passing  upon  the  creditability  of 
an  officer's  record  in  these  cases,  consideration  should  be  given  to  all  matters  therein 
disclosed,  whether  pertaining  to  his  mental,  moral,  or  professional  qualifications, 
and  it  is  necessary  that  an  officer  be  satisfactory  in  all  these  respects  if  his  record  is 
to  be  deemed  creditable.  Further,  in  determining  whether  the  record  of  a  commis- 
sioned warrant  officer  Is  creditable,  the  investigation  should  ordinarily  be  limited 
to  a  scrutiny  of  his  record  in  his  present  grade,  and  his  prior  record  in  the  service  should 
not  be  taken  into  consideration  except  in  the  cases  where  under  existing  law  this 
would  be  done  in  determining  his  fitness  for  promotion.  And,  when  a  commissioned 
warrant  officer  has  the  necessary  length  of  service,  and  it  has  been  decided  by  the 
department  that  his  record  is  creditable,  this  definitely  fixes  the  rate  of  pay  and  allow- 
ances to  which  he  is  entitled  under  the  above-quoted  statute,  and,  in  the  event  of  his 
record  ceasing  to  be  creditable,  the  same  can  not  be  affected  except  by  means  of  dis- 
ciplinary action  as  in  the  case  of  all  officers.  File  177t9-27,  J.  A.  G.,  Sept.  21,  1916; 
C.  M.  O.  33, 1916,  6. 

115.  Withholding  pay— The  department  can  not  withhold  the  compensation,  in  whole 

or  in  part,  to  which  an  officer  is  by  law  entitled.  16.  J.  A.  G.,  85.  See  also  PAY,  71, 
75,  76, 112;  RETIRED  OFFICERS,  18  citing  U.  S.  v.  Andrews  (240  U.  8.  90.) 

116.  Same— The  department  can  not  enforce  a  regulation  providing  for  the  deprivation 

or  a  reduction  of  the  pay  of  an  officer,  unless  there  is  some  plain  statutory  authority 
therefor.  15,  J.  A.  G.,  362, 

PAY  CLERKS  AND  CHIEF  PAY  CLERKS. 

1.  Appointment  of  under  act,  March  3, 1915(38  Stat.  948)— Under  the  act  of  March 

3,  1915  (38  Stat.,  942)  all  appointments  as  chief  pay  clerk  must  be  made  from  the 
grade  of  pay  clerk,  all  appointments  as  pay  clerk  must  be  made  from  the  grade  of 
acting  pay  clerk,  and  all  appointments  as  acting  pay  clerk  must  be  made  from  the 
enlisted  men  of  the  Navy  having  the  required  service.  However,  certain  exceptions 
are  made  in  that  law,  as  follows  (a)  paymasters'  clerks  who  were  in  the  service  on 
March  3,1915,  who  are  eligible  for  appointment  without  having  had  previous  service  as 
enlisted  men;  and  (b)  persons  in  civil  life  who  had  the  required  service  as  paymaster's 
clerks  in  the  Navy,  but  whose  appointments  were  revoked  within  six  months  prior 
to  the  passage  of  the  act.  (Sec  C.  M.  0. 12, 1915,  p.  13.) 

Therefore,  where  a  paymaster's  clerk  being  eligible  for  appointment  under  the 
above  law  as  chief  pay  clerk  was  examined  and  found  not  qualified,  which  finding 
was  approved  by  the  Secretary  of  the  Navy  and  made  final  by  the  revocation  of  his 
appointment,  he  can  not  be  examined  again  for  appointment  as  chief  pay  clerk  with 
a  view  to  appointment  as  one  of  the  exceptional  cases  specified  in  the  law. 

If  he  were  so  examined,  found  qualified  and  appointed,  this  would  not  only  be 
contrary  to  the  law,  but  would  not  entitle  him  to  the  pay  of  the  office  to  which  thus 
illegally  appointed.  File  28554-135:1,  J.  A.  G.,  Aug.  14,  1915;  C.  M.  O.  29,  1915,  8-9. 
See  also  File  5460-77,  Sec.  Navy,  Sept.  7, 1915. 

2.  Same — The  naval  appropriation  act  of  March  3,  1915  (38  Stat.  942)  provides  in  part 

that  "  paymasters^  clerks  now  in  the  service  and  former  paymasters'  clerks  whose 
appointments  have  been  revoked  within  six  months  next  preceding  the  passage  of 
this  act  *  *  *  may,  upon  the  passage  of  this  act,  be  warranted  as  pay  clerks  with- 
out previous  service  as  enlisted  men  or  as  acting  pay  clerks." 


PAY  CLERKS  AND  CHIEF  PAY  CLERKS.        455 

In  the  case  of  a  former  paymaster's  clerk  who  was  otherwise  eligible  for  appointment 


accepted  by  the  department,  it  was  held  that  such  former  paymaster's  clerk  was  not 
eligible  for  appointment  as  pay  clerk  under  that  part  of  said  act  above  quoted,  as  his 
appointment  was  not  "revoked"  within  the  meaning  of  the  law.  However,  this 
former  paymaster's  clerk,  having  had  over  nine  years  honorable,  continuous  service 
in  the  Navy  as  yeoman,  would  be  rendered  immediately  available  for  appointment 
as  acting  pay  clerk  in  the  event  that  he  should  enlist  in  the  Navy  and  be  given  an 
acting  appointment  as  chief  yeoman,  in  accordance  with  other  provisions  of  the 
act  cited  above.  File  5460-71,  J.  A.  G.,  March  25, 1915;  C.  M.  0. 12, 1915, 13. 

3.  Same— Service  on  board  the  "receiving  ship"  at  Cavite,  P.  I.,  and  at  the  Naval  Hos- 

pital, Yokohama,  Japan,  is  not  service  "on  board  a  cruising  vessel  of  the  Navy" 
within  the  meaning  of  the  act  approved  March  3, 1915  (38  Stat.  942),  with  reference  to 
the  appointment  of  acting  pay  clerks  from  enlisted  men.  In  this  case  the  vessel 
doing  duty  as  receiving  ship  was  also  a  cruising  vessel,  but  the  pay  clerk  concerned  was 
attached  to  such  vessel  as  a  member  of  the  receiving  ship's  personnel,  and  not  as  a 
member  of  the  personnel  attached  to  the  vessel  as  a  cruising  ship.  (See  Naval  Instruc- 
tions, 1913, 1-585-587.)  File  5460-79,  J.  A.  G.,  Sept.  18, 1915;  C.  M.  O.  31. 1915,  5. 

4.  Bonds— It  has  repeatedly  been  decided  by  the  Supreme  Court  that  the  department 

has  the  right  to  require  a  bond  in  certain  cases  without  express  statutory  authority, 
and  Naval  Instructions,  1913,  1-3901,  expressly  provide  that  such  officers  "as  the 
Secretary  of  the  Navy  may  direct "  shall  be  required  to  furnish  bonds.  File  39SO-1283, 
J.  A.  G.,  Oct.  18. 1916. 

5.  Chief  pay  clerk— Tried  by  general  court-martial.    C.  M.  O.  46, 1915;  36, 1916. 

6.  Embezzlement— "A  pay  clerk  could  not  consistently  be  charged  with  'embezzling' 

Government  funds  which  were  in  contemplation  of  law  in  the  possession  of  the  officer 
of  the  Pay  Corps  under  whom  he  was  serving  and  were  not  received  by  the  clerk  in 
the  lawful  performance  of  the  duties  of  his  office."  File  3980-12J3,  J.  A.  G..  Oct.  18, 
1916. 

7.  Haiti— The  actof  Junel2,1916  (39  Stat.  223)  ,  entitled  "An  act  to  authorize  and  empower 

officers  and  enlisted  men  of  the  Navy  and  Marine  Corps  to  serve  under  the  Government 
of  the  Republic  of  Haiti,  and  for  other  purposes,  "is  construed  as  authorizing  the  Presi- 
dent to  detail  such  chief  pay  clerks,  pay  clerks,  and  acting  pay  clerks  to  assist  the  Re- 
public of  Haiti  "as  may  pe  mutually  agreed  upon  by  him  and  the  President  of  the 
Republic  of  Haiti , ' '  notwithstanding  that  such  clerks  may ,  under  such  detail,  be  in  the 
performance  of  duty  independent  of  pay  officers.  By  this  construction  the  above  act 
modifies  the  act  of  March  3, 1915  (38  Stat. ;  943),  providing  that  "chief  pay  clerks,  pay 
clerks,  and  acting  pay  clerks  shall  be  assigned  to  duty  with  pay  officers  under  such 
rules  as  the  Secretary  of  the  Navy  may  prescribe,"  to  the  extent  above  indicated. 
File  5460-84,  J.  A.  G.,  Aug.  16, 1916;  C.  M.  0. 30, 1916,  8. 

8.  Legality— Of  pay  clerks,  not  connected  with  pay  office,  witnessing  payment  to  enlisted 

men  and  civil  employees.    File  26254-2050,  Sec.  Navy,  July  14,  1916. 

9.  Pay  clerks— Tried  by  general  court-martial.    C.  M.  O.  6;  1916. 

10.  Status— Of  pay  clerks  who  fail  professionally  or  physically  for  permanent  appoint- 

ments under  the  act  of  March  3,  1915  (38  Stat.  942).  File  5460-75,  J.  A.  G.,  June 
29, 1915. 

11.  Same — "Pay  clerks  have  by  law  been  given  a  permanent  status  and  are  assigned  to 

duty  with  officers  of  the  Pay  Corps  who  no  longer  have  the  selection  of  their  clerks." 
File  3980-1283,  J.  A.  G.,  Oct.  18, 1916. 

PAY  OFFICERS.   See  also  DISBURSING  OFFICERS;  EMBEZZLEMENT. 

1.  Confinement  of.    C.  M.  O.  33, 1896, 4. 

2.  Delegation  of  responsibility— Paymasters  may  not  delegate  any  part  of  their  respon- 

sibility to  their  subordinates.  This  practice  subjects  the  subordinate  to  the  possi- 
bility of  unjust  suspicion ,  it  exposes  him  to  temptation,  and  it  is  a  culpable  avoidance 
on  the  part  of  the  paymaster  of  the  care  and  labor  necessarily  incident  to  the  faithful 
and  proper  performance  of  his  duties.  G .  O.  74,  Apr.  7, 1866. 

3.  Responsibility  of— Order  of  superior  of  pay  officer  to  make  payment.    See  File  26543-66, 

Sept.  8, 1911;  R.  S.285. 

4.  R.  S.  285— An  order  by  the  Secretary  of  the  Navy  has  been  held  to  be  within  this  section. 

File  26254-1451:11,  Apr.  12,  1915,  citing  Swaim  v.  U.  S.  (165  U.  S.,557)  and  30  Op. 
Atty.  Gen. 


456  PAYMASTER'S  CLERKS,  MARINE  CORPS. 

PAY  RECEIPTS. 

1.  Destroyed— By  paymaster's  clerk.    C.  M.  O.  26. 1915. 

2.  Evidence — Photographs  of — Certified  photographs  of  pav  receipts  admitted  in  evidence. 

G.  C.  M.  Rec.  30684,  p.  263. 

PAY  BOLLS. 

I.  Evidence — Pay  roll  introduced  in  evidence  in  a  general  court-martial  trial.    C.  M.  O. 

30684,  p.  20. 

PAYMASTERS,  ASSISTANT.    See  ASSISTANT  PAYMASTERS. 

PAYMASTER'S  CLERKS. 

1.  "Absence  from  station  and  duty  after  leave  had  expired"— Charged  with.    C. 

M.  O.  38,  1913. 

2.  "Absence  from  station  and  duty  without  leave"— Charged  with.    C.  M.  0. 31, 1905. 

3.  Desertion — Charged  with.    See  DESERTION,  98. 

4.  General  court-martial— Tried  by.    G.  0. 143,  Oct.  28, 1869;  C.  M.  O.  3, 1903;  31, 1905; 

39, 1905;  32, 1908;  4, 1907;  29, 1911;  30, 1911;  26, 1912;  37,  1912;  35, 1913;  38, 1913;  24, 1915; 
26,  1915. 

5.  Pay  clerks— Tried  by  general  court-martial— Court-martial  orders  called  them  "pay 

clerks."    C.  M.  O.  102, 1894;  160, 1901;  26,  1902. 

6.  Reserve  ships— When  assignable  to.    See  File  13352-407,  J.  A.  G.,  March  16, 1912. 

7.  Retirement  of.   See  RETIREMENT  OF  OFFICERS,  38. 

8.  Sentence-^-Of  dismissal  by  general  court-martial— Not  necessary  to  be  confirmed  by 

the  President  as  a  paymaster's  clerk  is  neither  a  commissioned  nor  a  warrant  officer . 
The  sentence  may  be  carried  into  execution  when  approved  by  the  convening  au- 
thority. C.  M.  O.  173,  1902;  16  J.  A.  G.  65,  Nov.  2,  1911.  See  also  PAYMASTER'S 
CLERKS.  9. 

9.  Same — The  two  last  sentences  of  dismissal  adjudged  in  the  cases  of  paymaster's  clerks 

were  confirmed  by  the  President.    C.  M.  O.  24, 1915;  26,  1915. 

10.  Status  of —The  status  of  paymaster's  clerks  is  somewhat  similar  to  that  of  midshipmen 
in  that  they  both  serve  under  appointments  made  by  the  Secretary  of  the  Navy, 
although  that  of  a  midshipman  contains  the  words,  "By  direction  of  the  President." 
16  J.  A.  G.  68,  Nov.  2, 1911.  See  also  APPOINTMENTS,  30. 

II.  Same— Upon  detachment  of  pay  officer.    File  26254-359,  J.  A.  G.,  Nov.  9,  1909. 

12.  Same— Prior  to  act,  June  24,  1910  (36  Stat.  606).  See  File  5460-59,  J.  A.  G.,  Nov.  26, 
1912. 

PAYMASTER'S«CLERKS,  MARINE  CORPS  (CLERKS  TO  ASSISTANT  PAY- 
MASTERS). 

1.  Acting  paymaster's  clerk.    See  PHILIPPINE  CAMPAIGN  BADGES,  2. 

2.  Allotments— A  clerk  to  an  assistant  paymaster  is  an  officer  of  the  Marine  Corps  within 

the  meaning  of  the  act  of  June  10, 1896  (29  Stat.  361)  authorizing  officers  of  the  Navy 
and  Marine  Corps  to  make  allotments.  (121  S.  &  A.  Memo.  1699.)  File  19245-43, 
J.  A.  G.,  Sept.  8, 1911,  p.  5. 

3.  General  court-martial— Paymaster's  Clerk,  U.  S.  M.  C. ,  tried  by  general  court-martial 

on  charge  of"  Knowingly  and  willfully  misappropriating  and  applying  to  his  own  use 
and  benefit  money  of  the  United  States  intended  for  the  naval  service  thereof." 
C.  M.  0. 10, 1916. 

4.  Number  of.   See  PAYMASTER'S  CLERKS,  MARINE  CORPS,  5. 

5.  Retirement  Of — A  clerk,  one  of  the  authorized  five,  to  an  Assistant  Paymaster,  U.  S. 

Marine  Corps,  is  entitled  to  retirement  under  the  provisions  of  R.  S.  1444,  made  appli- 
cable to  him  (1)  by  the  clause  in  the  act,  June  24. 1910  (36  Stat.  625)  relating  to  clerks 
to  Assistant  Paymasters,  U .  S.  Marine  Corps;  (2)  by  the  clause  in  the  act,  March  3, 
1911  (36  Stat.  1044)  providing  for  the  retirement  of  paymaster's  clerks  in  the  Army; 
and  (3)  by  the  provision  in  the  act,  June  24, 1910  (36  Stat.  606)  authorizing  the  retire- 
ment of  paymaster's  clerks  in  the  Navy.  If  the  clerk  in  question,  is  a  clerk  to  an 
Assistant  Paymaster,  U.  S.  Marine  Corps  one  of  the  "five  in  all"  and  is  62  years  of 
age  or  over,  he  is  entitled  to  retirement  under  the  provisions  stated,  otherwise  not. 
File  27231-34,  J.  A.  G.,  April  25, 1911. 

<5.  Same-^Since  employment  in  connection  with  the  Marine  Corps  in  the  Philippines 
during  the  Philippine  campaign  in  a  civilian  capacity  did  not  operate  to  make  such 
employee  an  officer  or  enlisted  man  of  said  corps  (File  19245-43:1,  Sec.  Navy,  Mar.  8, 
1912)  the  department  held  that  a  pay  clerk,  having  been  so  employed,  should  not  be 
considered  as  having  been  in  the  military  service  in  connection  with  questions  of 
precedence,  or  retirement  for  length  of  service.  File  19245-43:3,  Sec.  Navy,  July  6, 
1915;  C.  M.  O.  27,  1915,  10. 


PAYMASTER'S  CLERKS,  MARINE  CORPS.  457 

7.  Status  of — "Formerly  clerks  to  Assistant  Paymasters  in  the  Marine  Co_rps  were  not 

regarded  as  officers  except  in  a  very  limited  "sense  and  within  the  purview  of  certain 
statutes,  although  their  status  is  now  assimilated  to  that  of  paymaster's  clerks  in  the 
Army,  and  they  are  entitled  to  retirement  as  are  paymaster's  clerks  in  the  Navy 
(File  27231-34).  File  19245-43,  J.  A.  G.,  Sept.  8, 1911,  p.  4.  See  also  J.  A.  G.  Memo!, 
Sept.  13, 1916. 

8.  Same — There  was  no  such  office  in  the  Marine  Corps  as  clerk  to  a  Paymaster  or  an 

Assistant  Paymaster  until  1910  (act  June  24,  1910,  36  Stat.  625).  File  19245-43, 
J.  A.  G.,  Mar.  7, 1912. 

9.  Warrant  officers— The  provisions  of  the  act  of  March  3, 1915  (38  Stat.  942),  in  regard  to 

warranting  pay  clerks  of  the  Navy,  Is  not  sufficiently  broad  to  include  clerks  to 
Assistant  Paymasters  of  the  Marine  Corps.  File  5460-81,  J.  A.  G.,  May  12, 1916. 

PAYMASTER  GENERAL  OF  THE  NAVY. 

1.  Death  gratuity— Decision  of   Paymaster  General  conclusive  as  to  payment.    See 

DEATH  GRATUITY,  21-23. 

2.  General  court-martlaI--Tried  on  the  charges  of  "Scandalous  conduct  tending  to 

the  destruction  of  good  morals"  and  "Culpable  inefficiency  in  the  performance  of 
duty."  C.  M.  O.  8, 1886. 

3.  Rank— And  commission  for— Act  of  June  24, 1910  (36  Stat.  605).    See  BUREAU  CHIEFS,  9. 

4.  Retired  Paymaster  General.— Issuance  of  commission  to.    See  File  22724-18,  J.  A.  G., 

Dec.  4, 1911. 

PEACE  CONFERENCE. 

1.  Retired  officer— Appointed  as  a  delegate  to  The  Hague  Conference.    See  RETIRED 
OFFICERS,  38. 

PEERS. 

1.  Accused— Was  convicted  by  a  "tribunal  composed  of  his  peers."    C.  M.  0. 17, 1915,  3. 

PENAL  CODE.    (Act  of  Feb.  16, 1909,  35  Stat.  1088.)    C.  M.  0. 12, 1911,  6. 

PENAL  STATUTES. 

1.  Act  of  August  5, 1882  (22  Stat.  28)— Is  not  a  penal  statute.    File  26260-392,  J.  A.  G., 

June  29, 1911,  p.  22. 

2.  Construction  of.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  88-92. 

PENALTY  ENVELOPES. 

1.  Foreign  countries— Mail  for.    See  File  3980-1185. 

2.  Naval  Militia.    See  NAVAL  MILITIA,  26. 

3.  Newfoundland.    See  NEWFOUNDLAND. 

"PENDING  QUESTIONS." 

1.  Attorney  General's  opinion— Requested  only  on.    See  ATTORNEY  GENERAL,  17. 

PENITENTIARY. 

1.  Officers — Sentence  involved  imprisonment  in  penitentiary.    C.  M.  O.  173,  1902-  15 

1908,  3;  31, 1913;  50, 1914. 

2.  Paymaster's  clerk— Sentence  involved  imprisonment  in  a  penitentiary.    C.  M.  O 

26, 1915. 

3.  Paymaster's  clerk,  U.  S.  M.  C. — Sentence  involving  confinement  in  penitentiarv 

C.  M.  0. 10, 1916. 

PENNSYLVANIA,  STATE  OF. 

1.  Governor  of —Made  a  requisition  on  naval  authorities  for  delivery  of  an  enlisted  man 

C.  M.  O.  35, 1915,  8. 

2.  Law  approved— April  22, 1794— Sunday  ball  playing  at  navy  yard.    C.  M.  O.  31,  1914, 

16.    See  also  SUNDAY  LAWS. 

PENSIONS. 

1.  Enlistment— Receipt  of  pension— Receipt  of  pension  is  no  bar  to  enlistment.    GC  M 

Rec.  23586;  File  26251-4685:1,  J.  A.  G.,  Apr.  18, 1911. 

2.  Enlistment  In  Naval  Mllltla— Effect  of.  on  pension.    See  NAVAL  MILITIA,  11,  28. 

3.  Jurisdiction— Recommended:  That  the  department  furnish  the  Commissioner  of  Pen- 

sions with  all  facts  of  record  bearing  upon  the  service  of  claimants,  leaving  the 
determination  of  doubtful  questions  and  the  drawing  of  inferences  from  such  facts 
to  the  jurisdiction  of  the  Pension  Bureau  which  is  claimed  by  the  Interior  Depart- 
ment to  be  exclusive.  The  law,  as  interpreted  by  the  Interior  Department,  having 
made  it  the  duty  of  the  Commissioner  of  Pensions  and  his  superiors  to  decide  all 


458  PENSIONS. 

questions  of  law  and  fact  which  may  be  involved  in  pension  claims,  there  is  no  reason 
why  this  department  should  be  called  upon  to  render  an  "opinion"  upon  such 
questions  for  the  information  or  guidance  of  another  department  of  the  Govern- 
ment, which  claims  that  its  jurisdiction  thereof  is  exclusive.  File  26510-1214. 
J.  A.  G.,  Sept.  2,  1915. 

4.  Same — Requests  for  information  concerning  pensions  should  be  addressed  to  the  Com- 

missioner of  Pensions,  under  whose  jurisdiction  lies  the  authority  of  granting  pensions 
to  claimants  and  deciding  questions  of  law  and  fact  relative  thereto.  Fife  26250- 
709:1.  Jan.  5,  1916.  See  also  File  26510-1247,  Sec.  Navy,  Feb.  8,  1916;  26250-1285, 
Sec.  Navy,  July  21, 1916;  C.  M.  O.  49,  1915,  26;  NAVAL  MILITIA,  27. 

5.  Naval  Militia— Member  of  Naval  Militia  dies  on  cruise  with  Regular  Navy.    See  NAVAL 

MILITIA,  27. 

6.  Same— Effect  on  pension  of  enlistment  in  Naval  Militia.  See  NAVAL  MILITIA,  11,  28. 

7.  Retired  officers— Whether  compensation  is  "pay"   or   "pension."  See    RETIRED 

OFFICERS,  16. 

8.  Right  to— No  pensioner  has  a  vested  legal  right  to  his  pension.    Pensions  are  the  boun- 

ties of  the  Government,  which  Congress  has  the  right  to  give,  withhold,  distribute, 
or  recall,  at  its  discretion.    (U.  S.  v.  Teller,  107  U.  S.  64,  68.)    15  J.  A.  G.  368,  June 
29,  1911. 
PERJURY. 

1 .  Charging  of —In  prosecutions  for  "  Perjury  "  committed  on  examination  before  a  naval 

general  court-martial,  or  for  the  subornation  thereof,  it  shall  be  sufficient  to  set  forth 
the  offense  charged  on  the  defendant,  without  setting  forth  the  authority  by  which 
the  court  was  held,  or  the  particular  matters  brought  before,  or  intended  to  be  brought 
before,  said  court  (R.  S.  1023).  "Perjury"  committed  by  persons  in  the  naval  serv- 
ice is  punishable  under  R.  S.  1624,  article  14,  clause  4,  ana  article  42. 

2.  Civilian  witness— Testifying  before  a  court  of  inquiry.    File  28478-25:7,  Jan.  4,  1916. 

See  also  section  175,  act  of  March  4, 1909,  Criminal  Code  (35  Stat.  1111);  section  12,  act 
of  February  16, 1909  (35  Stat.  622). 

3.  Court  of  inquiry— False  testimony  before  a  court  of  inquiry  under  oath  will  sustain 

a  charge  of  "Perjury."  C.  M.  O.  51.  1014,  9.  See  also  COURTS  OF  INQUIRY,  40.  See 
Ct.  Inq.  Rec.  6004  for  a  case  of  an  enlisted  man  who  made  conflicting  statements  and 
perjurea  himself  while  testifying  in  his  own  defense. 

4.  Definition— Perjury  is  defined  and  made  punishable  by  fine  and  imprisonment  bv  the 

Criminal  Code,  act  of  March  4,  1909,  section  125  (35  Stat.  1111),  as  follows:  "Who- 
ever, having  taken  an  oath  before  a  competent  tribunal,  officer,  or  person,  in  any 
case  in  which  a  law  of  the  United  States  authorizes  an  oath  to  be  administered,  that 
he  will  testify,  declare,  depose,  or  certify  truly,  or  that  any  written  testimony,  decla- 
ration, deposition,  or  certificate  by  him  subscribed  is  true,  shall  willfully  and  contrary 
to  such  oath  state  or  subscribe  any  material  matter  which  he  does  not  believe  to  be 
true,  is  guilty  of  perjury,  and  shall  be  fined  not  more  than  two  thousand  dollars  and 
imprisonment  not  more  than  five  years."  See  File  26251-12446,  J.  A.  G.,  Nov.  1, 191Q. 

5.  Enlisted  men— Charged  with.    C.  M.  O.  47,  1910,  5;  22,  1913,  5;  File   20251-12446; 

G.  C.  M.  Rec.  30146;  31992;  32762. 

6.  Evidence  necessary  to  prove.    File  26262-1569,  Sec.  Navy,  Dec.  18, 1912. 

7.  False  swearing — Since  the  passage  of  the  act  ol  March  4, 1909,  35  Stat.,  1111  (Criminal 

or  Penal  Code)  false  swearing  and  perjury  are  synonymous. 

8.  False  testimony— Under  oath  before  a  court  of  inquiry  will  sustain  a  charge  of "  Per- 

jury."   See  COURTS  OF  INQUIRY,  40. 

9.  Fraudulent  enlistment  Involved  In— Every  fraudulent  enlistment  includes  the 

offense  of  "Perjury,"  and  that  is  a  crime  which  has  always  been  visited  with  most 
serious  consequences  by  the  civil  laws,  being  recognized  as  malum  in  se  and  not 
merely  malum  prohibitum.  File  14535-1088,  J.  A.  G.,  Nov.  14,  1911.  See  also  DE- 
SERTERS, 13;  IMPEACHMENT.  9. 

10.  General  court-martial — False  testimony  before  a  naval  general  court-martial  consti- 

tutes "  Perjury."    C.  M.  O.  47. 1910,  5. 

11.  Intent— Specific  intent  required  in  "  Perjury."    C.  M.  O.  8, 1911,  5. 

12.  Officer— Charged  with.    (f.  M.  O.  50. 1914;  G.  C.  M.  Rec.  29422. 

13.  Reenlistment — Of  man  guilty  of "  Fraudulent  enlistment."    See  DESERTERS,  13. 

14.  "Scandalous  conduct  tending  to  the  destruction  of  good  morals"— An  en- 

listed man  was  charged  with  "Scandalous  conduct  tending  to  the  destruction  of 
good  morals"  instead  of  "Perjury,"  because  the  summary  court-martial  before  which 
he  is  alleged  to  have  testified  falsely,  on  its  face,  was  not  properly  convened.  The 


PERJURY.  459 

precept  and  action  were  signed  by  the  commanding  officer,  disciplinary  barracks, 
instead  of  commandant,  marine  barracks.  File  26251-7617.  See  also  File  26287-415; 
26287-1013;  26287-1183. 

15.  Specific  intent— Required  in  "  Perjury."    C.  M.  O.  8, 1911,  5. 

16.  Specifications — Necessary  allegations  in  specifications — In  this  case  the  specification 

of  the  charge  alleging  perjury  was  faulty,  in  that,  while  it  properly  alleged  that  the 
testimony  given  by  the  accused  was  false,  it  did  not  set  forth  what  was  the  truth  in 
regard  to  the  matter.  (U.  S.  v.  Pettus,  84  Fed.  Rep.  791, 794;  Bartlett  v.  U.  S.,  106 
Fed.  Rep.  884.)  C.  M.  O.  47, 1910, 5.  See  also  CHARGES  AND  SPECIFICATIONS,  92. 

17.  Statutory — Perjury  committed  by  persons  in  the  United  States  is  punishable  under 

R.  S.  1624,  article  14,  clause  4,  ana  article  42.  Perjury  is  defined  and  made  punish- 
able by  fine  and  imprisonment  by  the  Criminal  Code,  act  March  4, 1909,  section  125 
(35  Stat.  1111).  See  PEEJUKY,  4. 

PERJURY,  TENDING  TO  THE  DESTRUCTION  OF  GOOD  MORALS   AND 

DISCIPLINE— Enlisted  man— Charged  with.  C.  M.  O.  15,  1879.  This  offense  is 
now  charged  as  "  Perjury." 

PERMANENT  LEGISLATION. 

1.  "Hereafter"— As  indicated  by.    C.  M.  O.  12, 1915, 12.    See  also  "HEREAFTER." 

PERSISTENT  DELINQUENCY  IN  THE  RENDITION  OP  ACCOUNTS,  IN  VIO- 
LATION OF  THE  UNITED  STATES  NAVY  REGULATIONS. 

1.  Paymaster— Charged  with.    C.  M.  O.  92, 1903. 

PERSISTENT  DELINQUENCY  IN  THE  RENDITION  OF  ACCOUNTS,  IN  VIO- 
LATION OF  SECTION  12  OF  AN  ACT  OF  CONGRESS  ENTITLED  "AN 
ACT  MAKING  APPROPRIATIONS  FOR  THE  LEGISLATIVE,  EXECU- 
TIVE, AND  JUDICIAL  EXPENSES  OF  THE  GOVERNMENT  FOR  THE 
FISCAL  YEAR  ENDING  JUNE  30, 1895,  AND  FOR  OTHER  PURPOSES." 

1.  P.  A.  Paymaster— Charged  with.    C.  M.  O.  92, 1903. 

2.  Paymaster— Charged  with.    C.  M.  O.  33, 1896. 

PERSONAL  EFFECTS. 

1.  Disposition  of — Deceased  officers  and  men  of  the  naval  service.     See  DESERTERS, 

11, 12;  DISPOSITION  OF  EFFECTS. 

2.  Loss  of,  by  an  officer  by  reason  of  shipwreck.    See  File  26893-235:1,  J.  A.  G., 

Sept.  2, 1916. 

PERSONAL  RELATIONS. 

1.  Accused  (officer)— And  other  officers  of  the  ship.  C.  M.  O.  5,  1903.  See  also  CLEM- 
ENCY, 40. 

PETTY  OFFICERS. 

1.  Drunk— A  petty  officer  intrusted  with  important  duties,  who  periodically  renders 

himself  unfit  for  duty  through  alcoholism,  is  criminally  untrustworthy  and  worse 
than  useless  in  the  naval  service.  C.  M.  O.  88, 1896.  See  also  C.  M.  0. 1, 1914, 8. 

2.  Instructors— At  military  and  naval  institutions.    File  7657-361,  J.  A.  G.,  May  6, 1916. 

See  also  RETIRED  ENLISTED  MEN,  6, 10, 12. 

PHARMACISTS  AND  CHIEF  PHARMACISTS. 

1.  Command.    See  COMMAND,  21. 

2.  Pay  of.    See  File  26254-1898,  J.  A.  G.,  Nov.  8,  1915. 

3.  Total  number— Under  acts  of  June  17,  1898,  and  August  22,  1912.    See  File  27213-3, 

J.  A.  G.,  May  6, 1913.    See  also  act  of  August  29, 1916  (39  Stat.  572). 

PHILADELPHIA  NAVY  YARD. 

1.  Jurisdiction.    See  JURISDICTION,  105;  MURDER,  22-24. 

2.  Sunday  ball  playing— Pennsylvania  statute,  April  22, 1794.    See  SUNDAY  LAWS. 

PHILIPPINE  CAMPAIGN.    See  PHILIPPINE  CAMPAIGN  BADGES. 

PHILIPPINE  CAMPAIGN  BADGES. 

1.  Part  of  uniform— The  Philippine  campaign  badge  is  a  "part  of  the  uniform"  and 
should  not  be  issued  to  any  person  except  as  has  been,  or  now  is,  entitled  to  wear 
the  "uniform."  File  19245-43,  J.  A.  G.,  Sept.  8, 1911. 


460  PHILIPPINE    CAMPAIGN    BADGES. 

2.  Philippine  campaign  badge— A  paymaster's  clerk,  U.  S.  Navy,  requested  that  a 

Philippine  campaign  badge  be  issued  him.  He  was  appointed  under  date  of  August 
30, 1901.  an  "acting  paymaster's  clerk"  in  the  office  of  the  assistant  quartermaster. 
U.  S.  Marine  Corps,  at  Cavite,  P.  I.,  under  the  provisions  of  the  act  of  July  1, 1902 
(32  Stat.  687).  Held:  That  inasmuch  as  it  does  not  appear  from  the  facts  that  the 
applicant  was,  on  June  27, 1908,  the  date  of  Special  Order  No.  82  (par.  10c),authoriz- 
ing  the  issue  of  the  Philippine  campaign  badge,  in  the  Marine  Corps  in  any  capacity, 
nor  that  he  has  since  been  in  the  Marine  Corps,  he  is  not  entitled  to  the  badge  m 
question.  File  19245-43,  J.  A.  G.,  Sept.  8, 1911. 

3.  Revocation  of— Where  an  enlisted  man  of  the  Marine  Corps  was  discharged  as  "unfit 

for  the  service"  in  order  that  a  life  sentence  of  penal  servitude,  pursuant  to  convic- 
tion in  a  civil  court  on  the  charge  of  murder,  might  be  carried  into  effect,  an  award 
of  "the  China  and  Philippine  campaign  badges  for  his  services  in  those  campaigns 
should  be  revoked."  The  authority  to  revoke  under  such  circumstances  in  cases 
of  enlisted  men  of  the  Marine  Corps  may  be  exercised  by  the  Commandant  of  the 
Marine  Corps.  File  26519-3:2,  Sec.  Navy,  March  11.  1915.  explaining  file  26519-3, 
Sec.  Navy,  Dec.  1, 1914;  C.  M.  0. 12, 1915, 8. 

PHILIPPINE  ISLANDS. 

1.  Bilibid  prison— Confinement  of  prisoners  in.    File  26254-1842.    See  also  GUAM,  6. 

2.  Campaign.   See  PHILIPPINE  CAMPAIGN  BADGES. 

3.  Campaign  badges.   See  PHILIPPINE  CAMPAIGN  BADGES. 

4.  Cavite — Jurisdiction.    See  JURISDICTION,  11, 106. 

5.  Cebu,  P.  I. — Report  and  recommendation  relative  to  the  proposed  transfer  of  the 

naval  reservation  at  Cebu,  P.  I.,  to  the  War  Department.  13  J.  A.  G.  437,  April 
22,1905. 

6.  Cltizenshlp^By  act  of  July  1, 1902  (32  Stat.  691),  inhabitants  of  the  Philippines  who 

were  Spanish  subjects  on  April  11, 1899,  other  than  those  who  had  elected  to  preserve 
their  allegiance  to  Spain,  were  declared  "to  be  citizens  of  the  Philippine  Islands 
and  as  such  entitled  to  the  protection  of  the  United  States."  C.  M.  O.  49, 1915,  24. 
See  also  FILIPINOS.  3. 

7.  Civil  courts— Jurisdiction.    See  JURISDICTION.  11,  94-96, 106. 

8.  Foreign  country— Not  a  foreign  country  within  meaning  of  A.  G.  N.  30,  par.  1.    File 

26287-580. 

9.  General  Order  No.  121— With  regard  to  General  Order  No.  121,  September  17, 1914, 

it  is  directed  that  in  cases  arising  m  the  Philippine  Islands  the  Secretary  of  the  Navy 
be  communicated  with  in  advance  of  the  delivery  of  persons  to  the  civil  authorities 
only  when  the  circumstances  are  such  as,  in  the  judgment  ofthe  commanding  officer, 
make  such  action  desirable.  (See  File  26524-274.)  C.  M.  O.  9, 1916,  9-10. 

10.  Jurisdiction.    See  JURISDICTION,  11,  94-96, 106. 

11.  Naturalization— Of  Filipinos  by  enlistment  in  Navy— Act  of  June  30,  1914.    See 

FILIPINOS,  2 

12.  Same— Of  Filipinos  under  act  of  June  29, 1906,  sec.  30.    See  FILIPINOS,  3. 

13.  Olongapo — Jurisdiction.    See  JURISDICTION,  94.  95,  96. 

14.  Sangley  Point,  Manila  Bay,  P.  I.— Title  of  the  United  States  to.    See  File  7561-03, 

J.  A.  G.,  Sept.  19, 1903. 

15.  Subig  Bay  naval  reservation— Jurisdiction.    See  JURISDICTION,  94,  95,  96. 

16.  Treaty  with  Spain  ratified.    See  FILIPINOS,  3. 

PHOTOGRAPHS. 

1.  Checks— Photographic  copies  of  checks.    See  CHECKS,  C;  EVIDENCE,  DOCUMENTARY,  37. 

2.  Evidence.    See  PAY  RECEIPTS,  2. 

3.  Pay  receipts.   See  PAY  RECEIPTS,  2. 

PHOTOSTAT  COPIES. 

1.  Court  of  Inquiry  record.    File  28478-25:5,  J.  A.  G.,  Nov.  11, 1915. 

2.  Identification  records  of  enlisted  men.    See  G.  O.  No.  9,  War  Department,  March 

9, 1916. 

3.  General  court-martial  records — Furnished  on  call  of  civil  court  at  expense  of 

interested  party.    See  File  12475-64:2,  Sec.  Navy,  Aug.  20, 1915. 

PHYSICAL  CONDITION  OF  ACCUSED.    See  CLEMENCY,  41, 42;  COURT,  133. 


POLICEMAN.  461 

PIRATES.    See  Q.  O.  58,  June  20, 1865. 

PLACE  OF  OFFENSE.    See  CHARGES  AND  SPECIFICATIONS,  39,  82, 92. 

PLEA  IN  BAR. 

1.  Accumulation  of  offenses.    See  ACCUMULATION  OF  OFFENSES,  2. 

2.  Court— Criticized  for  sustaining.    See  CRITICISM  OF  COURT-MARTIAL,  48. 

3.  Jurisdiction  of  court— Offense  committed  while  under  Army  jurisdiction  and  accused: 

tried  by  naval  court-martial.    See  MARINES  SERVING  WITH  ARMY,  7. 

4.  Same — Regular  Navy  on  board  Naval  Militia  ship.    See  NAVAL  MILITIA,  34,  39^1. 

5.  Officer — Severely  criticized  for  shielding  himself  behind  a  plea  in  bar  of  trial.    See 

OFFICERS,  88. 

6.  Public  reprimand— The  accused  pleaded  in  bar  of  trial  on  the  ground  of  former 

jeopardy ,_  he  having  received  a  letter  of  reprimand  from  the  department  which 
ended  with  these  words,  "You  will  acknowledge  receipt  of  this  communication- 
a  copy  of  which  will  be  placed  with  your  record  and  the  mcident  will  be  considered 
closed."  The  court  overruled  the  plea  and  found  the  accused  guilty.  The  depart- 
ment approved.  The  case  was  sent  to  the  Attorney  General,  who  upheld  the  action 
of  the  department.  G.  C.  M.  Rec.  21478a,  p.  5;  G.  C.  M.  Rec.  21478.  See  also  Op. 
Atty.  Gen.,  June  15, 1906  (25  Op.  Atty.  Gen.  623);  JEOPARDY.  FORMER,  30. 

7.  Restored  to  duty— As  a  basis  of.    See  PARDONS,  47.    See  oho  File  1493-04. 

8.  Reviewing  Authority — Court  cannot  be  ordered  to  try  charges.    C.  M.  O.  9,  1893; 

50, 1893;  4, 1914, 11;  REVIEWING  AUTHORITY,  15;  REVISION,  24;  overruling  C.  M.  O. 
16, 1911,  3.  See  also  OFFICERS,  88. 

9.  Service  records — No  entry  should  be  made  on  service  records,  of  a  summary  court- 

martial,  if  a  plea  in  bar  of  trial  is  held  valid.    File  26287-1677,  Aug.  22, 1913. 
10.  Statute  of  limitations.    See  STATUTE  OF  LIMITATIONS. 

PLEDGES  AND  PROMISES. 

1.  Debts.    See  DEBTS,  21, 22. 

2.  Drunkenness — A  commissioned  officer  of  the  Navy,  having  broken  his  voluntarily 

signed  pledge  to  abstain  from  use  of  intoxicants,  except  when  prescribed  as  a  medicine, 
for  a  period  of  five  years,  was  tried  by  general  court-martial  under  "Conduct  unbe- 
coming an  officer  and  a  gentleman."  G.  C.  M.  Rec.  31509;  C.  M.  O.  1.  1916. 

3.  Same — A  warrant  machinist  having  been  found  guilty  by  a  general  court-martial  of 

"Drunkenness,"  and  "Culpable  inefficiency  in  the  performance  of  duty,"  clemency 
was  extended  because  of  the  unanimous  recommendation  of  the  members  of  the 
court  and  the  fact  that  "he  signed  a  pledge  to  abstain  from  the  use  of  intoxicants." 
C.  M.  O.  34, 1908.  See  also  C.  M.  O.  9,  1879;  31, 1882. 

4.  Same — When  an  officer  pledges  himself  to  abstain  from  the  use  of  intoxicants,  either  to 

escape  a  well-meritea  punishment,  or  to  attempt  to  restore  the  confidence  of  his 

' -•*--  "*•'     *  J- 


uuc — a.  u\K»L3v»aui  woo  mc\*  n/i  viuiatuiK  i"^  j«cdge  to  abstain  from  intoxicants,  under 
the  charge  of  "scandalous  conduct  tending  to  the  destruction  of  good  morals.' '  C.  M .  O . 
118, 1905. 

6.  Same — A  naval  officer  took  the  foUowing  pledge:  "I  hereby  pledge  myself  to  abstain 

from  the  use  of  all  intoxicating  liquors  during  the  time  I  am  attached  to  this  vessel." 
Having  violated  said  pledge  he  was  tried  by  general  court-martial  for  "Conduct 
unbecoming  an  officer  of  the  Navy."  C.  M.  0. 36, 1898, 1. 

7.  Same— A  pledge  to  abstain  from  intoxicants  and  a  conditional  resignation  presented 

at  same  time.    File  26251-1989,  Sec.  Navy,  May  14, 1909.    See  also  RESIGNATIONS,  5. 

POLICE  DUTIES.    See  also  EXTRA  POLICE  DUTY. 
1.  Defined.    See  File  8254-03,  J.  A.  G.,  Oct. 20,  1903;  5879-00;  5471-97,  Oct.  29,  1897;  106-00. 

POLICE  OFFICER. 

1.  Witness,  as.    C.  M.  O.  7, 1911, 10.    See  also  EVIDENCE,  34. 

POLICEMAN. 

1.  Enlisted   man — Assaulted    a   policeman  and  was  tried   by    general   court-martial 
C.  M.  O.  45, 1883. 


462  POST   TRADERS. 

POLL  TAXES. 

1.  "Honorable  discharge"— Department  is  aware  of  no  law  by  which  a  person  is  exempt 

from  the  payment  of  "road  poll  tax  and  school  poll  tax"  by  reason  of  having  served 
in,  and  received  an  honorable  discharge  from  the  Navy;  nor  is  the  department  aware 
of  any  law  which  would  exempt  the  wife  of  such  a  person  from  payment  of  "school 
poll  tax."  File  9212-76,  J.  A.  G.,  June  13, 1916.  See  also  File  9212-75,  J.  A.  G.,  June 
5, 1916. 

2.  Liability  of  persons  to  naval  service— The  case  of  Ex  parte  White  (228  Fed.  Rep.  88), 

decided  November  30, 1915,  holds  in  general  that  enlisted  men  of  the  Army  who  have 
parental  domiciles  beyond  the  State  of  New  Hampshire  may  not  be  liable  to  pay 
poll  taxes  required  by  a  State  law,  even  though  such  men  establish  a  temporary 
residence  in  New  Hampshire  outside  the  Army  post  at  which  they  are  doing  duty. 

The  above  decision  is  of  importance  to  the  Navy  Department  as  several  enlisted 
men  of  the  naval  service  were  being  prosecuted  for  nonpayment  of  poll  taxes  and  the 
Department  of  Justice  arranged  with  the  State  authorities  of  Maine  and  New  Hamp- 
shire to  suspend  further  action  until  this  point  was  settled  by  the  above-mentioned 
case.  (See  File  9212-47:14.)  C.  M.  O.  49,  1915,  28.  See  also  File  9386-14,  J.  A.  G., 
Nov.  5, 1915;  9212-22,  Feb.  21, 1912;  26252-330:a  and  b. 


4.  Same — An  enlisted  man  was  advised  by  the  department  to  refuse  payment  of  such 

taxes  unless  and  until  the  court  decides  that  the  collection  thereof  is  lawful;  and  to 
notify  the  department  immediately  by  wire  should  any  attempt  be  made  to  arrest 
him.  File  9212-47:17,  Sec.  Navy,  May  4, 1916. 

5.  Purchase,  discharge  by — The  department  is  aware  of  no  law  by  which  a  person  m 

the  State  of  Vermont  is  exempt  from  the  payment  of  poll  tax  because  of  service  in 
the  Navy  terminated  "by  a  purchase  discharge. "  File  9212-80,  J.  A.  G.,  Aug.  1, 1916. 

6.  Road  poll  tax.   See  POLL  TAXES,  1. 

7.  School  poll  tax.   See  POLL  TAXES,  1. 

"POOL  FUND." 

1.  Receiving  ship,  Norfolk,  Va.    See  File  3773-148,  J.  A.  G.,  Dec.  27,  1912. 

PORTO  RICO. 

1.  Ceded  to  United  States— By  article  2  of  the  treaty  between  the  United  States  and 

Spain,  proclaimed  April  11,  1899  (30  Stat.  1755),  Spain  ceded  to  the  United  States 
the  island  of  Porto  Rico.  By  article  8  of  the  same  treaty  (30  Stat.  1758)  Spain  ceded 
In  Porto  Rico  all  the  buildings,  wharves,  barracks,  forts,  structures,  public  nighways, 
and  other  immovable  property  which,  in  conformity  with  law,  belong  to  the  public 
domain,  and  as  such  belong  to  the  Crown  of  Spain.  File  26524-32,  J.  A.  G.,  July,  1911. 

2.  Citizenship.    See  CITIZENSHIP,  31,  32. 

3.  Jurisdiction.    See  JURISDICTION,  108;  MURDER,  25. 

4.  Marine  Corps— Citizen  of  Porto  Rico  not  eligible  for  appointment  as  second  lieutenant. 

See  CITIZENSHIP,  31. 

5.  Naval  reservation— Interpretation  of  the  order  of  the  President  of  June  30, 1903,  modi- 

fy ing  proclamation  of  June  20,  1903,  reserving  lands  in  Porto  Rico.  File  7142-03, 
J.  A.  G.,  Sept.  21,  1903. 

6.  Navy  yard— Employees  at  Navy  yards.    See  CITIZENSHIP,  32. 

7.  R.  8. 1860— Section  I860.  Revised  Statutes,  as  amended,  applies  to  Porto  Rico,  which 

has  been  held  to  be  a  "Territory"  under  the  terms  of  this  section.  File  1831-8,  Sec. 
Navy,  Aug.  30, 1907;  6381-1,  Sec.  Navy,  Aug.  30, 1907;  11  Comp.  Dec.  336,  339;  9736- 
18,  J.  A.  G.,  June  25, 1910,  p.  16. 

POST-GRADUATE  COURSE  AT  THE  NAVAL  ACADEMY.    See  MIDSHIPMEN,  65. 
POST  MORTEM.    See  AUTOPSY. 

POST  TRADERS. 

1.  Abolished.    See  File  3980-741,  J.  A.  G.,  Dec.  3, 1912. 

2.  Indebtedness  to.    See  File  16318-2.  J.  A.  G.,  Jan.  15, 1910. 

3.  Permitted.    See  letter  to  Colonel  Commandant,  Marine  Corps,  Sec.  Navy,  March  16, 

1883. 


PRECEDENCE.  463 

POSTPONEMENT.    See  also   ARMY,    13;   CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17; 
COUNSEL,  20;  COURT.  134;  TRIALS,  7. 

I.  Court — Should  grant  if  accused  desires  postponement  for  reasonable  time  to  secure 

witnesses.    See  COURT,  134. 

PRECAUTIONARY  ORDERS  IN  TIME  OF  DANGER.    See  COLLISION,  17, 19. 

PRECEDENCE.    See  also  COMMAND;  COMMISSIONS;  R-1009. 

1.  Army  and  Navy  officers.    See  PRECEDENCE,  16, 17. 

2.  Boards.    See  PRECEDENCE,  10. 

3.  Change  of  precedence  requested—  Held,  That  as  no  mistake  was  made  in  the  original 

determination  of  a  certain  officer's  date  of  precedence  and  as  his  precedence  since  his 
appointment  has  not  been  a  Tooted  by  change  in  law,  etc.,  his  request  for  change  in 
precedence  should  be  disapproved.  File  11130-9,  J.  A.  G.,  July  18,  1910. 

4.  Chiefs  of  Bureaus.    See  File  4649-02,  July  17,  1902;  5050-99,  July  IS,  1S99;  6417,  Feb. 

18,  1907. 

5.  Command— Succession  to  during  temporary  absence  of  commandant  of  a  navy  yard. 

See  COMMAND,  14. 

6.  Commanding  officer — Has  precedence  over  all  under  his  command.    See  COMMAND- 

ING OFFICERS,  30. 

7.  Commissions  of  same  date.    See  COMMISSIONS,  28;  PRECEDENCE,  17,  18;  MIDSHIP- 

MEN, 06. 

8.  Constructive  service.    See  CONSTRUCTIVE  SERVICE. 

9.  Courts  of  inquiry.    See  PRECEDENCE,  10. 

10.  Courts-martial— In  processions  on  shore,  OD  general  courts-martial,  summary  courts- 
martial,  courts  of  inquiry,  boards  of  survey,  and  all  other  boards,  line  and  staif 
officers  shall  take  precedence  according  to  rank.  See  R .  8.  1489. 

II .  Ensigns  and  second  lieutenants  of  Marine  Corps — Appointed  from  graduates  of 

Naval  Academy,  same  date  of  commission  but  no  prior  commissioned  service.  See 
MIDSHIPMEN,  66. 

12.  Febiger  Board.    See  File  5258-04;  5519-97;  6104-97;  Navy  Register,  Ian.,  1&S2,  and 

Jan.,  1885. 

13.  Line  officers— By  law,  regulation,  and  established  customs,  take  precedence  accord- 

ing to  rank  and  date  of  commission,  and  not  by  length  of  service.  File  13559-17:1, 
Sec.  Navy,  June  19,  1916.  See  also  File  3809-640:2,  J.  A.  G.,  Jane  12, 1916;  26253-460:1, 
J.  A.  G.,  May  13, 1916;  WARRANT  OFFICERS,  23. 

14.  Marine  Corps — Inasmuch  as  officers  of  the  Marine  Corps  take  rank  with  the  Navy 

according  to  the  date  of  commission,  the  precedence  list  having  nothing  to  do  with 
the  Marine  Corps,  the  officer  whose  commission  bears  the  older  date  takes  rank.  File 
5519-97,  Sec.  Navy,  Nov.  1,  1897. 

15.  Marine  and  Army  officers.   See  PRECEDENCE,  16, 17. 

16.  Marine  officers  and  officers  of  Navy—  Same  rank — There  is  no  express  provision  of 

law  which  fixes  the  relative  rank  and  precedence  of  officers  of  the  Marine  Corps  and 
officers  of  the  line  of  the  Navy. 

By  an  onwritten  law  of  the  Army  and  Navy ,  officers  of  the  Army  and  officers  of  the 
Navy  take  relative  rank,  as  respects  the  two  classes,  according 'to  their  respective 
grades;  and  if  of  similar  grade,  then  according  to  dates  of  commission. 

Officers  of  the  Marine  Corps,  who  are  "in  relation  to  rank  on  the  same  footing  as 
officers  of  similar  grades  in  the  Army,"  take  rank  and  precedence  relatively  to  line 
officers  in  the  Navy  according  to  grade;  and  if  of  similar  grade,  then  according  to 
dates  of  commission. 

There  is  no  law  making  any  distinction  as  to  relative  rank  and  precedence  between 
the  officers  of  the  Marine  Corps  who  are,  and  those  who  are  not,  graduates  of  ihc 
United  States  Naval  Academv,  either  as  respects  themselves  or  officers  of  the  line 
of  the  Navy.  (25  Op.  Atty.  Gen.  517;  26  Op.  Atty.  Gen.  1C;  29  On.  Atty.  Gen.  264.) 
File  11130-27,  J.  A.  G.,  Aug.  20,  1915.  See  in  this  connection  File  3980-575:17,  J.  A.  G., 
Aug.  19,  1911,  p.  10. 

17.  Marine  officers  and  officers  of  Navy  when  of  same  rank,  same  dates  of  com- 

mission, and  prior  commissioned  service — With  reference  to  this  skuation  in 
the  Army  it  is  provided  by  law  (sec.  1219,  R.  S.)  that "  in  fixing  relative  rank  between 

the  time  which 
,  whether 
And  in  computing 
such  time,  no  distinction  shall  be  made  between  service  as  a  commissioned  officer 

50756°— 17 30 


464  PRECEDENCE. 

in  the  Regular  Army  and  service  since  the  19th  day  of  April,  1801,  in  the  Volunteer 
forces,  whether  under  appointment  or  commission  from  the  President  or  from  the 
governor  of  a  State." 

There  is  no  similar  statutory  provision  with  reference  to  officers  of  the  Navy,  but 
the  Navy  Regulations,  1913,  R-1010  (2)  provide:  "In  fixing  the  relative  rank  of  officers 
of  tho  Army,  officers  of  the  Navy,  and  officers  of  the  Marine  Corps,  of  the  same  tirade 
and  date  of  appointment  and  commission,  the  time  which  each  may  have  actually 


p.  10;  COMMISSIONS,  28. 

18.  Marine  officers  and  officers  of  the  Navy,  same  rank,  same  date  of  commis- 

sion, but  no  prior  commissioned  service.    See  MIDSHIPMEN,  66. 

19.  Midshipmen— Appointed  to  Marine  Corps.    See  MIDSHIPMEN,  66. 

20.  Same — Midshipmen  are  graded  according  to  proficiency  in  studies  and  not  by  dates 

of  entry  into  the  Academy  (sec.  1483,  R.  S.).  Therefore  a  midshipman  who  gradu- 
ated at  the  head  of  his  class  and  who  entered  in  September  would  take  precedence  over 
a  midshipman  of  the  same  class  standing  below  him  in  studies,  but  who  entered  the 
Academy  in  May  preceding  September. 

The  departmental  construction  of  laws  relating  to  the  relative  precedence  of  line 
and  staff  officers  should  not  be  changed. 

A  staff  officer  would  take  precedence  with  but  after  the  midshipman  entering  the 
service  six  years  before  the  staff  officer. 

Questions  of  precedence  are  determined  by  the  law  and  not  by  the  individual  desire 
of  the  person  affected.  File  11130-2b,  J.  A.  G.,  July  31, 1909.  See  also  COMMISSIONS, 
28.  See  also  File  11130-37,  J.  A.  G.,  Jan.,  1917,  for  precedence  of  midshipmen  as 
affected  by  Act  of  Mar.  4, 1913  (37  Stat.  891). 

21.  Navy  yard— Succession  to  command  in  temporary  absence  of  commandant.    See 

COMMAND,  14. 

22.  Precedence  lisl^-Has  nothing  to  do  with  Marine  Corps.    See  PRECEDENCE,  14. 

23.  Processions  on  shore.    See  PRECEDENCE,  10. 

24.  Professor  of  mathematics.    See  PROFESSORS  OF  MATHEMATICS. 

25.  Rear  admirals — Divided  into  senior  and  lower  nines  for  pay,  not  precedence.    See 

REAR  ADMIRALS,  3. 

26.  Retired  officers — With  those  on  the  active  list.    File  4991-1,  Apr.  8,  1907.    See  also 

COMMAND.  14. 

27.  Same— Marine  Corps.    See  COMMISSIONS,  17, 18. 

28.  Secondary  to  devotion  to  public  interests— "Whenever  men  are  associated  in  any 

calling  or  undertaking  where  the  reward  attainable  for  efficiency  and  faithful  per- 
formance of  duty  is  advancement  to  higher  position  according  to  length  of  service, 
those  so  associated  naturally  regard  the  matter  of  precedence  with  great  jealousy. 
So  it  is  with  the  officers  of  the  naval  and  military  forces  of  the  Government.  To 
them  precedence  is  advancement.  It  is  the  very  essence  of  the  reward  for  which 
they  constantly  strive  and  to  the  attainment  of  which  they  must  subordinate  all 
other  personal  aims.  First  with  them  always  is  unselfish  and  unqualified  devotion 
to  the  public  interests  they  are  pledged  to  serve.  Then  foremost  among  secondary 
considerations  comes  the  reward  promised  for  duty  done."  13  J.  A.  G.  471. 

29.  Secretary  of  the  Navy,  absence  of— In  the  absence  of  the  Secretary  of  the  Navy,  the 

Assistant  Secretary  of  the  Navy  [and  the  Chief  of  Naval  Operation]  the  duties  of 
the  Secretary  of  the  Navy,  by  direction  of  the  President,  are  to  be  performed  by  the 
following  designated  chiefs  of  bureaus,  in  the  order  named:  The  Chief  of  the  Bureau 
of  Navigation;  in  his  absence,  the  Chief  of  the  Bureau  of  Ordnance;  and  in  the  absence 
of  those  two,  the  Chief  of  the  Bureau  of  Steam  Engineering.  File  12753-9,  July  29, 
1912. 

30.  Staff  officers— Marine  officers  take  rank  with  line  officers  of  the  Navy  according  to  the 

dates  of  their  commissions  while  staff  officers  of  the  Navy  take  rank  with  line  offi- 
cers in  accordance  with  their  dates  of  precedence.  File  6519-97,  Sec.  Navy,  Nov.  1. 
1897.  But  see  Act  of  Mar.  4, 1913  (37  Stat.  891),  and  R-1009  (2),  quoted  in  File 
11130-37,  J.  A.  G.,  Jan.,  1917;  pp.  3,  4. 

31.  Succession  to  command— Navy  yards.    See  COMMAND,  14. 

PRECEDENTS.    See  also  RES  JUDICATA;  STARE  DECISIS. 

1.  Care — Should  be  taken  not  to  make  erroneous  precedents.    C.  M.  O.  43,  1906,  3.    See 
also  C.  M.  O.  88, 1895, 1;  104, 1807,  5-6;  89, 1897;  7, 1914, 15. 


PRECEDENTS.  465 

2.  Conclusive— Where   department's  precedents   establish   a   uniform   practice.    See 

STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  23-26. 

3.  Customs  of  the  service — When  they  may  be  taken  as  precedents.    See  CUSTOMS  OF 

THE  SERVICE,  4. 

4.  Department,  of— The  decisions  and  instructions  of  the  Navy  Department  upon 

such  points  as  this  are  in  such  easily  accessible  form  in  court-martial  orders  that  ignor- 
ance of  or  inattention  to  them  are  inexcusable.  C.  M.  O.  42, 1915,  8. 

5.  Disapproval— To  emphasize  necessity  of  naval  courts-martial  conforming  to  correct 

precedents  and  procedure.    C.  M.  O.  49, 1915, 11. 

6.  Sentence  disapproved— To  avoid  creation  of  false  precedents.    C.  M.  O.  8, 1915.  3. 

7.  Same — Better  that  the  accused  should  escape  punishment  than  that  a  manifestly  im- 

proper sentence  should  receive  the  approval  of  the  department  and  thus  become  a 
precedent  for  the  guidance  of  naval  courts-martial  in  future  cases.  See  CRITICISM  OF 
COURTS-MARTIAL,  35.  See  also  SECRETARY  OF  THE  NAVY,  33. 

PRECEPTS. 

1.  Accused — Should  be  present  when  precept  is  read.    Ste  ACCUSED,  1-9. 

2.  Adjournment  of  court-martial — Court  may  be  granted  authority  by  convening 

authority  to  adjourn  over  holidays  in  precept.  See  ADJOURNMENT  OF  COURTS- 
MARTIAL,  1. 

3.  Addressed— Precept  should  be  addressed  to  president  of  general  court-martial.    See 

PRECEPTS,  17. 

4.  Amendments  to— Precept  not  to  be  amended  by  the  judge  advocate  of  court.   C.  M.  O. 

216,1901,2. 

5.  Board  of  Medical  Examiners.    See  BOARDS  OF  MEDICAL  EXAMINERS,  5. 

6.  Certified  copy— The  certified  copies  of  the  precepts  in  many  general  court-martial 

cases  have  been  prefixed  instead  of  appended  to  the  records.  (Navy  Regulations, 
1913,  R-768;  Forms  of  Procedure,  1910,  pp.  18,  55;  C.  M.  O.  16,  1912,  p.  3.)  C.  M.  O. 
42, 1914,  4.  See  also  C.  M.  0. 1, 1894,  3;  3, 1894;  62, 1894;  12, 1895;  53, 1895;  2;  57, 1897; 
58, 1897;  54, 1898;  17, 1910, 12;  36, 1914,  6;  41, 1914,  5.  (C.  M.  0. 10, 1897,  3,  stating  that 
the  precept  should  be  "prefixed"  is  overruled.  See  also  in  this  connection  G.  O. 
114,  Mar.  22, 1869.) 

7.  Challenge — An  error  in  statement  of  the  rank,  title,  or  relative  position  of  any  member 

in  the  precept  will  not  affect  the  validity  of  the  order.    See  CHALLENGES,  15. 

8.  Commander  In  chief— May  not  change  precepts  convening  Boards  of  Medical 

Examiners  and  Naval  Examining  Boards.  See  BOARDS  OF  MEDICAL  EXAMINERS,  5. 
NAVAL  EXAMINING  BOARDS,  4. 

9.  Discussed.    G.  C.  M.  Rec.  22761;  22810;  22924;  22925;  23003;  23095;  23119;  23218;  23431. 

10.  Error  In— Rank,  title,  or  relative  position  of  a  member.    See  CHALLENGES,  15;  PRE- 

CEPTS, 7. 

11.  Examining  Boards,  Naval— Signed  by  Secretary  of  the  Navy.    See  BOARDS  OF 

MEDICAL  EXAMINERS,  5;  NAVAL  EXAMINING  BOARDS,  4. 

12.  Judge  advocate — Precept  is  sufficient  authority  for  judge  advocate  to  act  as  such. 

C.  M.  O.  38, 1895,  2;  53, 1895,  2. 

13.  Same — The  copy  of  the  precept  appended  to  the  record  shall  be  certified  as  true  by 

the  judge  advocate.    C.  M.  0. 17, 1910, 12;  21, 1910, 16;  27, 1913, 12. 

14.  Marking  of.    See  CHARGES  AND  SPECIFICATIONS,  59.    See  also  C.  M.  O.  27,  1913,  12, 

where  marking  was  in  error. 

15.  Members  and  judge  advocates  of  general  courts-martial— The  precept  is  the 

order  of  appointment  of  the  members  and  judge  advocate  of  a  general  court-martial, 
and  is  the  only  authority  for  them  to  act  as  such  during  the  trial.  The  orders  to  officers 
issued  by  the  Bureau  of  Navigation,  the  Major  General  Commandant  of  the  Marine 
Corps,  or  other  authority,  as  the  case  may  be,  directing  them  to  report  to  the  president 
of  the  court  for  duty  are  in  no  sense  appointments  to  the  court  and  are  not  essential 
in  order  that  the  officer  in  question  may  properly  sit  as  a  member  or  judge  advocate 
of  the  court.  C.  M.  O.  28,  1910,  5;  33,  1912,  3.  See  also  C.  M.  O.  155,  1897;  74,  1899; 
103,  1899;  26, 1910, 8. 

16.  Same— Precept  and  modifications  are  alone  capable  of  making  changes  and  substitu- 

tions in  court.    C.  M.  O.  68, 1898. 

17.  Modifications  of— The  precept  and  all  modifications  should  be  addressed  to  the 

president  of  the  general  court-martial  and  should  not  be  confused  with  the  orders 
to  perform  the  duty.  C.  M.  O.  26, 1910,  8. 

18.  Same— Must  be  read  in  court.    C.  M.  0. 103, 1899;  35, 1900. 


466  PRECEPTS. 

19.  Naval  examining  boards— Signed  by  Secretary  of  the  Navy.    See  BOARDS  OF  MEDI- 

CAL EXAMINERS,  5;  NAVAL  EXAMINING  BOARDS,  4. 

20.  New  precept.    See  C.  M.  O.  4,  1914,  4. 

21.  Orders— The  precept  orders  members  and  judge  advocates  to  duty  on  courts-martial 

C.  M.  O.  30, 1910,  7. 

22.  Orders  to  perform  duty — As  members  and  judge  advocates  should  not  be  confused 

with  precepts  and  modifications  thereto.    See  PRECEPTS,  15. 

23.  Original  precept — The  original  precept  should  never  be  appended,  a  certified  copy 

being  all  that  is  required.  The  original  precept  shall  be  returned  to  the  convening 
authority  when  the  court  is  dissolved,  and  shall  in  all  cases  be  filed  in  the  Navy 
Department.  (Navy  Regulations,  1913,  R-768;  Forms  of  Procedure,  1910,  p.  18; 
C.  M.  O.  31, 1910,  p.  3.)  C.  M.  O.  42,  1914,  4.  (G.  O.  114,  Mar.  22,  1869,  overruled.) 

24.  Promotion  of  members  or  judge  advocate — In  the  precept  a  member's  rank  was 

"captain,"  while  therecord  of  proceed  ings  disclosed  him  to  be  a  "commodore,  retired." 
A  modification  of  the  precept  should  have  been  issued  and  a  certified  copy  appended 
to  the  record  ordering  this  officer  as  a  "commodore,  retired"  as  a  member.  This 
irregularity  did  not  invalidate.  C.  M.  O.  23, 1910, 5.  See  also  RETIRED  OFFICERS,  23. 

25.  Beading  of  precept— It  is  incorrect  to  record  that  the  "judge  advocate  read  aloud 

the  precept."    See  ALOUD,  1. 

26.  Record  of  proceedings— A  certified  copy  of  the  precept  convening  a  general  court- 

martial  must  be  appended  to  the  record  of  proceedings.    See  PRECEPTS,  6, 23. 

27.  Retired  officers.    See  PRECEPTS,  24. 

28.  Substitution  of  members.    See  PRECEPTS,  15, 16. 

29.  Summary  courts-martial.    See  SUMMARY  COURTS-MARTIAL,  61. 

30.  Telegrams — Appointing  members.    C.  M.  O.  56, 1897,  2. 

PREJUDICE.    See  CHALLENGES,  13.     . 

PRESENTING  TO  A  PERSON  IX  THE  CIVIL  SERVICE  FOR  PAYMENT  A 
CLAIM  AGAINST  THE  UNITED  STATES,  KNOWING  SAID  CLAIM 
TO  BE  FRAUDULENT  IN  VIOLATION  OF  CLAUSE  1  OF  ARTICLE  14, 

A.  G.  N. 
1.  Assistant  surgeon— Charged  with.    C.  M.  0. 15, 1908. 

PRESENTS.    See  also  SUPERIOR  OFFICERS. 

1.  Superior  officer  shall  not  accept  presents,  etc.,  from  Inferior—  Navy  Regulations, 
1913,  R-1520  (2)  provides  in  part  that  no  officer  shall  "receive  any  gift  or  present 
offered  or  presented  to  them  as  a  contribution  from  persons  in  Government  employ 
receiving  a  less  salary  than  themselves."  (R.  S.  1748.)  Paragraph  3  of  same  article's 
provide  "No  officer  or  other  person  under  the  Navy  Department  shall  solicit  sub- 
scriptions for  the  purpose  of  making  a  gift  to  a  member  of  the  immediate  family  of  an 
officer  of  the  naval  service."  See  G.  C.  M.  Rec.  30485,  p.  531. 

PRESIDENT  OF  THE  UNITED  STATES. 

1.  Appeals  to,  by  naval  officers.    See  APPEALS,  10, 11, 12, 13. 

2.  Civil  authorities— It  rests  entirely  in  the  discretion  of  the  President  in  what  cases  and 

upon  what  conditions  persons  in  the  naval  service  shall  be  delivered  to  the  civil 
authorities.  See  CIVIL  AUTHORITIES,  19. 

3.  Commander  In  chief— Congress  may  provide  for  the  organization  of  naval  forces, 

active  or  reserve,  but  it  can  not  require  the  President  to  order  such  naval  forces  to 
perform  specified  duty,  or  in  fact  any  duty  at  all.  The  orders  to  be  given  to  the  land 
and  naval  forces  of  the  United  States  are  the  function  of  command  which  belongs  to 
the  President  as  the  constitutional  commander  in  chief.  (See  Swaim  v.  United 
States,  28Ct.  Cls.  221, affirmed,  165  U.  S.553;ExparteMilligan,  4  Wall.  139; 9 Op.  Atty. 
Gen.  463.)  File  28550-3,  J.  A.  G.,  May  12, 1915. 

4.  Same — The  President,  as  Commander  in  Chief,  has  authority  to  order  a  naval  detach- 

ment to  Raleigh,  N.  C.,  to  participate  in  ceremonies  attending  unveiling  of  a  monu- 
ment to  a  late  ensign.  File  3679-2.  See  also  BANDS,  1. 

5.  Criticism  of  the  President  by  a  naval  officer— Tried  by  general  court-martial.    See 

OFFICERS,  89. 

"A  Court  of  Inquiry  begun  and  held  at  the  Navy  Yard  at  Brooklyn  in  the  State 
of  New  York  on  Thursday  the  tenth  day  of  May,  One  Thousand  Eight  Hundred 
Twenty  One  *  *  *  for  the  purpose  of  investigating  the  conduct  of  *  *  *  ' 
consisting  of  making  to  a  British  consul  at  Pernambuco  "certain  declarations  and 
representations,  respecting  the  President  and  Government  of  the  United  States, 
highly  improper,  and  unbecoming  an  ollicer  of  the  Navy."  Ct.  Inq.  Rec.  377  (1821). 


PRESIDENT    OF   THE    UNITED    STATES.  467 

6.  Commuting  sentences.    See  COMMUTING  SENTENCES,  4;  DISMISSAL,  18;  PRESIDENT 

OF  THE  UNITED  STATES,  8. 

7.  Dismissal— Phraseology  of  a  dismissal.    C.  M.  0. 19, 1909. 

8.  Dismissal  mitigated — The  President  mitigated  a  sentence  of  dismissal  to  loss  of 

numbers  on  the  theory  that  latter  is  included  in  former.    See  DISMISSAL,  18. 

9.  Same.    See  C.  M.  O.  9, 1879,  2;  5, 1882,  3;  21, 1882,  3;  51  1882,  3. 

10.  Same — "  To  be  reduced  in  rank  so  that  his  name  shall  be  placed  at  the  foot  of  lieu- 

tenant commanders  in  the  Navy."    C.  M.  O.  50, 1898,  2. 

11.  Same — In  case  of  midshipmen.    See  PARDONS,  5,  21. 

12.  Disrespect — Naval  officer  spoke  disrespectfully  of  the  President  and  was  tried  by 

general  court-martial.    See  OFFICERS,  89. 

13.  Heads  of  department— President  acts  through— As  the  President  speaks  and  acts 

through  the  heads  of  several  departments  in  relation  to  subjects  which  appertain 
to  their  respective  duties,  their  acts  in  such  matters  may  be  presumed  to  have  been 
done  by  the  approbation  and  direction  of  the  President,  and  may  be  considered, 
in  legal  contemplation,  as  his  acts.  (Weller  v.  U.  8.,  41  Ct.  Cls.  335;  McCollum  v. 
U.  S.,  17  Ct.  Cls.  92;  McElrath  v.  U.  S.,  12  Ct.  Cls.  201,  214;  Wilcox  v.  Jackson,  13  Pet. 
498;  McElrath  v.  U.  S.,  102  U.  S.  426.)  File  5460-60,  J.  A.  G.,  Jan.  22, 1913,  p.  3.  See 
also  C.  M.  O.  12, 1915, 11;  29,  1915,  6;  42, 1915, 13. 

14.  Marines  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY. 

15.  Midshipmen — Advisable  that  sentence  of  dismissal  be  confirmed  by  President. 

C.  M.  O.  31, 1915, 11.    See  also  HAZING,  6;  MIDSHIPMEN,  32. 

16.  Ministerial  acts — The  President  can  not  be  required  to  perform  ministerial  acts  in 

person.    C.  M.  O.  12, 1915, 11. 

17.  Navy  Regulations— Necessity  of  approval  of  Navy  Regulations  by  President.    See 

REGULATIONS,  NAVY,  16-19. 

18.  Officer — Tried  by  general  court-martial  for  using  disrespectful  language  to  the  Presi- 

dent of  the  United  States.    G.  O.  85,  Oct.  11, 1867.    See  also  OFFICERS,  89. 

19.  Officer's  dismissal— Phraseology  in  confirming.    See  C.  M.  0. 19, 1909, 1. 

20.  Pardons.    See  PARDONS. 

21.  Same — The  President  in  the  exercise  of  his  power  to  pardon  may  commute  a  sentence. 

See  COMMUTING  SENTENCES,  4;  DISMISSALS,  18;  PARDONS,  35,  36;  PRESIDENT  OF 
THE  UNITED  STATES,  8. 

22.  Pay  clerks— Sentence  of  dismissal  should  be  confirmed  by  President,  as  a  pay  clerk 

is  a  warrant  officer. 

23.  Paymaster's  clerks — Not  necessary  that  President  should  confirm  sentence  of  dis- 

missal.   See  PAYMASTER'S  CLERKS,  8,  9.    But  see  C.  M.  O.  24,  1915;  26, 1915. 

24.  Regulations,  Navy— Necessity    of  approval  of   Navy  Regulations  by   President. 

See  REGULATIONS,  NAVY,  16-19. 

25.  Resignations  of  officers.   See  RESIGNATIONS. 

26.  Secretary  of  the  Navy— Act  of  Secretary  of  the  Navy  is  the  act  of  the  President. 

C.  M.  0. 12, 1915, 11;  29, 1915,  6;  42,  1915,  13.  See  also  PRESIDENT  OF  THE  UNITED 
STATES,  13. 

27.  Sentence — Imposed  by  Army  court-martial,  mitigated  by  President  after  return  of 

accused  to  naval  jurisdiction.  C.  M.  O.  49,  1914,  4.  See  also  MARINES  SERVING 
WITH  ARMY,  6. 

PRESS  COPY. 

l.  Evidence,  as.    See  CARBON  COPIES. 

PRESUMPTIONS. 

1.  Death— Presumption  of  death.    See  PRESUMPTIONS  OF  DEATH. 

2.  Law— E  \?erypne  is  presumed  to  know  the  law.    See  IGNORANCE  OF  Lvw. 

3.  Normal— "The  law  presumes  the  normal,  not  the  abnormal."    File  26543-87:2,  Sec. 

Navy.  Apr.  28.  1913,  p.  4. 

4.  "Official  duties*'— The  law  presumes  that  official  duties  are  properly  performed. 

C.  M.  O.  27,  1913,  15. 

5.  Regulations— Legality  of  a  regulation  is  presumed.    See  REGULATIONS,  NAVY,  48. 

PRESUMPTION  OF  DEATH. 

1.  Death  gratuity.    See  DEATH  GRATUITY,  24. 

2.  Seven  years  is  usual  period— While  seven  years  is  the  usual  period,  this  time  may  be 

shortened  by  proof  of  facts  which  would  prove  a  presumption  of  death.  File  26254- 
399;  7657-277,  J.  A.  G.,  Feb.  6,  1915;  C.  MT  O.  10,  1915,  9.  See  also  COMMON  LAW,  7; 
LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUKD,  21. 


468  PREVIOUS    CONVICTIONS. 

PREVIOUS  CONVICTIONS. 

1.  Accused— Must  be  present  when  evidence  of  previous  convictions  is  read.    See  PRE- 

VIOUS CONVICTIONS,  19. 

2.  Army— Evidence  of  previous  convictions  bv  courts-martial  while  serving  an  enlist- 

ment in  the  Army  is  not  admissible  as  evidence  of  previous  convictions  before  naval 
courts-martial  (C.  M.  0. 17, 1910,  p.  6.)  C.  M.  O.  29, 1914,  5. 

3.  Same — The  "accused  objected  to  the  reading  of  the  evidence  ofprevious  convictions 

for  the  reason  that  they  had  no  bearing  on  the  present  case."  The  court  was  cleared 
and  when  opened  the  "president  announced  that  the  reasons  given  by  the  accused 
in  objecting  to  the  introduction  of  the  evidence  of  previous  convictions  were  not  con- 
sidered by  the  court  to  be  valid,  and  unless  the  accused  presented  some  valid  objec- 
tion, and  still  persisted  in  his  objection  on  the  grounds  given,  the  evidence  of  previous 
convictions  would  be  introduced  over  his  objection  in  the  regular  manner."  The 
accused  was  thus  given  every  opportunity  to  make  further  objection  and  as  none 
was  forthcoming  tne  record  of  previous  convictions  was  introduced.  The  evidence 
of  previous  convictions  objected  to  by  the  accused  consisted  of  a  naval  general  court- 
martial,  a  naval  summary  court-martial,  and  an  Army  summary  court-martial  while 
serving  temporarily  with  the  Army  at  V'era  Cruz,  Mexico. 

Subject  to  the  regulations  governing  evidence  of  previous  convictions  such  con- 
victions by  Army  courts  under  Army  Regulations  should  be  regarded  as  previous 
•convictions  in  cases  of  enlisted  men  of  the  Marine  Corps  who  have  served  temporarily- 
with  the  Army.  (File  5945-24,  Oct.  17, 1907.)  C.  M.  O.  36, 1914,  8. 

4.  Certified  copies— Of  extracts  of  previous  convictions  must  be  appended  to  record 

C.  M.  O.  28, 1910,  4. 

5.  Clerical  error— It  was  noticed  by  the  department  that  evidence  of  previous  convic- 

tions was  in  the  hands  of  the  judge  advocate,  but  the  record  showed  no  entry  as  to 
it  being  introduced.  Upon  inquiry  it  was  ascertained  that  such  evidence  had 
been  introduced  properly  but  through  a  clerical  error  tne  entries  had  been  omitted 
from  the  record.  C.  M.  O.  55, 1910, 9. 

.6.  Commanding  officers — "Are  enjoined  to  exercise  care  to  insure  that  the  provisions 
of  Article  1832(2)  [Navy  Regulations,  1913,  R-024(2)]  are  promptly  carried  out  in  all 
cases,  otherwise  men  whose  records  are  bad,  may,  when  brought  to  trial,  properly 
••object  to  the  introduction  of  evidence  of  previous  convictions."  C.  M.  0. 6, 1909,  4. 

7.  Court-martial  orders  -As  evidence  of.    See  COURT-MARTIAL  ORDERS,  25-28. 

8.  Current  enlistment— Must  relate  to  current  enlistment,  except  when  last  enlistment 

was  terminated  by  sentence  of  court-martial  or  by  discharge  as  undesirable  by  order 
of  tne  department,  in  which  cases  all  convictions  occurring  in  prior  enlistment  therebv 
terminated  are  admissible.  C.  M.  O.  29,  1914,  4;  C.  M.  O.  36,  1914,  8.  See  also  PRE- 
VIOUS CONVICTIONS,  20. 

9.  Definition— Of  previous  convictions  is  not  evidence  or  testimony  in  the  legal  sense, 

which  refers  to  matter  tending  to  establish  the  guilt  or  innocence  of  the  accused  upon 
the  charge.  C.  M.  O.  29,  1914,  5.  See  also  PREVIOUS  CONVICTIONS,  19. 

A  case  was  approved  where  the  court  permitted  the  record  of  a  trial  by  a  civil  court 
as  evidence  of  a  previous  conviction,  but  the  department  extended  clemency.  C. 
M.  O.  86,  1902. 

10.  Disapproval.   See  PREVIOUS  CONVICTIONS,  19. 

11.  Extended  enlistments.    See  PREVIOUS  CONVICTIONS,  19,  20. 

12.  Findings— Previous  convictions  are  introduced  after  findings  are  reached,  not  before. 

C.  M.  O.  11,  1897,  2-3. 

"It  is  also  noted  that  the  fact  that  there  were  or  were  not  previous  convictions  was 
omitted  entirely  from  the  proceedings,  which  is  contrary  to  the  authorized  procedure. 
C,  M.  O.  36, 1905,  3. 

13.  Same— No  evidence,  except  evidence  of  previous  convictions,  shall  be  admitted  after 

the  court  arrives  at  its  finding.    C.  M.  0. 15, 1910, 12.    See  also  EVIDENCE,  15. 

11.  Improperly  introduced— The  judge  advocate  introduced  and  the  court  received  evi- 
dence of  previous  conviction  which  was  clearly  inadmissible.  As  the  introduction 
of  this  evidence  of  previous  conviction  may  have  influenced  the  court  in  determining 
the  sentence  adjudged  tne  court  was  ordered  to  reconvene  for  the  purpose  of  reconsider- 
ing the  sentence,  excluding  during  such  reconsideration  the  above-mentioned  evi- 
dence of  previous  conviction.  C.  M.  0. 17, 1910,  6. 

15.  Indorsement  on  a  letter— The  judge  advocate  introduced  in  evidence  for  the  purpose 
of  showing  previous  conviction  of  tne  accused,  an  indorsement  of  The  Adjutant  Gen- 
eral of  the  Army,  upon  a  letter  of  the  Adjutant  and  Inspector  of  the  Marine  Corps. 
This  procedure  "was  improper,  as  such  writing  is  not  competent  evidence  to  prove 
previous  conviction.  C.  M.  O.  47, 1910,  4. 


PEEVIOUS    CONVICTIONS.  469 

16.  Judge  advocate— If  the  judge  advocate  has  notice  of  the  existence  of  proper  evidence 

of  previous  convictions,  he  should  obtain  same  and  introduce  it.  C.  M.  O.  47, 1910, 9; 
14, 1910,  9;  15, 1910, 9;  1912, 4. 

17.  Same^-If  the  judge  advocate  has  in  his  possession  proper  evidence  of  previous  con- 

victions he  should  not  fail,  either  from  carelessness  or  any  other  reason ,  to  introduce 
it  before  the  court.  C.  M.  0. 42, 1909, 3;  47. 1910. 8;  15, 1910, 9;  21 , 1910, 13. 

18.  Judicial  notice — Courts-martial  may  take  judicial  notice  of  court-martial  orders  con- 

taining evidence  of  previous  convictions.    See  COURT-MARTIAL  ORDERS,  26-28. 

19.  Nature  and  adinissibility  of — Prior  to  October  4, 1910,  evidence  of  previous  convic- 

tions, relating  to  an  enlistment  from  wliioh  the  accused  had  been  discharged  as  unde- 
sirable, was  not  admissible;  but  a  change  in  the  Navy  Regulations  under  that  date 
made  such  evidence  admissible. 

In  order  to  be  admissible,  evidence  of  previous  convict  ions  must  relate  to  the  current 
enlistment  of  the  accused  (Navy  Regulations,  1913,  R-617  (3);  R-804  (2;;  Forms  of 
Procedure,  1910,  p.  41;  C.  M.  O.  14,  1910,  p.  8;  17,  1910,  p.  6)except  incases  where  the 
accused  has  been  previously  discharged  from  the  service  through  sentence  of  a  court- 
martial  (Navy  Regulations,  1913,  R-804  (2);  Forms  of  Procedure,  1910,  p.  41;  C.  M.  O. 
14, 1910,p.  8;  17, 1910,  p.  6;  28, 1913,  p.  4)  or  by  order  of  the  department  as  undesirable 
(Navy  Regulations,  1913,  R-8C4  (2);  C.  M.  O.  2S,  1913,  p.  4,  overruling  C.  M.  O.  14, 
1910,  pp.  8-9;  17, 1910,  p.  6,  both  of  these  orders  antedating  Oct.  4, 1910).  [For  modi- 
fication of  the  foregoing  see  PREVIOUS  CONVICTIONS,  8,  20.) 

The  exception  in  which  evidence  of  previous  convictions  is  admissible  "Where 
the  accused  has  been  previously  discharged  from  the  service  through  sentence  of  a 
court-martial"  includes  evidence  of  previous  convictions  occuring  during  such  en- 
listment as  well  as  evidence  of  the  conviction  by  which  the  accused  was  discharged 
therefrom  (File  2P504-214). 

In  the  cases  of  men  who  have  extended  their  enlistments,  convictions  occurring 
prior  to  the  expiration  of  the  four  year  term  of  enlistment  or  prior  to  the  current 
extension  of  such  enlistment,  shall  not  be  considered  as  having  occurred  during  their 
current  enlistment. 

It  is  further  required  that,  in  order  to  be  admissible,  the  evidence  of  previous  con- 
victions must  refer  to  actual  trials  and  convictions  that  have  been  approved  by  the 
authorities  whose  action  is  requisite  to  give  full  effect  to  the  sentence  (Navy  Regu- 
lations, 1913,  R-;617  (3);  R-804  (2);  Forrns  of  Procedure,  1910,  p.  41)  except  in  cases 
upon  which  action  has  been  withheld  and  the  accused  placed  on  probation  (Navy 
Regulations,  1913,  R-804  (2);  Forms  of  Procedure,  1910,  p.  41).  [See  PREVIOUS  CON- 
VICTIONS, 20.] 

Where  the  accused  has  previously  been  tried  and  found  guilty  and  such  finding 
has  been  approved,  evidence  thereof  is  admissible  as  a  previous  conviction  although 
the  sentence  of  the  court  may  have  been  remitted  in  whole  or  Li  part  (File  26806-117, 
Apr.  21,  1914). 

When  the  finding  and  sentence  have  been  disapproved  by  the  proper  reviewing 
authority  this  is  not  admissible  as  a  previous  conviction  on  a  subsequent  trial  (Navv 
Regulations,  1913,  R-617  (3);  C.  M.  O.  54,  1899;  35,  1900;  146,  1901;  34,  1903;  106, 
1903,  4;  31,  1910,  4). 

Evidence  of  previous  convictions  by  courts-martial  while  serving  an  enlistment 
in  the  Army  is  not  admissible  as  evidence  of  previous  convictions  before  naval  courts- 
martial  (C.  M.  0. 17, 1910,  p.  0). 

In  cases  in  which  the  accused  has  first  been  found  not  guilty  by  the  court,  but  in 
revision  the  court  revokes  this  finding  and  substitutes  therefor  a  finding  of  guilty, 
evidence  of  previous  convictions  may  be  introduced  during  the  proceedings  in  revi- 
sion; such  "evidence"  of  previous  convictions  not  being  evidence  or  testimony  in 
the  legal  sense,  which  refers  to  matter  tending  to  establish  the  guilt  or  innocence 
of  the  accused  upon  the  charge  rather  than  to  matter  introduced  after  the  trial  has 
been  finished,  for  the  sole  purpose  of  being  considered  by  the  court  in  arriving  at  its 
sentence.  (G.  C.  M.  Rec.  2SG13,  Feb.  20,  1914,  overruling  0.  M.  O.  42, 1909,  p.  3,  21, 
1910,  p.  13.)  In  such  cases  the  accused  must  of  course  be  present  when  the  evidence 
of  previous  convictions  is  introduced.  C.  M.  O.  29, 1914, 4-5.  See  also  EVIDENCE,  15. 

20.  Same — Evidence  of  previous  convictions  must  refer  to  actual  trials  and  convictions 

that  have  been  approved  by  the  authorities  whose  action  is  requisite  to  give  full 
effect  to  the  sentence,  except  in  cases  upon  which  action  has  been  withheld  and  the 
accused  placed  on  probation.  Evidence  of  previous  convictions  must  relate  to  the 
current  enlistment  of  the  accused,  except  when  the  last  enlistment  was  terminated 
by  sentence  of  court-martial  or  by  discharge  as  undesirable  by  order  of  the  department 


470  PREVIOUS    CONVICTIONS. 

in  which  cases  all  convictions  occurring  in  the  prior  enlistment  thereby  terminated 
are  admissible.  In  the  cases  of  men  serving  under  extended  enlistments,  convictions 
occurring  prior  to  the  expiration  of  the  four-year  term  of  enlistment,  or  prior  to  the 
current  extension  of  such  enlistment,  shall  not  be  considered  as  having  occurred 
during  their  current  enlistment.  (R-617  (3):  R-804  (2)).  See  C.  M.  O.  36. 1914,  8. 

21.  Object — Accused  must  be  given  an  opportunity  to  enter  reasonable  objection  to  the 

introduction  of  evidence  of  previous  convictions.  C.  M.  O.  21,  1910,  13.  See  also 
C.  M.  O.  9, 1908,  7. 

22.  Offense — Committed  after  that  for  which  accused  is  on  trial.    File  26287-173. 

23.  Rerevlskm — The  judge  advocate  neglected  to  introduce  evidence  of  previous  conviction 

at  the  proper  time.  The  record  was  returned  for  revision  with  reference  to  the  sen- 
tence and  proceedings  and  called  attention  to  the  neglect  of  the  judge  advocate  in 
not  introducing  the  evidence  of  previous  conviction.  The  court  then  received  evi- 
dence of  previous  conviction  introduced  by  the  judge  advocate  in  revision.  The 
record  was  returned  for  a  rerevision  of  the  sentence  and  with  a  statement  that  that 
part  of  the  proceedings  referring  to  previous  conviction  should  be  struck  out  and  not 
be  considered  in  arriving  at  a  sentence.  The  court  in  rerevision  struck  out  that  part 
of  the  proceedings  in  first  revision  referring  to  the  introduction  of  previous  conviction. 
C.  M.  O.  42, 1909, 3. 

24.  Revision— Illegal  to  enter  in  revision.    C.  M.  O.  42,  1909,  3;  21,  1910,  13,  16.    But  see 

PREVIOUS  CONVICTIONS,  19,  for  a  modification  of  this. 

25.  Sentence  remitted.    See  PREVIOUS  CONVICTIONS,  19. 

26.  Sentence  terminates  enlistment.   See  PREVIOUS  CONVICTIONS,  19,  20. 

27.  "Set  aside" — In  a  case  where  a  court  permitted  the  introduction  as  evidence  of  a 

previous  conviction  by  a  summary  court-martial  in  which  the  sentence  had  been"set 
aside  by  the  Navy  Department"  the  department  held  that  the  court  erred.  C.  M.  O. 
34, 1903, 1. 

28.  Trials  and  convictions.    See  PREVIOUS  CONVICTIONS,  19, 20. 

PRIMA  FACIE. 

1.  "Absence  from  station  and  duty  after  leave  had  expired"— Prima-facie  case  of 

See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE  HAD  EXPIRED,  18. 

2.  "Desertion"— Prima-facie  case  of.    See  DESERTION,  102-104. 

3.  Embezzlement.   See  EMBEZZLEMENT,  24. 

4.  Evidence.   C.  M.  O.  31, 1915, 15.    See  also  DESERTION,  105;  FRAUDULENT  ENLISTMENT, 

5.  Fraudulent  enlistment— Prima-facie  case  of.    C.  M.  O.  12,  1911,  4;  10,  1913,  3.    See 

also  FRAUDULENT  ENLISTMENT,  23,  27,  71,  72. 

6.  Incapacity  to  perform  active  duty— Right  of  officer  to  promotion.    See  PROMO- 

TION, 19, 64, 97. 

7.  Officers— Prima  facie  responsible.    C.  M.  0. 41, 1888,  5;  128, 1905,  2. 

8.  Promotion— Officers  found  prima  facie  not  qualified  for  promotion.    See  PROMOTION, 

19,  64,  97. 

9.  Theft — Prima  facie  case  of.    See  THEFT,  14-16. 

PRIMARY  EVIDENCE.    See  CARBON  COPIES. 
PRINTER,  CHIEF.    See  RATING,  2. 

PRINTING  PRESS. 

1.  Requisition  for— A  requisition  for  a  printing  press  by  the  Boston  Naval  Prison  was 
rejected.  Although  printing  for  navy  yards  is  not  required  by  law  to  be  done  at 
the  Government  Printing  Office,  it  is  not  considered  that  the  cost  of  a  press  should 
properly  be  charged  to  the  appropriation  "Expenses  of  courts-martial,  prisoners 
and  prisons,"  even  though  the  press  is  to  be  operated  by  prisoners,  because  the 
amount  of  printing  to  be  done  thereby  for  the  use  of  the  prison  itself  is  compara- 
tively negligible.  File  12494-155,  J.  A.  G.,  Mar.  30, 1912. 

PRISONS. 

1.  Disciplinary  Barracks.    See  DETENTIONERS. 

2.  Printing  press  for.    See  PRINTING  PRESS. 


PRISONERS.  471 

PRISONERS. 

1.  Absence  of  during  trial.    See  ACCUSED,  1-9. 

2.  Allotments.    See  ALLOTMENTS,  6,  7. 

3.  Allowances — In  general.   See  ALLOWANCES. 

Men  discharged  pursuant  to  this  schedule  (G.  0. 110,  Revised),  except  those  who 
have  served  pursuant  thereto  a  term  of  imprisonment  in  a  naval  prison  on  shore,  will 
not  be  regarded  as  "discharged  naval  prisoners"  within  the  meaning  of  the  acts  of 
February  16,  1909,  sec.  13  (35  Stat.  622),  and  March  3,  1909  (35  Stat.  756),  providing 
for  allowances  to  prisoners  on  discharge.  General  Order  No.  110  (Revised,  July, 
1916,)  p.  5. 

4.  Awaiting  trial— Status  of— The  department  has  recently  received  complaints  from 

relatives  and  those  interested  in  enlisted  men  on  account  of  the  fact  that  certain 
men  awaiting  trial  by  general  court-martial  while  retained  in  the  brig  on  a  receiving 
ship  were  required  to  wear  clothing  on  which  was  stamped  the  word  "  Prison," 
and  that  such  men  on  first  entering  the  brig  have  their  hair  closely  clipped. 

Attention  is  invited  to  the  fact  that  men  confined  in  the  brig  of  a  receiving  ship 
awaiting  trial  by  general  court-martial  are  not  undergoing  punishment  and  have 
not  been  sentenced  to  imprisonment  but  are  merely  confined  pending  trial  and 
awaiting  action  thereon.  It  should  be  distinctly  understood  that  the  status  of  these 
men  is  not  that  of  prisoners  undergoing  punishment,  and  it  is  contrary  to  the  policy 
of  the  department  to  subject  them  to  treatment  which  unnecessarily  savors  of  a 
prison  status. 

The  department  disapproves  of  the  use  of  the  word  "Prison"  on  the  clothing 
which  is  worn  by  men  in  this  status  and  directs  that  if  some  mark  is  necessary  to 
distinguish  these  men  from  other  enlisted  men  for  the  purpose  of  preventing  their 
escape,  some  inconspicuous  designating  mark  be  used  instead  of  the  word  "  Prison." 
The  department  also  regards  as  unnecessary  for  the  strict  rules  of  cleanliness  that 
the  hair  of  men  so  confined  be  clipped  and  directs  that  this  custom  be  discontinued. 

The  department  is  not  unmindful  of  the  necessity  of  cleanliness  and  discipline  at  all 
times  and  commends  the  efforts  of  officers  in  charge  of  brigs  to  effect  the  same;  at  the 
same  time  it  is  not  the  policy  of  the  department  to  impose  unnecessary  hardships  on 
men  in  the  above  status  nor  to  make  their  confinement  awaiting  trial  punitive  in  its 
character.  (See  Navy  Regulations,  1913,  R-1426;  R-1427  (1).)  File  26251-10542,  Sec. 
Navy,  July  10, 1915;  C.  M.  O.  27, 1915,  9. 

5.  Civil  authorities — Naval  prisoners  wanted  by  civil  authorities.    See  CIVIL  AUTHORI- 

TIES, 37,  38;  GENERAL  OEDEK  No.  121,  SEPT.  17, 1914,  16;  JURISDICTION,  111. 

6.  Civilian  outfits  for— Chargeable  to  "Pay,  miscellaneous."    See  27210-150,  J.  A.  G... 

Feb.  9, 1912. 

7.  Clothing  allowances.    See  DETENTIONERS,  2. 

8.  Clothing,  useless— Disposition  of  useless  clothing.    See  PUBLIC  PROPERTY,  1,  6. 

9.  Death  of.   See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  80,  81. 

10.  Debts— Liquidation  of.    See  FUe  26507-214:29,  J.  A.  G.,  Feb.  25,  1916;  26287-560;  26251- 

7004:2,  Sec.  Navy,  Mar.  31, 1913;  26287-560,  Sec.  Navy,  Aug.  3,  1910. 

11.  Dental  services.    See  DENTAL  SERVICES,  1. 

12.  Detentioners.    See  DETENTIONERS. 

13.  Disposition  of  effects.   See  DISPOSITION  OF  EFFECTS,  7,  8. 

14.  Employment  of.    See  File  26288-215:2. 

15.  "Enticing  a  prisoner  to  escape" — Enlisted  man  charged  with.    C.  M.  O.  48, 1889. 
•16.  Escape  of  prisoners  from  a  naval  prison — Court  of  inquiry  convened  to  investigate. 

Ct.  Inq.  Rec.  5025.    See  also  File  7657-125. 

17.  Escaped  court-martial  prisoners— Jurisdiction  of  civil  and  naval  authorities  over 

an  escaped  court-martial  prisoner  on  parole  for  civil  offense.    SeeJ  URISDICTION,  99. 

In  reply  to  a  question  as  to  the  status  of  a  naval  prisoner  who  "escaped  "  from  the 
guard  after  having  been  convicted  of  "  Desertion "  the  following  reply  was  made: 
"In  reply  you  are  informed  that  the  case  stated  in  your  letter  is  such  that  this  de- 
partment could  not  with  propriety  express  an  opinion  on  the  subject  or  give  con- 
sideration to  a  person  who  is  in  the  status"  of  the  man  in  question.  "That  he  is 
amenable  to  trial  and  punishment  is  unquestioned;  and  he  should  be  advised  to 
surrender  himself  to  the  nearest  navy  yard  or  marine  barracks  to  be  dealt  with 
according  to  law."  File  26516-221,  J.  A.  G.,  Oct.  12,  1916. 

18.  Escaping  prisoner — Guard  fired  at  escaping  prisoner  and  killed  innocent  bystander. 

See  MANSLAUGHTER,  9. 


472  PRISONERS. 

19.  Same— "If  a  prisoner  or  detentioner  attempts  to  escape  the  sentinel  shall  call  'halt.' 

If  the  prisoner  or  detentioner  fails  to  half  when  the  sentinel  has  once  repeated  the 
call,  and  if  there  be  no  other  apparent  means  of  preventing  his  escape,  the  sentinel  shall 
fire  upon  him.  A  sentinel  will  use  his  firearms  only  in  cases  of  attempted  escape  or 
mutiny,  and  then  only  after  giving  due  warning;  but  when,  in  his  judgment,  the  time 
has  arrived  to  fire,  or  he  is  ordered  to  fire,  he  must  aim  to  hit  and  disable  the  offender. " 
(Manual  for  the  Government  of  United  States  Naval  Prisons  and  Detention  Systems, 
1916,  p.  19.)  See  also  MANSLAUGHTER,  9. 

20.  General  Order  No.  121.    See  GENERAL  ORDER  No.  121,  SEPT.  17, 1914. 

21.  Government  Hospital  for  the  Insane— Prisoners  and  patients  at.    See  GOVERN- 

MENT HOSPITAL  FOR  THE  INSANE. 

22.  Injury  to  prisoner  while  In  confinement.    See  LINE  OF  DUTY  AND  MISCONDUCT 

CONSTRUED,  81. 

23.  Jurisdiction— Over  prisoners  after  discharge  or  expiration  of  enlistment.    See  EN- 

LISTMENTS, 8-11;  JURISDICTK>N,  52, 110 

24.  Letters,  right  to  open — "  Prison  authorities  have  no  right  to  open  and  inspect  letters 

to  or  sent  by  prisoners  or  detentioners  second  class  without  the  consent  of  such  prison- 
ers or  detentioners  second  class.  They  may,  however,  retain  unopened  letters  until 
the  prisoners  or  detentioners  second  class  are  released  or  the  letters  otherwise  lawfully 
disposed  of."  (Manual  for  the  Government  of  United  States  Naval  Prisons  and 
Detention  Systems,  1916,  sections  62-68,  pp.  36-44.) 

25.  Marriage  of.   See  MARRIAGE,  2. 

26.  Pay.   See  DETENTIONERS,  2;  PAY,  15,  28,  79. 

27.  Probation.   See  GENERAL  ORDER  No.  110,  July  27, 1914;  NAVAL  INSTRUCTIONS,  1913 

1-4893;  PROBATION. 

28.  Process — Service  of.    See  GENERAL  ORDER  No.  121,  SEPT.  17, 1914. 

29.  Receipts  for.   See  G.  O.  46,  JAN.  5, 1865. 

30.  Restoration  to  duty— Does  not  operate  as  a  constructive  pardon.    See  PARDONS,  47. 

31.  Same — As  a   bar  to  further  disciplinary  proceedings.    File   1493-04;  26251-8539:1, 

J.  A.  G.,  Jan.  21, 1914.    See  also  JEOPARDY,  FORMER,  32. 

32.  Specialists— Prisoners  examined  by  specialists.    See  File  26262-1625:21,  Sec.  Navy 

May  20, 1913. 

33.  Transportation  of— When  distance  to  home  is  excessive  the  prisoner  should  be 

transported  to  place  of  enlistment  instead  of  his  home. 

34.  Treatment  and  place  of  confinement.    See  PRISONERS,  4;  SWEAT  BOXES. 

35.  Uniforms.    See  DETENTIONERS,  2. 

36.  War— Prisoners  of  war.    See  PRISONERS  OF  WAR. 

37.  Wedding— Prisoner  married  while  in  prison.    See  MARRIAGE,  2. 

38.  Witnesses — Naval  prisoners  wanted  by  civil  authorities  as  witnesses  in  civil  courts. 

See  CIVIL  AUTHORITIES,  38;  GENERAL  ORDER  No.  121,  SEPT.  17, 1914,  23. 

39.  Same  -Where  the  department  had  directed  the  release  of  a  prisoner,  it  was  subse- 

quently directed  that  the  discharge  be  withheld  in  order  that  the  prisoner  might 
be  available  as  a  witness.  File  2847-31,  Sec.  Navy,  May  12, 1908. 

PRISONERS  OF  WAR. 

1.  Treatment  and  Internment— Of  belligerents  by  neutrals.    See  File  28573-1,  J.  A  G 
Dec.  20,  22,  1915;  28573-4,  J.  A.  G.,  Dec.  23,  1915. 

PRIVATE  ADMINISTRATOR.    See  DISPOSITION  OF  EFFECTS,  2. 

PRIV4TE  DEBTS. 

1.  Order  to  pay.    See  DEBTS,  17, 18. 

PRIVATE  DETECTIVE  AGENCY. 

1.  Reward  for  deserters— Payment  to.    See  REWARDS,  11,  12. 

PRIVATE  LITIGATION.    See  also  CIVIL  COURTS. 

1.  Board  of  Inquest— Copy  of  record  requested.    See  BOARDS  OF  INQUEST,  6. 

2.  Debts— Of  officers.    See  MESSES. 

3.  Divorce.   See  CIVIL  COURTS,  7.  • 

4.  Officers— Government  will  not  compel  officers  to  testify  in  private  litigation.    See 

WITNESSES,  89. 

5.  Promotion — Litigation  pending  in  civil  courts— Procedure  of  a  Marine  Examining 

Board.    See  MARINE  EXAMINING  BOARDS,  3. 

6.  Wife — Support  of.    See  CIVIL  COURTS,  7. 

7.  Witnesses.    See  GENERAL  ORDER  No.  121,  SEPT.  17, 1914, 15,  23. 


PRIZE   MONEY.  473 

PRIVATE  REPRIMANDS. 

1.  Nature  of-  A  letter  of  reprimand  to  an  officer,  although  necessarily  seen  by  several 

persons  before  reaching  its  destination,  is  nevertheless  a  "private"  reprimand,  and 
not  public.  File  26251-2993,  J.  A.  G.,  Mar.  10, 1910.  See  also  LIBEL,  1. 

A  private  reprimand  is  executed  by  addressing  a  letter  to  the  officer  concerned 
through  the  usual  official  channels.    File  26251-2993,  J.  A.  G.,  Mar.  10, 1910,  p.  8. 

2.  Plea  In  bar — Private  reprimand  not  good  grounds  on  which  to  base  a  plea  in  bar  of 

trial.    C.  M.  O.  28, 1907,  3.    See  also  JEOPARDY,  FORMER,  23,  25. 

3.  Same — A  private  reprimand,  administered  by  the  commander  in  chief  of  a  fleet  to  a 

naval  officer  in  accordance  with  the  recommendation  of  a  court  of  inquiry,  as  a 
punishment  for  an  offense,  such  as  neglect  of  duty,  is  no  bar  to  a  subsequent  trial 
of  such  officer  by  general  court-martial  for  the  same  offense.  (25  Op.  Atty.  Gen.,  623.) 
C.  M.  O.  7, 1914,  6.  See  also  JEOPARDY,  FORMER,  23. 

PRIVILEGE. 

1.  Attorney  and  client.    See  C.  M.  O.  5, 1917;  PRIVILEGE,  2,  3;  WIFE,  13. 

2.  Attorney  in  fact — Letters  from  a  person  to  his  attorney  in  fact  do  not  come  within 

the  class  of  privileged  communications.    File  26251-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  8. 

3.  Letter  written  by  officer  to  attorney — A  communication  was  addressed  by  a  naval 

officer  to  his  agent  or  attorney  in  fact  containing  libelous  statements  concerning  his 
superior  officer;  the  agent  thereafter  employed  an  attorney  at  law  and  gave  him, 
among  other  papers,  the  original  of  said  libelous  communication;  this  libelous  com- 
munication was  forwarded  by  the  attorney  at  law  to  the  Secretary  of  the  Navy  as 
part  of  a  report  made  by  him  to  tho  Navy  Department  in  behalf  of  the  writer  of  said 
communication  against  the  officer  libeled;  the  attorney  at  law  contends  that  said 
libelous  communication  was  privileged,  was  negligently  sent  by  him  to  the  Navy 
Department  contrary  to  his  authority  and  without  the  actual  or  imnlied  consent  of 
the  writer  thereof,  and  that  accordingly  said  libelous  communication  can  not  be 
used  in  evidence  against  the  officer  by  whom  it  was  written.  Held:  The  letter  is  not 
privileged  and  may  be  used  as  evidence  against  the  writer.  (See  40  Cyc.  2377 ;  Tear- 
son  v.  State,  66  Tex.  Cr.  607,  120  S.  W.  1004;  5  Cyc.  708;  38  Cvc.  295;  Sec.  856  Penal 
Code  of  N.  Y.;  People  v.  Loveless,  84  N.  Y.  Sup.  1114;  People  v.  Wickes,  98  N.  Y. 
Sup.  103;  40  Cyc.  2365,  citing  Turner  v.  Turner,  123  Ga.  5,  50  S.  E.  969;  Collins  v.  John- 
son, 16  Ga.  458;  Phoebus  v.  Webster,  40  Misc.  (N.  Y.)  528,  82  N.  Y.  Sup.  868;  25  Cyc. 
367;  25  Cyc.  570;  25  Cyc.  572;  25  Cyc.  581;  State  v.  Shaffner,  44  Atl.  620,  621;  Swindle  v. 
State,  10  Tenn.  581, 582;  Mankms  t;.  State,  41  Tex.  Cr.  R.  662;  Haase  v.  State,  53  N.  J. 
Law,  34;  Brungger  v.  State,  49  Fed.  Rep.  124;  Collins  v.  Hoffman,  26  Ann.  Cas.  13; 
Greenleaf,  sees.  237, 239;  Wigmore,  sec.  2286, 2300;  Rice  on  Evidence,  p.  651;  Best  on 
Evidence,  sec.  581;  23  A.  &  E.  Encycl.  of  L.  56,  58,  60;  Lifschitz  v.  O'Brien,  127  N.  Y. 
Supp.  1091,  1092;  Conn.  Mut.  Life  Ins.  Co.  v.  Schaefer,  94  U.  S.  457;  Blackburn  v. 
Crawfords,  13  Wall.  175;  Glover  v.  Patten,  165  U.  S.  394;  Stone  v.  Minter,  50  L.  R.  A. 
359;  Federal  Criminal  Code,  section  146,  35  Stat.,  1114;  File  26251-29933,  J.  A.  G.,  Mar. 
10, 1910.)  File  26251-12158-12159,  J.  A.  G.,  August,  1916;  C.  M.  O.  5,  1917. 

4.  Self-incrimination.    See  SELF-INCRIIIINATION. 

5.  State  secrets.    See  EVIDENCE,  82. 

6.  Wife.   See  WIFE,  8, 11-13. 

PRIZE  COURTS. 

1.  Advance  bases— Treatment  of  neutrai  merchant  ships  seized  as  prizes  by  belligerents 

and  taken  to  an  advance  base  where  prize  proceedings  cannot  be  had  and  it  may  be 
impossible  for  military  reasons  to  send  such  vessels  to  another  port.  File  28573-13:18, 
J.  A.  G.,  Nov.  18, 1916. 

2.  Belligerent  rights  over  vessels— Awaiting  action  of  prize  court.    File  28573-13:18. 

J  A.  G.,  Nov.  18, 1916. 

PRIZE  FIGHTING.    See  MANSLAUGHTER,  13. 

PRIZE  MONEY. 

1.  Prohibited  in  Navy— Allowance  of  prize  money  to  persons  in  tho  Navy  is  prohibited 

File  27601-116:2,  J.  A.  G.,  May  17,  1915;  27673-342,  J.  A.  G.,  Dec.  23,  1915.  See  also 
SALVAGE,  2;  An.  Rep.  J.  A.  G.,  1900,  p.  5. 

2.  Sentence  of  general  court-martial— An  acting  master's  mate  was  sentenced  among 

other  things  to  lose  "all  prize  money  and  pay  that  may  become  due  him."  G.  O. 
46,  Jan.  5,  1865. 

3.  Spanish  War.    Sff  An.  Rep.  J.  A.  G.,  189S,  pp.  11-12;  An.  Rep.  J.  A.  G.,  1899,  p. 
8;  File  4853;  9520-02. 


474  PROFESSORS   OF  MATHEMATICS. 

PROBATION. 

1.  Additional  punishment— For  misconduct  during  probation.    C.  M.  O.  21,  1910, 

11-12;  G.  C.  M.  Rec.  23368;  GENERAL  OEDEB  No.  110,  JULY  27, 1914, 16. 

2.  Clemency— Accused  placed  on  probation  because  of  a  recommendation  to  clemency 

by  the  members  of  a  court-martial.    See  CLEMENCY,  44,  64,  65. 

3.  Convening  authority— Action  of  convening  authority  regarding  probation.    See 

CONVENING  AUTHORITY,  46. 

4.  Department — Accused  placed  on  probation  by  department.    C.  M.  O.  42,  1909,  9. 

5.  Desertion — Accused  convicted  of  "Desertion,"  placed  on  probation— Pay  status  of 

C.  M.  0. 16,  1912,  4. 

6.  Same -Accused  placed  on  probation  and  deserted.    C.  M.  O.  42, 1909,  9. 

7.  Detentloners.   See  DETSNTIONERS. 

.   8.  G.  0. 11O.    See  GENERAL  ORDER  No.  110,  JULY  27,  1914. 
9.  1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4S93. 

10.  Officers—  Procedure  to  place  an  officer  on  probation  who  has  been  sentenced  to  dis- 

missal. The  case  should  be  laid  before  the  President  with  the  recommendation  that 
the  officer  be  placed  on  probation.  File  26251-5882,  J.  A.  G.,  Apr.  17,  1912.  See 
C.  M.  O.  33, 1911,  where  this  was  done.  See  also  DISMISSAL,  18,  19. 

11.  Same — Sentenced  to  dismissal,  placed  on  probation.    See  DISMISSAL,  19;  PRESIDENT 

OF  THE  UNITED  STATES,  8-11. 

12.  Same  -Officers  placed  on  probation.    C.  M.  O.  33,  1911;  20, 1912,  4. 

13.  Pay  of  probationers.    C.  M.  O.  10, 1912,  4.    See  also  PAY,  15;  PROBATION,  14. 

14  Prisoners— Under  section  9  of  the  act,  Feb.  16,  1909  (35  Stat.,  621),  the  Secretary  of 
the  Navy  is  authorized  to  suspend  the  sentences  of  courts-martial  and  restore  prison- 
ers to  duty  on  probation,  and  during  such  period  the  probationers  are  entitled  to 
receive  the  full  pay  of  their  respective  ratings.  (Comp.  Dec.,  Nov.  2, 1910;  17  Comp. 
Dec.  311.)  See  File  26254-529. 

15.  Same— Restored  to  duty  on  probation.    C.  M.  O.  6,  1915,  11.    See  also  CONVENING 

AUTHORITY,  55. 

16.  Procedure— In  different  offenses.    See  File  26504-108,  J.  A.  G.,  Apr.  6,  1911. 

17.  Reports.    See  C.  M.  O.  47,  1910, 10;  1510,  4;  17,  1910,  5,  12;  21,  1910, 12;  21,  1912,  3,  4. 

18.  Secretary  of  the  Navy— Is  the  only  convening  authority  with  power  to  place  accused 

on  probation.  See  CONVENING  AUTHORITY,  46.  But  see  GENERAL  ORDER  No.  110, 
JULY  27,  1914;  NAVAL  INSTRUCTIONS,  1913, 1-4893;  Manual  for  the  Government  of 
United  States  Naval  Prisons  and  Detention  Systems,1916,  Sec.  12. 

19.  Status  of  probationers.    C.  M.  0. 10, 1912,  4. 

20.  Warrant  officers-  Placed  on  probation.    C.  M.  O.  48, 1914. 

PROCEEDINGS  NOT  PREJUDICIAL  TO  ACCUSED'S  INTERESTS.  See  ERROR 
WITHOUT  INJURY. 

PROCESS.   See  CIVIL  AUTHORITIES;  GENERAL  ORDER  No.  121,  SEPT.  17, 1914. 

PROCLAMATIONS. 

1.  Judicial  Notice.   See  STATUTES,  10. 

PROCURING  STORES,  ARTICLES,  AND  SUPPLIES  FOR,  AND  DISPOSING 
THEREOF  TO,  ENLISTED  MEN  AT  A  NAVAL  STATION,  FOR  HIS  OWN 
ACCOUNT  AND  BENEFIT. 

1.  Enlisted  man— Charged  with.    File  26251-12358. 

PROFANE  AND  THREATENING  LANGUAGE. 

1.  Massachusetts  laws.    File  26251-2993:12. 

"PROFANE  SWEARING,"  ETC. 

1.  Specific  intent—  Not  necessary.    See  INTENT,  2. 

PROFESSORS  OF  MATHEMATICS. 

1.  Abolished— "Hereafternofurtherappointmentsshallbemade  to  the  Corps  of  Professors 

of  Mathematics,  and  that  corps  shall  cease  to  exist  upon  the  death ,  resignation,  or  dis- 
missal of  the  officers  now  carried  in  that  corps  on  the  active  and  retired  lists  of  the 
Navy."  (Act  of  Aug.  29, 1916.) 

2.  Advancement  in  rank.    See  File  26289-9,  J.  A.  G.,  Mar.  30, 1912. 

3.  Date  of  precedence.    See  File  11130-9,  J.  A.  G.,  July  18, 1910. 

4.  Promotion.    File  11130-29,  Sec.  Navy,  Oct.  7, 1915. 

5.  Vacancy— Filling  of,  by  President.    See  File  20289-11,  Sec.  Navy,  Dec.  17, 1912. 


PROMOTION.  475 

PROMISES. 

1.  Confessions.    See  CONFESSIONS,  1-4,  6, 21. 

2.  Debts— Promises  to  pay  debts.    See  DEBTS,  21,  22. 

3.  Drunkenness— Promises  to  abstain  from  intoxicants.    See  PLEDGES  AND  PROMISES. 

4.  Ueenlist.   See  DISCHARGE  OBTAINED  BY  FRAUD. 

PROMOTION.   See  also  APPOINTMENTS;  COMMISSIONS;  MARINE  EXAMINING  BOARDS; 
NAVAL  EXAMINING  BOARDS;  PROMOTION  BY  SELECTION. 

1.  Acquittal  by  court-martial — Examining  board  shall  investigate  facts  independently. 

See  PROMOTION,  45. 

2.  Act  of  Aug.  39,  1916  (29  Stat.  556).    See  PROMOTION,  16-18,  85,  99,  111,  137,  138,  139, 

142, 165, 166, 186, 194-196, 213;  PROMOTION  BY  SELECTION. 

3.  Acting  assistant  surgeons — Failure  to  pass  may  be  waived.    See  ACTING  ASSISTANT 

SURGEONS,  2. 

4.  Action  of  the  President.    See  PROMOTION,  129. 

5.  Action  upon  the  record  by  the  department— The  department's  province  in  the 

case  of  action 
proper  IL 
the  findings. 
File  26256-128. 

6.  Same— Upon  Marine  Examining  Boards  records.    See  PROMOTION,  71, 134. 

7.  Additional  numbers.    See  ADDITIONAL  NUMBERS. 

8.  Admonition— Officerspromoted  but  admonished.    See  MARINE  EXAMINING  BOARDS,  2. 

9.  Appointments.   See  APPOINTMENTS. 

10.  Army — Promotion  in  Army.    See  PROMOTION,  131,  132, 186. 

11.  Auditor  for  the  Navy  Department— Jurisdiction  of  the  auditor  over  matter  involving 

promotion.    See  AUDITOR  FOR  THE  NAVY  DEPARTMENT,  5. 

12.  Binding  of  examining  board  records.    File  26260-3395,  Sec.  Navy,  Mar.  17,  1916. 

13.  Boards,  examining.    See  MARINE  EXAMINING  BOARDS;  NAVAL  EXAMINING  BOARDS. 

14.  Boards  of  investigation— Considered  by  naval  examing  boards.    File  26260-3421, 

Sec.  Navy,  May  1,  1916. 

15.  Boards  of  medical  examiners.    See  BOARDS  OF  MEDICAL  EXAMINERS. 

16.  Brigadier  generals  of  the  Marine  Corps— The  act  of  Aug.  29,  1916  (39  Stat.  609), 

provides,  in  part:  "That  brigadier  generals  shall  be  appointed  from  officers  of  the 
Marine  Corps  senior  in  rank  to  lieu  tenant  colonel:  Provided,  further,  That  the  promotion 
to  the  grade  of  brigadier  general  of  any  officer  now  or  hereafter  carried  as  an  additional 
number  in  the  grade  or  with  the  rank  of  colonel  shall  be  held  to  fill  a  vacancy  in  the 
grade  of  brigadier  general:  Provided,  further,  That  in  determining  the  officers  with 
rank  senior  to  colonel  there  shall  be  included  the  officer  serving  as  major  general  com- 
mandant . ' '  See  File  28687-7,  J .  A .  G . ,  Aug.  7, 1916,  for  date  commissions  should  bear. 
(Commissions  were  dated  Aug.  29, 1916.) 

17.  Same— Before  being  promoted,  the  officers  selected  to  be  promoted  from  the  grade  of 

colonel  to  that  of  brigadier  general  in  the  line  of  the  Marine  Corps,  are  required  to  pass 
a  physical,  mental,  and  moral  examination,  such  as  is  now  prescribed  by  law  for  other 
officers  of  the  Marine  Corps.  A  professional  examination  is  not  required  by  Naval 
Instructions,  1913, 1-3662.  File 26521-144:3,  J.  A.  G.,  Oct.  20, 1916. 

18.  Same — Two  colonels  on  duty  in  Haiti  and  Santo  Domingo  were  examined  for  promo- 

tion to  the  grade  of  brigadier  general  on  their  records.  Medical  officers  were  appointed 
in  the  above-mentioned  countries  to  examine  these  officers  physically  and  report  the 
results  of  the  examination  by  cable  and  in  addition  send  in  a  written  report.  File 
26521-144:3. 

19.  Burden  of  proof — "  As  to  the  burden  of  proof  In  cases  of  officers  found  prima  facie  not 

qualified  for  promotion  in  the  Navy,  any  objection  on  that  score  would  seem  to  be 
sufficiently  answered  by  the  authorities  already  considered.  However,  attention  is 
invited  to  the  fact  that  the  Act  of  Congress  approved  May  5,  1892  [27  Stat.  25],  pro- 
viding '  that  any  Chinese  person  or  person  of  Chinese  descent  arrested  under  the  pro- 
visions of  this  act,  or  the  acts  thereby  extended,  shall  be  adjudged  to  be  unlawfully 
within  the  United  States  unless  such  person  shall  establish  by  affirmative  proof,  to 
the  satisfaction  of  such  justice,  judge,  or  commissioner,  his  lawful  right  to  remain  in 
the  United  States,'  has  been  repeatedly  held  to  be  constitutional  (In  Re  Lee;  In  Re 
Clung  Jo,  54  Fed.  Rep.  334;  U.S.  v.  Wong  Dep  Ken,  57  Fed.  Rep.  206);  and  it  has  been 
held  that  proceedings  to  commit  a  minor  to  a  reform  school  upon  the  application  of 
his  father  are  not  in  the  nature  of  a  prosecution,  conviction,  and  punishment  for 
crime,  within  the  rules  governing  such  cases  (Rule  v.  Geddes,  23  App.  Cas.  D.  C.  48). 


476  PROMOTION. 

"  In  the  present  case  the  law  provides  that  no  officer  of  the  Navy  shall  be  promoted 
to  a  higher  grade  'until  his  mental,  moral,  and  professional  fitness  to  perform  all  his 
duties  at  sea  have  been  established  to  the  satisfaction  of  a  board  of  examining  officers 
appointed  by  the  President'  (Section  14%,  1497,  R.  8.).  The  same  rule,  therefore, 
applies  to  the  officer's  moral  qualifications  as  to  his  mental  and  professional  qualifi- 
cations. All  alike  must  be  'established '  to  the  satisfaction  of  the  board.  The  result 
of  failing  morally  is  discharge  under  the  act  of  [August  5]  1882  [22  Stat.  286];the  result 
of  failing  professionally  is  suspension  from  promotion  or  discharge  under  section  1505, 
R.  S.  [as  amended  by  the  act  of  March  11, 1912.  37  Stat.  73].  There  is  no  reason  for  a 
distinction  with  respect  to  the  burden  of  proof  as  to  the  method  of  determining  the 
candidate's  moral  and  his  professional  qualifications,  even  if  such  a  distinction  were 
possible  under  the  law. 

"Much  might  be  said  regarding  the  deplorable  results  which  must  follow  from  a 
construction  of  the  law  requiring  that  an  officer's  unfitness  for  promotion  be  proved 
by  the  Government  beyond  a  reasonable  doubt.  However,  such  a  construction 
would  so  obviously  not  'promote  the  efficiency  of  the  Navy'  that  comment  thereon 
is  not  deemed  necessary/'  File  26260-1392,  26260-697,  J.  A.  G.,  June.  29,  1911,  pp. 
31-33. 

The  laws  relating  to  examinations  prior  to  promotion  are  not  in  the  affirmative 
providing  that  all  officers  of  the  Navy  under  certain  conditions  shall  be  examined  for 
promotion,  but  are  in  the  negative,  viz:  that  "No  officer  shall  be  promoted  to  a 
higher  grade  on  the  active  list  of  the  Navy  *  *  *  until  he  has  been  examined  by  a 
board  of  naval  surgeons  and  pronounced  physically  qualified  to  perform  all  his  duties 
at  sea  (1493  R.S.).  Similar  provisions  are  made  with  reference  to  professional  exami- 
nation (1496  R.  S.).  File  27231-63,  J.  A.  G.,  May  27, 1915. 

20.  Same — The  onus  of  establishing  professional  fi,tness  shall  be  held  to  rest  entirely  upon 

the  officer  under  examination.  The  mental  and  moral  fitness  of  the  candidate  shall 
be  assumed  unless  a  doubt  shall  be  raised  on  either  head,  in  the  mind  of  any  member 
of  the  board,  from  the  answers  contained  in  any  of  the  interrogatories  or  reports  on 
fitness,  from  the  general  reputation  of  the  candidate,  or  from  other  sources  of  evidence 
of  record.  It  shall  be  held  obligatory  upon  any  member  of  the  board  to  decline  to 
recommend  the  promotion  of  an  officer  until  he  is  satisfied  of  the  officer 's  entire  mental, 
moral,  and  professional  fitness  for  promotion.  The  board,  while  careful  not  to  do 
injustice  to  any  officer  regarding  whom  there  Is  any  doubt,  shall  take  equal  care  to 
safeguard  the  honor  and  dignity  of  the  service,  recommending  no  officer  for  promotion 
as  to  whose  fitness  a  doubt  exists.  (R-334(10)).  File9020-03,  J.  A.  G.,  Nov.  2, 1903, 
p.  8;  13  J.  A.  G.  139.  See  also  NAVAL  EXAMINING  BOARDS,  11. 

21.  Same— During  the  examination  of  a  Marine  officer  for  promotion  the  Marine  Examining 

Board  had  under  consideration  a  telegram  containing  alleged  false  statements  by  the 
candidate.  The  candidate  contended  "  that  in  order  to  prove  the  offense  charged,  it 
is  necessary  to  show  that  at  the  time  the  telegram  was  sent  he  knew  the  statements 
therein  to  be  false,"  and  furthermore  claimed  "that  the  charge  is  not  proved  beyond 
a  reasonable  doubt,  and  that  he  should  be  given  the  benefit  of  such  doubt." 

The  connection  which  the  Board  had  under  consideration  in  connection  with  this 
telegram  was  whether  the  candidate  had  the  moral  qualifications  for  promotion. 

A  doubt  had  been  raised  in  the  minds  of  the  members  of  the  Board  as  to  the  candi- 
date's moral  qualifications  by  reason  of  his  having  sent  this  telegram,  and,  under  the 
provisions  of  Navy  Regulations  R-1766  (10)  [Navy  Regulations,  1913,  R-334  (10)  j  it 
was  incumbent  upon  the  candidate  to  dispel  it.  To  do  this  it  was  necessary  for  him 
to  show,  not  that  ne  did  not  know  the  telegram  to  be  false,  but  that  he  knew,  or  with 
sufficient  reason  believed,  it  to  be  true.  This  he  failed  to  do.  13  J.  A.  G.  140;  File 
9020-03,  J.  A.  G.  Nov.  2, 1903,  p.  10. 

22.  Bureau  chiefs.   See  BUREAU  CHIEFS. 

23.  Candidate  as  a  witness.   See  NAVAL  EXAMINING  BOARDS,  23-26. 

24.  Candidate's  status— "The  proceedings  of  examining  boards  in  cases  of  promotions 

can  not  be  assimilated  to  criminal  or  court-martial  proceedings,  which  they  in  no  sense 
resemble,  and  the  rules  of  evidence  which  apply  to  the  latter  are  not,  in  general, 
applicable  to  the  former.  The  candidate  stands  in  the  position  of  an  applicant  for 
an  office ;  it  is  for  him  to  show  that  he  has  the  necessary  qualifications,  and  any  reason- 
able doubt  that  may  arise  out  of  the  evidence  is  to  be  resolved,  not  in  his  favor,  but 
in  favor  of  the  Government."  13  J.  A.  G.  141;  File  9020-03,  J.  A.  G.,  Nov.  2,  1903, 
p.  10.  See  also  NAVAL  EXAMINING  BOARDS,  11. 


PROMOTION.  477 

25.  Challenges— Non-medical  members— Candidate  entered  a  challenge  to  a  non-medical 

member  of  a  marine  examining  board  on  ground  that  owing  to  their  former  official 
relations  the  member  would  be  unable  to  give  him  "an  impartial  examination." 
Objection  sustained.  Candidate  objected  to  mem  ber  ordered  to  relieve  above  member 
on  ground  that  he  had  been  a  member  of  a  general  court-martial  which  tried  him  two 
weeks  before.  Challenge  sustained.  Candidate  made  a  third  challenge  of  a  member 
on  ground  that  owing  to  their  "relations  both  personal  and  official"  he  could  not 
give  "an  impartial  examination."  Challenge  not  sustained.  The  board  was  then 
dissolved  and  a  new  board  convened.  File  26260-308  a,  b,  Sec.  Navy,  April  8, 
1909;  829-M,  Sec.  Navy,  April  14,  1909. 

26.  Same — All  members  present  to  consider  validity  of  challenges.    File  26260-308  (Marine 

Examining  Board  record). 

27.  Same— Medical  members— The  candidate  entered  an  objection  to  a  medical  member 

of  a  Marine  examining  board  sitting  as  a  member  of  the  board  when  it  resolved  itself 
into  a  Marine  retiring  board.  The  reason  assigned  was  that  said  member  had  formed 
and  expressed  an  opinion  on  the  merits  of  the  case  based  on  the  findings  of  the  can- 
didate's entire  medical  history,  etc.  The  challenged  member  replied  that  he  was 
perfectly  able  to  make  a  fair  report  in  the  case  and  that  he  was  open  to  conviction  if 
any  further  evidence  was  submitted.  The  challenge  was  sustained.  File  26260- 
2076:2  (Marine  Examining  Board  record). 

28.  Chief  carpenter— With  Civil  War  sen-ice.    See  CIVIL  WAB  SERVICE,  C. 

29.  Chiefs  of  Bureaus.   See  BUREAU  CHIEFS. 

30.  Civil  courts.   See  MARINE  EXAMINING  BOARDS,  3. 

31.  Civil  engineers.   See  APPOINTMENTS.  13. 

32.  Commissions.    See  COMMISSIONS. 

33.  Conditional  promotion.    See  PROMOTION,  67. 

34.  Congress— May  stop  promotion  or  abolish  "offices"  entirely.    See  "OFFICE,"  16; 

APPOINTMENTS,  8. 

35.  Same — Restoration  by  Congress  of  lost  numbers.    See  PROMOTION,  155, 156. 

36.  Constructive  pardon — Promotion  as  a  constructive  pardon  of  an  unexecuted  sen- 

tence.   See  PARDONS,  44. 

37.  Court  of  Inquiry  record— May  be  considered  by  an  examining  board.    13  J.  A.  G. 

299;  File  3468-04,  J.  A.  G.,  April  21,  1904,  p.  8. 

38.  Court-martial— "It  appears  from  an  examination  of  the  record  that  the  board  ap- 

parently treated  the  matter  of  the  trial  of  the  candidate  by  court-martial,  in  1892,  as 
having  been  finally  settled  by  the  action  of  the  department  and  the  President  thereon, 
without  examining  into  the  bearing  of  the  facts  developed  by  the  trial  upon  the 
candidate's  fitness  for  promotion  to  the  grade  of  paymaster  in  the  Navy.  The  de- 
partment is  of  opinion  that  in  determining  the  question  of  fitness  for  promotion 
this  is  one  of  the  considerations  that  should  be  weighed  and  reported  upon,  on  its 
merits  in  the  mind  of  the  board,  and  independently  of  the  action  of  any  reviewing  or 
mitigating  authority.  In  other  words,  neither  the  finding  of  the  court-martial  on 
the  one  hand,  nor  the  mitigation  of  its  sentence  on  the  other,  is  conclusive,  but  each  is 
entitled  to  such  consideration  at  thehands  of  the  board  as  it  sees  fit  to  give."  Decision 
»  of  the  department,  dated  December  8, 1897,  quoted  approvingly  in  File3468-04,  J.  A. 
G.,  April  21, 1904,  pp.  8-9;  13  J.  A.  G.  299-300. 

39.  Same— Record  of  trial  by  general  court-martial  introduced  in  evidence  by  candidate. 

File  26260-308, 1909. 

40.  Same — A  naval  examining  board  in  a  recent  case  found,  in  effect,  that,  "no  matter  what 

its  [the  board's]  personal  feelings  may  be,"  a  certain  candidate  was  morally  qualified 
for  promotion  because  the  members  of  a  court-martial  had  acquitted  him  of  serious 
offenses  with  which  he  had  been  charged,  and  the  board  "has  not  the  power  to  ques- 
tion the  findings  of  said  court." 

The  finding  of  the  naval  examining  board  in  this  case  was  not  satisfactory  and  was 
not  accepted  by  the  department  for  the  reason  that  it  withheld  the  very  opinion  which 
the  boara  was  ordered  to  express — that  of  the  board  itself — and  relied  instead  upon 
the  finding  of  a  general  court-martial,  which  finding  in  point  of  fact  was  disapproved 
by  the  convening  authority.  It  is  well  settled  that  the  fact  that  a  case  has  been  acted 
upon,  or  that  no  action  has  been  taken  in  certain  premises,  does  not  close  that  portion 
of  an  officer's  record  to  which  it  relates  in  such  a  manner  as  to  relieve  an  examining 
board  from  the  responsibility  9f  scrutinizing  it;  and,  even  in  the  event  of  an  acquittal 
by  a  court-martial,  an  examining  board  still  has  the  duty  cast  uoon  it  by  express  pro- 
visions of  law  to  examine  into  the  facts  and  outcome  of  such  trial  in  order  to  determine 
for  itself  the  effect,  if  any,  that  should  be  given  thereto  with  reference  to  the  officer's 
qualifications  for  promotion.  (File  587S-97;  26260-697;  26260-1392.) 


478  PROMOTION. 

Moreover  the  finding  of  a  court-martial,  even  if  approved,  would  not  be  conclusive 
upon  an  examining  board  for  the  reason  that  a  court-martial  can  not  properly  arrive 
at  a  finding  of  "guilty  "  unless  the  evidence  establishes  the  guilt  of  the  accused  beyond 
a  reasonable  doubt;  while,  on  the  other  hand,  members  of  an  examining  board  are  not 
required  to  be  satisfied  beyond  a  reasonable  doubt  that  a  candidate  is  not  qualified 
for  promotion,  but  instead  are  forbidden  to  recommend  any  officer  for  promotion  "as 
to  whose  fitness  a  doubt  exists."  In  other  words,  before  a  court-martial  every  doubt 
must  be  resolved  in  favor  of  an  accused,  while  before  an  examining  board  any  doubts 
must  be  resolved  against  the  candidate,  and  the  existence  of  even  a  doubt  as  to  his 
fitness  requires  that  he  be  not  recommended  for  promotion.  File  26200-3342:1,  Sec. 
Navy,  April  7, 1916;  C.  M.  O. 13, 1916, 6-7. 

41.  Same — "  A  naval  examining  board  has  authority  and  exercises  functions  as  extensive 

in  their  nature  as  those  exercised  by  courts-martial  themselves,  and  in  its  considera- 
tion of  an  officer's  qualifications  for  promotion  it  determines  for  itself  all  questions 
arising,  independently  of  any  disciplinary  action  that  may  or  could  have  been  taken 
in  the  premises.  (Op.  of  J.  A.  G.,  Dec.  4,  1897,  *  *  *  file  5878-97;  Brief  and 
Opinion  Book  No.  9,  pp.  296,  310,  319;  Davis  v  U.  S.,  24  C.  Cls.,  442.)  In  the  case 
of  *  *  *  ,  the  examining  board  treated 'as  closed 'certain  matters  brouglit  to  its 
attention  for  which  the  candidate  had  been  tried  and  punished  by  general  court- 
martial.  In  commenting  upon  this  action  of  the  board,  the  Judge  Advocate  General 
stated: 

'"This  doctrine  carried  to  its  logical  conclusion,  would  place  a  man  who  has  been 
repeatedly  tried  by  a  court-martial  and  adequately  punished  for  numerous  and  grave 
offenses,  upon  the  same  plane  before  an  examining  board  as  an  officer  of  unblemished 
record.  Is  it  conceivable  that  the  only  cases  in  which  the  trial  and  conviction  of  an 
officer  should  be  considered  by  an  examining  board  are  those  in  which  the  board  is 
satisfied  that  he  has  not  received  adequate  punishment  and,  ifiustice  is  to  be  done, 
requires  to  be  further  dealt  with  by  having  promotion  denied?  Assuredly  not.  It 
is  not  the  function  of  an  examining  board  to  supplement  the  action  of  a  court-martial, 
and  promotion  should  never  be  withheld  as  a  measure  of  punishment.  This  prin- 
ciple can  not  be  too  clearly  enunciated.  But,  on  the  other  hand,  it  is  by  no  means 
repugnant  to  the  principles  of  justice,  and  it  is  essential  to  the  interests  of  naval  disci- 
pline and  the  establishment  and  maintenance  of  a  high  standard  in  the  service,  that 
trial  and  conviction  by  court-martialshould  be  recognized  as  possible  obstacles  to  ad- 
vancement which  should  be  gravely  weighed  by  examining  boards.  The  fact  that  a 
case  has  been  finally  acted  upon  by  the  highest  authority,  or  that  no  action  whatever 
has  been  taken,  does  not  close  that  portion  of  the  officer's  record  to  which  it  relates  in 
such  a  manner  as  to  relieve  an  examining  board  from  the  responsibility  of  scruti- 
nizing it.  Where  an  officer's  record  is  found  not  good,  it  seems  to  me  then  to  become 
the  especial  duty  of  the  board  to  make  a  thorough  and  exhaustive  examination. 
It  should  be  well  understood  that  positions  of  high  honor  and  responsibility  in  the 
American  Navy  are  to  be  attained^  only  by  men  of  good  character  and  ability,  and 
that  such  rewards  are  not  open  to  those  who  have  been  convicted  of  grave  offenses, 
and  whose  record  is  open  to  serious  criticism.' "  File  26260-1392, 262GO-()97,  J.  A.  G., 
June  29,  1911,  pp.  14-15. 

42.  Same— Even  where  a  general  court-martial  acquits  accused,  the  examining  board 

should  consider  the  facts  independent  of  such  acquittal  or  the  remarks  of  the  conven- 
ing and  reviewing  authorities.  See  NAVAL  EXAMINING  BOARDS,  15;  PROMOTIONS,  45. 

43.  Same — The  board  is  in  no  sense  a  court  before  which  the  candidate  is  on  trial  for  his 

misdeeds.    See  NAVAL  EXAMINING  BOARDS,  8. 

44.  Same^-With  reference  to  the  authority  of  an  examining  board  to  consider  the  pro- 

ceedings of  a  court-martial  and  other  facts  shown  by  the  officer's  record  bearing  upon 
his  moral  fitness  for  promotion,  a  civil  court  stated:  "The  board  was  charged  with 
the  duty  of  examining  into  his  mental,  moral,  and  professional  qualifications  for  ad- 
vancement. What  better  evidence  could  it  have  of  these  qualifications  than  the 
candidate 's  actual  career  in  his  then  grade.  It  was  natural  and  proper  for  the  board 
to  look  into  his  record.  If  a  good  officer  he  would  proudly  rely  upon  it  and  demand 
its  examination  as  a  right. '*  File  26260-3342:1,  Sec.  Navy,  Mar.  27, 1916,  p.  2. 

45.  Same— The  question  of  an  officer's  amenability  to  trial  by  court-martial  for  acts 

affecting  his  moral  fitness  can  not  have  any  bearing  upon  the  question  novy  under 
consideration,  for  should  the  officer  be  so  tried  and  convicted,  or  even  acquitted,  by 
court-martial,  an  examining  board  would  still  have  the  duty  cast  upon  it  by  express 
provisions  of  law,  of  examining  into  the  facts  and  outcome  of  such  trial  in  order  to 


PROMOTION.  479 

determine  for  Itself  the  effect,  if  any,  that  should  be  given  thereto  with  reference  to 
the  officer's  qualifications  for  promotion.  File  26260-697,  26200-1392,  J.  A.  G.,  June 
29, 1911,  p.  17;  26260-3342:1,  Sec.  Navy,  Mar.  27, 1916,  p.  2. 

46.  Same — The  fact  that  a  case  has  been  finally  acted  upon  by  the  highest  authority,  or 

that  no  action  whatever  has  been  taken,  does  not  close  that  portion  of  the  officer's 
record  to  which  it  relates  in  such  a  manner  as  to  relieve  an  examining  board  from 
the  responsibility  of  scrutinizing  it.  Where  an  officer's  record  is  found  not  good  it 
seems  then  to  become  the  especial  duty  of  the  board  to  make  a  thorough  and  ex- 
haustive examination.  File  5878-97;  26260-3342:1,  Sec.  Navy,  Mar.  27, 1916,  p.  2. 

47.  Same — "The  contention  that  such  cases  [moral]  should  be  disposed  of  by  court-martial 

proceedings  is  based  upon  an  utter  misconception  of  the  causes  involving  moral 
unfitness,  as  well  as  the  duties  and  powers  of  examining  boards.  In  the  first  place, 
as  the  history  of  the  service  shows,  moral  disqualification  in  a  vast  majority  of  cases 
is  due  to  a  series  of  matters,  each  perhaps  trivial  in  itself,  but  which,  taken  as  a  whole, 
amount  to  a  habit  sufficiently  serious  to  disqualify  an  officer  for  promotion  in  the 
United  States  Navy."  File  26260-1392, 26260-697,  J.  A.  G.,  June  29, 1911,  p.  14. 

48.  Same — "The  matter  of  determining  an  officer's  moral  fitness  for  promotion  is  not 

analogous  to  the  question  of  determining  whether  or  not  he  should  be  brought  to  trial 
by  court-martial  for  alleged  offenses.  On  the  contrary,  an  examining  board  is  re- 
quired to  report  the  opinion  of  its  individual  members  concerning  the  fitness  of  a 

n  the  candi- 
rdless  of  the 

File  26260-3628:1, 

J.  A.  G.,  Aug.  25, 1916. 

49.  Date  of  promotion— Additional  numbers.    See  ADDITIONAL  NUMBEES. 

Commissions,  dating  of.    See  COMMISSIONS,  18,  19,  40. 

50.  Same— Higher  rank— "The  giving  to  officers  of  the  higher  rank  from  the  date  of  the 

vacancies  which  are  filled  by  their  promotions  is  a  custom  which  obtains  in  all 
branches  of  the  service,  and  this  custom  has  received  the  approval  of  Congress  in 
various  enactments,  either  expressly  or  by  implication.  Nevertheless,  where  the 
filling  of  vacancies  is  discretionary  with  the  President,  the  commissions  need  not 
be  made  to  date  from  the  occurrence  of  the  vacancy  unless  the  appointing  power  so 
decides.  (File  7151-03)."  File  28687-7,  J.  A.  G.,  Oct.  7, 1916.  See  also  COMMISSIONS, 
19. 
Midshipmen.  See  APPOINTMENTS,  11. 

51.  Deafness— With  reference  to  R.  S.  1494.   See  PROMOTION,  164, 165. 

52.  Death— An  officer's  "death  occurred  after  nomination  for  promotion  but  prior  to  con- 

firmation by  the  Senate."    File  28687-4:4,  J.  A.  G.,  Oct.  30,  1916. 

53.  Debts— Any  case  of  repeated  failure  to  discharge  indebtedness  would  constitute  an 

instance  of  moral  unfitness  for  promotion.  File  26260-1392,  26260-697,  J.  A.  G., 
June  29, 1911,  p.  11. 

54.  Same — A  first  lieutenant  of  Marines  was  found  not  morally  qualified  for  promotion 

owing  to  nonpayment  of  debts;  the  finding  was  approved  by  the  Secretary  of  the 
Navy  June  21,  1909,  and  the  officer  was  suspended  from  promotion  for  one  year. 
File  26260-988,  J.  A.  G.,  Aug.  5,  1910.  See  also  File  26260-308,  1909. 

55.  Same — Indebtedness  was  the  cause  of  the  moral  failure  of  a  major  upon  his  examination 

for  promotion  to  lieutenant  colonel.  File  26260-3624:3,  Sec.  Navy,  Oct.  3,  1916.  See 
also  PROMOTION,  195. 

56.  Delayed — The  promotion  of  an  officer  was  held  up  until  certain  defects  in  his  manner 

of  handling  enlisted  men,  as  shown  by  his  reports  of  fitness,  were  completely  eradi- 
cated. In  this  case  the  department  stated:  ^'In  the  opinion  of  the  department,  a 
dictatorial  and  an  unnecessary  severe  manner  in  handling  enlisted  men  is  one  of  the 
most  serious  defects  that  can  be  possessed  by  an  officer.  An  officer  is  necessarily 
charged  with  much  authority,  and  the  abuse  thereof,  more  than  any  other  one  feature 
in  an  officer's  character,  is  conclusive  as  to  his  unfitness  for  the  trust  imposed  in  him. " 
File  26260-2879:1,  Sec.  Navy,  Nov.  3, 1915;  C.  M.  O.  42, 1915, 11. 

57.  Same — The  following  authority  was  granted  in   the  case  of  an  acting  pay  clerk: 

"Authority  is  hereby  granted  to  delay  making  final  report  and  recommendation  in 
the  case  of  Acting  Pay  Clerk  *  *  *  pending  receipt  of  special  monthly  reports 
in  regard  to  his  efficiency,  and  his  habits  and  conduct,  and  especially  in  regard  to 
his  faults  as  noted  in  his  reports  on  fitness,  viz:  '  lack  of  painstaking  care  and  thor- 
oughness, and  insubordination  and  criticism  of  his  seniors,'  which  will  be  required 
of  his  commanding  officer."  File  26260-3403,  Sec.  Navy,  July  5, 1916. 

50756°— 17 31 


480  PEOMOTION. 

58.  Same— An  officer  of  the  Navy  having  been  held  up  for  six  months  in  order  that  the 

Secretary  of  the  Navy  might  receive  six  monthly  reports  from  the  candidate's  com- 
manding officer,  these  reports  turned  out  unfavorable  and  the  department  held: 
That  "irritability  and  hastiness,  especially  with  enlisted  men,  and  indolence,  are 
the  most  serious  defects  that  can  be  possessed  by"  a  young  officer.  Action  was  ac- 
cordingly suspended  in  the  case  for  six  months  and  special  monthly  reports  required 
of  the  candidate's  commanding  officer  in  regard  to  the  above-mentioned  defects. 
File  2C260-3146,  Sec.  Navy,  Apr.  15, 1916. 

59.  Same — A  Naval  Examining  Board  was  authorized  "to  delay  making  its  decision  and 

report  in  the  case  of  Passed  Assistant  Paymaster  *  *  *  for  the  period  of  one  year. 
He  will  be  retained  on  board  the  U.  S.  8.  *  *  *  and  special  quarterly  reports  will 
be  required  of  his  commanding  officer  during  said  period  in  regard  to  his  efficiency, 
and  his  habits  and  conduct."  File  26260-3319:2,  Sec.  Navy,  May  11, 1916. 

An  officer,  due  for  promotion,  may  be  kept  in  his  present  rank  for  a  year  to  see 
whether  or  not  he  keeps  sober.    File  3849-02,  J.  A.  G.,  June  6, 1902;  20  J.  A.  G.,  290. 

60.  Dental  Corps— Scope  of  examination.    File  13707-53.    See  also  DENTAL  SURGEONS,  5. 

61.  Divorce.    See  MARINE  EXAMINING  BOARDS,  3. 

62.  Domestic  trouble.   See  MARINE  EXAMINING  BOARDS,  3. 

63.  Drunkenness.    See  PROMOTION,  78,  97. 

64.  "  Due  process  of  law  " — "The  discharge  of  an  officer  under  the  act  of  [August  5],  1882 

[22  Stat.  280]  is  by  no  means  a  summary  proceeding.  His  case  is  heard  by  a  "board 
constituted  in  accordance  with  express  provisions  of  law  and  sworn  to  'honestly  and 
impartially  examine  and  report  upon  the  case  of  *  *  *  ,  now  before  the  board 
and  about  to  be  examined;'  all  matters  considered  by  the  board,  whether  affecting 
the  officer's  physical,  mental,  moral,  or  professional  qualifications  for  promotion,  are 
entered  of  record;  the  candidate,  if  his  record  shows  him  j/rima  facie  unfit  for  promo- 
tion, is  so  informed  by  the  board  and  given  an  opportunity  to  be  heard;  the  findings 
and  recommendation  of  the  board  are  expressly  stated  in  all  cases  to  be  based  upon 
matters  recorded,  and  are  so  referred  to  the  department  and  the  President  for  review. 
"If  the  constitutional  provision  relating  to  due  process  of  law  applied  to  this  case 
[officer  discharged  from  the  Navy  for  failing  morally  to  qualify  for  promotion],  there- 
fore, it  would  be  more  than  satisfied  by  the  procedure  established.  (See  In  Re  Sing, 
54  Fed.  Rep.  336;  Turner  v.  Williams,  194  U.  8.  289,  290;  Murray  v.  Hoboken  Land 
Company,  18  How.  274.)"  File  26260-1392,  26260-697,  J.  A.  G.,  June  29,  1911,  p.  31. 
See  also  "  OFFICE,"  16. 

65.  Evidence — Record  of  a  naval  examining  board  as  evidence  before  naval  courts-martial. 

G.  C.  M.  Rec.  28681,  p.  52.    See  also  NAVAL  EXAMINING  BOARDS,  12. 

66.  Same — Rules  of  evidence.    See  PROMOTION,  24. 

67.  Exigencies  of  the  service  of  a  Marine  officer  preventing  his  examination  for 

promotion  at  the  time  prescribed  by  law — The  Attorney  General  has  held  (25  Op. 
Atty.  Gen.  577)  that  the  provisions  of  vhe  act  of  February  2, 1901  (31  Stat.  755)  author- 
izes the  President  to  promote  a  Marine  officer  who  may,  through  the  exigencies  ofliis 
service,  not  be  able  to  obtain  his  examination  at  the  time  he  is  entitled  to  promotion. 
His  promotion  is  however  subject  to  examination,  and  there  is  the  further  stipulation 
that  if  the  officer  who  is  thus  promoted,  fails  in  his  examination  he  shall  be  treated  in 
the  same  manner  as  if  he  had  been  examined  prior  to  promotion.  This  conditional 
promotion  by  the  President  does  not  entitle  the  officer  to  a  new  commission,  or  to 
the  increased  pay  of  the  higher  rank,  but  merely  authorizes  the  President  when  a 
vacancy  occurs,  to  promote  the  absent  officer  who  is  thus  enabled  to  retain  his  posi- 
tion on  the  Navy  Register,  without  loss  of  precedence.  This  gives  the  officer  the 
benefit  of  the  presumption  that  when  the  opportunity  for  his  examination  arrives  he 
will  successfully  pass  it.  A  courtesy,  a  convenience,  and  practically  a  military  neces- 
sity. But  when  he  fails,  the  law  says  he  shall  be  treated  in  the  same  manner  as  if 
he  had  been  examined  prior  to  promotion.  File  26260-308/D,  J.  A.  G.,  June  4, 1909. 

68.  Same— Section  32  of  the  act  of  February  2, 1901  (31  Stat.  748,  755)  made  applicable  to 

the  Marine  Corps  by  the  act  of  July  28, 1892  (27  Stat.  321),  extends  at  most  to  the  cases 
of  officers  who  are  prevented  by  any  exigency  of  their  service  from  appearing  before 
an  examining  board,  and  is  not  for  the  benefit  of  officers  who  have  appeared  before 
such  board  but  have  been  unable  to  pass  the  required  examination.  In  other  words 
this  law  does  not  contemplate  cases  where  promotion  is  delayed  as  the  result  of  an 
examination,  but  instead  refers  to  cases  where  the  eiamination  itself  is  delayed  as  the 
result  of  an  exigency  of  the  officer's  service.  File  26521-94,  Sec.  Navy,  Mar.  6, 1914. 
See  alto  File  26521-108:2,  J.  A.  G.,  Dec.  21, 1914;  26260-2504,  Sec.  Navy,  Aug.  18, 1911, 
p.  5;  26521-125,  Sec.  Navy,  Aug.  31, 1915. 


PROMOTION.  481 

69.  Existing  grade — No  fact  which  occurred  prior  to  the  last  examination  shall  be  again 

inquired  into.    See  PROMOTION,  125-127. 

70.  Extra  numbers.    See  ADDITIONAL  NUMBERS. 

71.  Findings— The  law  does  not  empower  the  department  to  modify  the  finding  or  to  sub- 

stitute a  different  one,  and  when  this  power  of  approval  or  disapproval,  in  the  case  of 
a  marine  examining  board,  has  been  finally  fully  exercised  by  the  Secretary  of  the 
Navy,  it  is  exhausted  as  to  that  case.  File  26260-3624:2,  Sec.  Navy,  Sept.  29, 1916. 

72.  General  efficiency  of  marine  officers — A  marine  examining  board  made  the  fol- 

lowing report:  "The  board  is  of  the  opinion  that  *  *  *  has  the  physical  and  pro- 
fessional qualifications,  but  has  not  the  general  efficiency  to  perform  the  duties  of  the 
grade  to  which  he  will  be  eligible,  and  does  not.  therefore,  recommend  his  promotion 
thereto  *  *  *."  The  department  returned  the  record  to  the  board  quoting 
Naval  Instructions,  1913,  1-3669,  and  stating  that  this  article  requires  that  officers 
below  the  grade  of  major  shall  be  examined  in  the  following  order:  (a)  Mental  and 
physical;  (b)  moral;  (c)  professional,  and  that  the  report  shall  show  under  which  of 
these  heads  the  candidate's  qualifications  are  considered  satisfactory,  and  under 
which,  if  any,  they  are  unsatisfactory.  The  act  of  June  3, 1916,  requires  that  a  pro- 
fessional examination  is  required  for  major.  As  "general  efficiency"  is  shown  in 
1-3674  (11)  to  be  a  part  of  the  professional  examination,  if  the  board  should  find  the 
candidate  not  qualified  for  promotion  on  account  of  general  efficiency,  it  follows  that 
he  has  failed  professionally.  The  department,  therefore,  holds  that  the  report,  with 
facts  given,  should  state  that  the  candidate  has  been  found  mentally,  and  physically, 
and  morally,  but  not  professionally  qualified,  in  view  of  his  being  unsatisfactory  in 
"general  efficiency."  File  26260-3624,  Sec.  Navy,  Aug.  15, 1916. 

In  revision  the  board  decided  to  revoke  its  former  finding  and  to  substitute  therefor 
the  following  finding:  "The  board  is  of  the  opinion  that  *  *  *  has  the  mental 
and  physical,  but  not  the  professional  nor  moral  qualifications,  to  perform  the  duties 
of  the  next  grade  to  which  he  will  be  eligible,  and  does  not,  therefore,  recommend  his 
promotion  thereto."  See  also  File  26260-3919,  Sec.  Navy,  Nov.  2,  1916. 

73.  Grade — Promotion  in  rank  but  not  in  grade — Not  necessary  that  a  commission  be 

issued  and  the  letter  of  notification  "is  in  lieu  thereof."  File  28087-10,  Dec.,  1916. 
See  also  COMMISSIONS,  9. 

74.  Grades  limited  In  number  by  law.    See  MARINE  CORPS,  66;  PROMOTION,  109. 

75.  Held  up.   See  PROMOTION,  56-59. 

76.  Illegal  promotions.    See  COMMISSIONS,  20. 

77.  Incapacitated  for  active  duty — Due  for  promotion  but  incapacitated  for  active  duty. 

C.  M.  O.  6,  1915,16.    See  also  RETIREMENT  OP  OFFICERS,  33. 

78.  Intemperance — With  reference  to  moral  qualifications.    See  Memo.,  J.  A.  G.,  No.  1,, 

p.  43,  Dec.  6, 1884.    Seealso  R.  S.  1494;  23  Op.  Atty.  Gen.  324;  PROMOTION,  97. 

79.  Law — Allpersons  are  required  by  law  to  pass  physical,  mental,  and  professional  exami- 

nations prior  to  appointment  to  any  office  in  the  Navy.  File  5460-M),  J.  A.  G.,  Jan. 
22, 1913. 

Questions  of  law  should  be  referred  to  the  Judge  Advocate  General.  See  MARINE 
EXAMINING  BOARDS,  12. 

For  statutes  relating  to  the  promotion  of  marine  officers.    See  PROMOTION,  84, 186. 

For  statutes  relating  to  the  promotion  of  office<§of  the  Navy.  See  PROMOTION,  19, 
64,  94,  95,  102,  111,  123, 125-127, 152, 160-164,  172, 183, 190,  199,  200,  207. 

80.  Legal  right— An  officer  has  not  a  legal  right  to  be  ordered  before  a  board  of  medical 

examiners  for  promotion  instead  of  being  ordered  before  a  retiring  board,  etc.  See 
RETIREMENT  OF  OFFICERS,  33.  See  also  BOARDS  OF  MEDICAL  EXAMINERS,  6. 

81.  Loss  of  numbers— Effect  upon  an  officer  not  promoted  to  fill  a  vacancy.    See  PRO- 

MOTION, 102. 

82.  Same — A  sentence  involving  loss  of  numbers  was  mitigated  because  approval  of  com- 

plete sentence  would  cause  a  delay  in  promotion.    C.  M.  O.  5, 1915,  2. 

83.  Major  General  Commandant — Where  a  colonel  serving  a  four-year  detail  as  major 

general  commandant  under  the  provisions  of  the  act  of  December  19,  1913  (38  Stat, 
241),  was  promoted  to  fill  one  of  the  original  vacancies  in  the  grade  of  brigadier  general 
created  by  the  act  of  August  29, 1916,  he  became  an  additional  number  in  the  grade  of 
brigadier  general  as  provided  in  the  act  of  December  19, 1913  (38  Stat.  241),  thus  per- 
mitting the  appointmentof  four  other  colonels  to  the  four  vacancies  created  bytheact 
of  August  29,  1916  (39  Stat.  609).  Upon  retiring  from  the  position  of  major  general 


482  PROMOTION. 

commandant  he  would  continue  to  be  an  additional  number,  ceasing  to  be  as  soon 
as  the  grade  of  brigadier  general  is  reduced  to  the  number  authorized  by  law.  File 
28687-1,  J.  A.  G.,  August  18,  1916. 

84.  Marine  officers— Admonition— Officer    promoted    but    admonished.    See    MARINE 

EXAMINING  BOARDS,  2. 

An  officer  qualified  for  promotion— The  department  approved  this  record  and 
addressed  a  letter  to  him  calling  his  attention  to  adverse  matter  on  same  and  caution- 
ing him  to  continue  his  good  record  of  the  past  four  years  since  his  trial  by  general 
court-martial  for  "drunkenness."  File  26260-3664:1,  Sec.  Navy,  Sept.  13.  1916. 

Brigadier  general— Examination  of  colonels  for  brigadier  general.  See  PROMOTION, 
16-18,83. 

Challenges — Members  challenged.    See  PROMOTION,  25-27. 

Civil  courts — Examination  of  an  officer  when  a  suit  for  divorce  is  pending.  See 
MARINE  EXAMINING  BOARDS,  3. 

Delay  of  examination—Due  to  the  exigencies  of  the  service  of  the  officer.  See  PRO- 
MOTION, 67,  68,  85. 

Divorce.    See  MARINE  EXAMINING  BOARDS,  3. 

Domestic  troubles.    See  MARINE  EXAMINING  BOARDS,  3. 

Examinations  for  promotion  subsequent  to  March  3,  1899.  See  File  6-199;  3056-99; 
6418-00;  6779-00;  7037-00;  7123:3. 

Exigencies  of  the  service — Of  an  officer  preventing  his  examination.  See  PROMO- 
TION, 67,  68,  85. 

General  efficiency.    See  PROMOTION,  72. 

Majors  and  lieutenant  colonels — Section  24  of  the  act  of  June  3,  1916,  applies  to  the 
examination  for  promotion  of  officers  of  the  Marine  Corps  of  the  rank  of  major  and 
lieutenant  colonel,  by  virtue  of  the  act  of  July  28, 1892  (27  Stat.  321).  File  26521-144, 
Sec.  Navy,  June  24, 1916. 

Major  general  commandant.    See  PROMOTION,  83. 

Mental  qualifications.    See  PROMOTION,  86. 

Moral  and  professional  failure.    See  PROMOTION.  195. 

Moral  qualifications.    See  PROMOTION,  19-21,  94-98. 

Numbers,  loss  of—  By  suspension  from  promotion.    See  PROMOTION,  194-198. 

Physical  examination.    See  PROMOTION,  120,  121. 

Pnor  to  existence  of  vacancy.    See  PROMOTION,  131. 

Procedure — Of  a  marine  examining  board.    See  PROMOTION,  134. 

Professional  failure.    See  PROMOTION,  137-139. 

Professional  and  moral  failure.    See  PROMOTION,  195. 

Reexamination.    See  PROMOTION,  148. 

Restoration  of  numbers — Lost  by  suspension  from  promotion.    See  PROMOTION,  155. 

Retiring  boards — Marine  examining  board  resolving  itself  into  a  marine  retiring 
board.  See  PROMOTION,  27,  85,  86,  165. 

Revised  Statutes,  1494.    See  PROMOTION,  160-166. 

Staff  officers.    See  PROMOTION,  180,  181. 

Summary  of  laws  relating  to.  See  14  J.  A.  G.  131;  File  26260-153b,  J.  A.  G.,  June  4, 
1909. 

Suspension  from  promotion.    See  PROMOTION.  194-198. 

85.  Same — The  candidate  (a  caprain)  was  examined  for  promotion  to  the  grade  of  major 

but  failed  physically.  The  act  of  August  29, 1916  (39  Stat.  609)  made  him  number 
one  on  the  list  of  majors.  On  September  18, 1916,  a  major  was  suspended  from  pro- 
motion which  left  a  vacancy  for  the  candidate  in  question  in  the  grade  of  lieutenant 
colonel,  if  five  colonels  had  been  appointed  brigadier  generals.  The  President  ap- 
proved the  finding  of  the  marine  examining  board  which  had  resolved  itself  into 
a  marine  retiring  board  and  retired  the  candidate  in  question. 

"On  August  29.  1916,  Captain  *  *  *  was  the  senior  captain  in  the  Marine 
Corps.  The  Naval  Appropriation  Act  (39  Stat.  609)  of  that  date  created  a  number 
of  original  vacancies  in  the  various  grades  of  the  Marine  Corps,  and  had  the  promotions 
to  fill  the  vacanices  created  by  that  act  been  made  on  August  29, 1916,  presuming  that 
all  officers  qualified  for  promotion,  Captain  *  *  *  would  have  been  promoted 
to  the  grade  of  major  and  would  have  ranked  as  number  one  in  that  grade. 

"The  law  contemplates  that  Marine  officers  be  examined  for  promotion  anterior 
to  the  existing  of  a  vacancy  for  which  they  are  examined  (Act  of  Oct.  1,  1890,  26 
Stat.  562).  The  law  has  also  been  construed  to  intend  that  if  an  officer  should  not 
be  examined  at  the  proper  time,  and  should  later  be  examined  for  promotion  to  a 


PROMOTION.  483 

preexisting  vacancy,  he  shall  be  treated  in  the  same  manner  as  if  he  had  been  exam- 
ined prior  to  the  creation  of  the  vacancy.  (25  Op.  Atty.  Gen.  568-579;  see  also  C.  M.  O. 
29,  1916.  p.  9.) 

"  Had  Captain  *  *  *  been  examined  anterior  to  the  creation  of  the  vacancy 
for  which  he  was  later  examined  for  promotion,  and  had  the  approval  of  the  retiring 
board  in  his  case  been  dated  on  the  date  the  vacancy  occurred.  August  29,  1916  (File 
26260-1658),  it  is  evident  that  the  only  rank  to  which  his  seniority  would  entitle  him 
to  be  promoted  would  be  the  rank  of  major,  and  he  would  have  been  retired  from 
August  29,  1916,  with  that  rank. 

"To  take  into  consideration  the  changed  cpnditions  which  later  occurred,  by  reason 
of  the  failure  of  Major  *  *  *  for  promotion,  would  involve  a  departure  from  the 
rule  of  treating  officers  who  are  improperly  examined  for  promotion  after  the  vacancy 
for  which  they  are  examined  occurs,  in  the  same  manner  as  if  they  had  been  examined 
prior  to  the  creation  of  such  vacancies,  and  I  do  not  consider  that  the  rule  laid  down 
should  be  departed  from."  Accordingly  this  officer  is  entitled  to  be  retired  with  the 
rank  of  major  and  not  lieutenant  colonel,  and  it  is  unnecessary  to  consider  the  bearing 
upon  the  question  of  the  fact  that  the  grade  of  lieutenant  colonel  was  fully  occupied 
at  the  time  of  this  officer's  retirement.  File  26260-3604:2,  J.  A.  G.,  Oct.  16, 1916. 

86.  Mental  qualification  of  a  marine  officer — "The  medical membershaving found  that 

the  candidate  is  physically  but  not  mentally  qualified  for  promotion,  and  this  finding 
being  concurred  in  by  the  full  board,  the  board,  then,  in  accordance  with  the  law, 
resolved  itself  into  a  retiring  board,"  etc.  The  board  after  maturely  deliberating 
upon  the  evidence  in  the  case  decided  that  the  candidate  "is  not  mentally  qualified 
to  perform  all  the  duties  of  the  next  higher  grade,  in  the  Marine  Corps,  by  reason  of 
nervous  debility,  and  that  said  disability  is  the  result  of  an  incident  of  the  service." 
He  was  accordingly  placed  on  the  retired  list  in  accordance  with  the  act  of  October  1. 
1890  (26  Stat.  562)  and  the  act  of  July  28,  1892  (27  Stat.  321).  File  2011-3,  J.  A.G., 
July  12,  1906,  approved  by  President,  July  16,  1906.  See  also  PROMOTION,  150,  151. 

87.  Midshipmen — Promotion  of  midshipmen  when  deficient.    See  MIDSHIPMEN,  72. 

Candidates  for  commissions  in  Marine  Corps.    See  MIDSHIPMEN,  53, 55. 

Promotion  of  midshipmen  to  ensigns  when  not  recommended  by  the  Academic  Board 
of  the  Naval  Academy.  See  ACADEMIC  BOARD  OF  THE  NAVAL  ACADEMY,  4;  APPOINT- 
MENTS, 17. 

Promotion  of  midshipmen  when  physkally  incapacitated.  C.  M.  O.  6,  1915,  6.  See 
also  RETIREMENT  OF  OFFICERS,  50. 

88.  Moral  qualifications — The  burden  of  establishing  moral  fitness  is  on  the  candidate. 

See  PROMOTION,  19-21. 

89.  Same— Court-martial— Contention  that  an  officer  should  have  been  tried  by  a  court- 

martial  before  he  became  eligible  for  promotion.    See  PROMOTION,  47. 

90.  Same — Drunkenness.    See  PROMOTION,  78,  97. 

91.  Same — Indebtedness  as  a  cause  for  moral  failure.    See  PROMOTION,  53-55. 

92.  Same— Intemperance.    See  PROMOTION,  78,  97. 

93.  Same— Marine  examining  board.    See  MARINE  EXAMINING  BOARDS,  14. 

94.  Same— Prior  to  the  enactment  of  an  act  of  Augusts,  1882  (22  Stat.  286)  when  an  officer 

failed  morally  upon  examination  for  promotion,  although  otherwise  qualified,  he  was 
placed  on  the  retired  list  under  the  first  section  of  the  act  of  April  21 , 1864  ( 13  Stat .  53) , 
and  not  recommended  for  promotion  (28  Exam.  Bd.  Records,  No.  34;  Navy  Register, 

1910,  p.  174;  Davis  Admin,  v.  U.  S.,  24  Ct.  Cls.  442).    The  act  of  August  5,  1882  (22 
Stat.  286),  abolished  this  practice.    File  26260-1392,  26260-697,  J.  A.  G.,  June  29, 

1911,  p.  6. 

95.  Same— The  purpose  of  the  act  of  August  5, 1882  (22  Stat.  286)  was  to  abolish  the  practice 

of  placing  upon  the  retired  list  of  the  Navy  officers  who  had  failed  to  qualify  for  pro- 
motion by  reason  of  moral  deficiency.  File  26260-1392,  26260-697,  J.  A.  G.,  June  29, 
1911,  p.  8. 

96.  Same — Upon  the  question  of  what  constitutes  moral  unfltness  it  need  only  be  said  that 

no  specific  definition  thereof  is  desirable  or  should  be  attempted.  The  question  of 
what  constitutes  moral  unfitness  should  be  left  to  be  determined  by  a  board  of  ex- 
perienced, intelligent,  impartial,  military  experts  in  the  exercise  of  a  sound  discretion. 
(SeeSwaimv.  U.  S.,28Ct.  Cls.  173.228.)  File  26260-1392,  26260-697.  J.  A.  G.,  June  29, 
1911,  pp.  10-11. 

97.  Same — Where  the  board  determines  that  it  appears  prima  facie  that  the  candidate  is 

not  morally  qualified  for  promotion  by  reason  of  his  own  misconduct  (or,  drunken- 
ness, etc.)  he  should  be  called  before  the  board  and  given  an  opportunity  to  be 
heard  upon  the  charges  against  him.  File  26260-3342: 2,  Sec.  Navy,  June  2, 1916. 


484  PROMOTION. 

98.  Same — (1 )  The  moral  fitness  of  the  candidate  shall  be  assumed  unless  a  doubt  shall  be 

raised  by  evidence  of  record  or  from  the  general  reputation  of  the  candidate. 

(2)  If  the  moral  fitness  of  the  candidate  is  not  assumed,  he  shall  be  furnished  full 
information  as  to  any  allegations  concerning  his  moral  conduct,  names  of  accusers  and 
witnesses,  and  documentary  evidence  against  him;  he  shall  be  allowed  to  examine 
such  witnesses  and  evidence  and  to  testily  and  introduce  evidence  in  his  own  behalf. 

(3)  All  proceedings  during  the  examination  as  to  his  moral  fitness,  except  delibera- 
tions on  the  findings  and  on  interlocutory  questions,  shall  be  in  the  presence  of  the 
candidate  and  his  counsel,  (if  he  has  counselpresent). 

(4)  The  board  shall  decide  concerning  the  officers  or  other  persons  to  whom  inter- 
rogatories shall  be  sent,  and  shall  decide  upon  the  scope  and  character  of  such  inter- 
rogatories, but  no  inquiry  as  to  matters  of  opinion  shall  be  put  to  any  officer  who  is 
junior  in  rank  to  the  candidate. 

(5)  If  the  candidate  requests  that  witnesses  be  examined  in  his  behalf,  the  board 
shall,  so  far  as  such  request  appears  to  the  board  to  be  reasonable,  examine  the  wit- 
nesses in  his  presence  or  by  taking  their  depositions. 

(6)  The  board  shall  not  inquire  into  nor  consider  any  fact  which  occurred  prior  to 
the  last  examination  of  the  candidate  whereby  ho  was  promoted  and  which  has  been 
inquired  into  and  decided  upon,  unless  such  fact  continuing  shows  his  present  unfit- 
ness  for  promotion.     [See  PROMOTION,  125-128.] 

(7)  The  candidate  shall  be  given  an  opportunity  to  make  a  statement  with  reference 
to  his  moral  fitness,  which  statement,  if  made,  shall  be  appended  to  the  record 
(1-3673). 

99.  Moral  and  professional  failure  of  a  Marine  officer— A  major  upon  examination 

for  promotion  failed  both  morally  and  professionally  subsequent  to  August  29, 1916. 
File  26260-3625,  Sept.  13,  1916.  See  alio  PROMOTION,  195. 

100.  Naval  Militia— Aeronautic  duties— Scope  of  examinations  for  officers  and  enlisted  men 

of  the  Naval  Militia  for  aeronautic  duties.    See  NAVAL  MILITIA,  12. 

District  of  Columbia— Promotions  of  officers  in  the  Naval  Militia  of  the  District  of 
Columbia.  See  NAVAL  MILITIA,  8. 

Judge  Advocate  General— Examining  boards  reviewed  and  reported  upon  by  the 
Judge  Advocate  General.  See  JUDGE  ADVOCATE  GENERAL,  17;  NAVAL  MILITIA,  12. 

Physical  examination.    See  NAVAL  MILITIA,  29. 

101.  Naval  officers  should  be  examined  prior  to  existence  of  vacancy.    See  PROMO- 

TION, 132. 

102.  Numbers,  loss  of — Effect  upon  officer  not  promoted  to  fill  a  vacancy— A  carpenter 

was  appointed  a  warrant  officer  April  19,  1907.  Tried  by  general  court-martial  and 
sentenced  to  lose  15  numbers,  which  reduced  him  in  the  list  of  carpenters  below  an 
officer  whose  date  of  appointment  was  January  30,  1909.  The  question  presented  is 
whether  the  officer  concerned,  if  otherwise  qualified,  is  entitled  to  promotion  under 
the  act  of  April  27.  1904  (33  Stat.  324,  346),  "after  six  years  from  date  of  warrant." 
Held:  That  this  officer,  whose  sentence  by  court-martial  has  operated  to  reduce  him 
below  other  warrant  officers  in  his  grade  of  a  later  date  of  appointment,  is  not  entitled 
to  promotion,  even  though  otherwise  qualified,  until  the  officers  who  precede  him 
in  the  list  of  carpenters  have  become  due  for  promotion.  File  17789-20,  J.  A.  G.,  Dec. 
18, 1913,  approved  by  Bu.  Nav.  and  Sec.  Navy,  Dec.  19,  1913.  Approved  by  Presi- 
dent. Feb.  18, 1914.  See  also  Bu.  Nav.  File  5796-52;  17789-20:1,  Sec.  Navy.  Feb.  18, 
1914. 

103.  Same— Restoration  by  Congress.    See,  PROMOTION,  155, 156. 

104.  Same— Sentence  involving  loss  of  numbers  mitigated  because  of  effect  upon  promotion. 

See  PROMOTION,  82. 

105.  Oath— Taken  by  members  of  a  Naval  Examining  Board.    See  PROMOTION,  64. 

106.  Objections-Challenges  of  members.    See  PROMOTION,  25-27. 

107.  Same — Objection  of  candidate  to  certain  parts  of  the  statement  of  a  challenged  member 

overruled.    File  26260-308, 1909. 

108.  Occurrences  since  last   examination  by  which  promoted.    See  PROMOTON, 

125-126. 

109.  Overfilling  grades— The  appointment  of  an  officer  of  the  Navy  toagradelimitedin  num- 

ber by  law,  would  not  be  valid  if  it  increased  the  number  of  said  grade  beyond  that 
allowed  by  law  (23  Op.  Atty.  Gen.  30,  35).  Accordingly,  Held:  That  no  promotions 
can  legally  be  made  to  the  grades  of  captain  and  commander  while  there  are  in  each 
of  said  grades  the  full  number  of  officers  allowed  by  law  including  officers  who  have 
been  examined  for  promotion  but  in  whose  cases  final  action  has  not  been  taken. 
(File  26521-67,  J.  A.  G.,  June  4,  1913;  foregoing  opinion  reconsidered  and  sustained 


PROMOTION.  485 

in  File  26521-67,  J.  A.  G.,  Dec.  4, 1913).  File  13261-486,  Sec.  Navy,  June  8, 1916,  which 
affirmed  the  principle  stated  above,  and  applied  it  to  appointments  of  midshipmen 
to  Marine  Corps  as  second  lieutenants.  See  also  File  942-310,  Bu.  Nav.,  Sec.  Navy, 
Dec.  29, 1913;  File  26521-108:2,  J.  A.  G.,  Dec.  24, 1914;  MARINE  CORPS,  66. 

110.  Pardon— Promotion  as  a  constructive  pardon  of  an  unexecuted  sentence.  See  PAEDONS, 

44. 

111.  Partial  examination— The  act  of  August  29, 1916  (39  Stat.  578),  speaks  and  is  effective 

from  its  date.  "Accordingly,  the  only  examinations  and  promotions  to  the  line 
grades  mentioned  in  it  which  can  be  made  subsequent  to  August  29,  1916,  are  those 
made  in  accordance  with  the  specific  terms  of  the  act  of  that  date."  "It  follows, 
therefore,  that,  in  any  case  where  an  officer  was  undergoing  examination  for  pro- 
motion prior  to  August  29,  1916,  and  such  examination  and  promotion  was  not 
completely  consummated  prior  to  that  date,  the  partial  examination  concerned,  upon 
the  approval  of  the  law  under  consideration,  therefore,  'became  null  and  void'  and 
'  action  at  the  present  time,  in  view  of  thischange  in  the  law,  can  carry  with  it  no  legal 
Consequences  or  penalties  such  as  would  have  obtained  had  action  been  taken  prior 
to  the  change  hi  the  law."  (File  26260-3648,  J.  A.  G.,  Sept.  22,  1916.)  File  26260- 
3663:2,  Sec.  Navy,  Oct.  9,  1916.  See  also  COMMISSIONS,  42;  PROMOTION,  129. 

112.  Pay— Beginning  of  increase  of  pay.    See  PAY, 24, 25. 

113.  Same— Increased  pay  for  advancement  in  rank — The  Comptroller  of  the  Treasury  has 

held  that  assistant  paymasters  advanced  in  rank  by  reason  of  length  of  service  are  not 
promoted  to  fill  vacancies  and  therefore  are  not  entitled  to  receive  the  increased  pay 
until  they  get  their  commissions — the  increased  pay  beginning  from  that  date.  File 
26509-4-64:1,  J.  A.  G.,  April  25,  1910,  p.  6. 

114.  Same — Pay  while  holding  a  recess  appointment.    See  PAY,  82. 

115.  Penal  statutes— The  act  of  August  5, 1882  (22  Stat.  286)  is  not  a  penal  statute.    File 

5925-03,  J.  A.  G.,  1903,  p.  5. 

116.  Physical  examination  for  promotion — Marine  officers.    See  PROMOTION,  120, 121. 

117.  Same — Naval  Militia.    See  NAVAL  MILITIA,  29. 

118.  Same— Officers  of  the  Navy.    S'ee  BOARDS  OF  MEDICAL  EXAMINERS. 

119.  Physical  failure— On  reexamination  after  professional  failure  on  first  examination. 

See  PROMOTION,  148  150-152. 

120.  Physical  failure  but  professional  examination  allowed — A  Marine  Examining 

Board  found  a  candidate  incapacitated  for  active  service  due  to  line  of  duty.  On  can- 
didate's own  request,  which  was  approved  by  the  department,  he  was  examined  pro- 
fessionally. No  action  was  taken  on  the  record  of  proceedings,  but  the  candidate 
was  ordered  to  a  naval  hospital  for  observation  and  treatment  and  then  to  be 
later  reexamined  physically  to  establish  his  fitness  for  further  active  service.  File 
26260-3459,  Sec.  Navy,  May  27,  1916.  See  also  File  26260-3432:1,  Sec.  Navy,  April 
18, 1916. 

121.  Physical  qualifications  of  marine  officers — The  medical  members  of  the  board  re- 

ported that  the  "candidate  had  the  mental  and  physical  qualifications  for  promotion 
except  that  his  vision  is  defective."  An  investigation  was  then  conducted  by  the 
board  as  to  the  physical  qualifications  of  the  candidate,  the  candidate  being  allowed 
to  have  counsel.  Upon  the  conclusion  of  the  investigation  the  board  decided  "  by  a 
majority  vote  of  the  members  of  the  Board,  not  to  adopt  the  report  of  the  medical 
members  of  the  Board,"  the  medical  members  being  present  and  voting.  The  board 
found  that  the  candidate  had  the  "physical,  mental,  moral  and  professional  qualifica- 
tions to  perform  efficiently  all  the  duties  of  the  grade  to  which  he  will  next  be  eligible, 
and  recommend  him  for  promotion  thereto."  Theactionof  the  Secretary  of  the  Navy 
»  was  as  follows:  "In  view  of  the  fact,  appearing  from  the  evidence  submitted  in  this 
case,  that  Captain  *  *  *  has,  for  the  last  five  years,  during  which  his  physical  in- 
firmity (unpaired  vision)  has  existed  in  substantially  its  present  form  and  degree, 
performed  to  the  entire  satisfaction  of  his  superior  officers  all  the  duties  to  which  he 
has  been  assigned,  including  that  of  independent  command  and  others  of  an  arduous 
and  important  nature,  I  concur  in  the  opinion  of  the  Examining  Board  that  this 
officer  has  the  physical,  as  well  as  the  other  requisite  qualifications  to  perform 
efficiently  all  the  duties  of  the  grade  to  which  he  will  next  be  eligible,  viz.,  that  of 
Major."  File  7381-03,  Sec.  Navy,  Aug.  29, 1903. 

Sections  1493  and  1494  were  made  applicable  to  the  Marine  Corps  by  the  act  of 
August  29, 1916. 

"The  mental  and  physical  fitness  of  the  candidate  [Marine  Corps]  and  all  questions 
which  arise  in  connection  therewith  shall  be  voted  upon  by  each  member  of  the  entire 
board  and  the  votes  of  a  majority  shall  decide."  (1-3670  (3).) 


486  PROMOTION. 

122.  "Physlco-mental"— Capacity  to  perform  active  service.    File  3468-04.  J.  A.  G., 

April  21,  1904,  p.  11. 

123.  " Plucking  Board"— Act  of  March  3,  1899,  Section  9  (30  Stat.  1006),  as  amended  by 

the  Act  of  August  22, 1912  (37  Stat.  328).  Repealed  by  the  act  of  March  3,  1915  (38 
Stat.  938).  See  COMMISSIONS,  42;  RETIREMENT  OF  OFFICERS,  41. 

124.  "  Preparedness  " — "All  officers  know  where  they  stand  on  the  list, and  there  should  be 

some  premium  upon  'preparedness.'  Under  present  laws  the  officer  who  is  not 
ready  suffers;  but  inasmuch  as  the  approximate  date  of  examination  can  be  computed 
in  advance  it  is  difficult  to  find  a  valid  excuse  for  failure  to  pass  professionally." 
13  J.  A.  G.  398,  1904. 

125.  Present  grade— All  records  of  the  department  bearing  upon  the  service  of  an  officer, 

in  Ms  present  grade,  who  is  undergoing  examination  for  promotion,  may  be  considered 
by  the  examining  board  in  arriving  at  its  finding  as  to  the  qualifications  of  an  officer, 
and  the  fact  that  the  President  disapproved  the  finding  of  a  former  board  to  the  effect 
that  the  candidate  was  morally  disqualified  does  not  prevent  its  consideration  upon 
a  reexamination  of  the  candidate.  File  26521-19. 

The  act  of  June  18,  1878  (20  Stat.  165),  provides:  "That  hereafter  in  the  examina- 
tion of  officers  in  the  Navy  for  promotion  no  fact  which  occurred  prior  to  the  last  ex- 
amination of  the  candidate  whereby  he  was  promoted,  which  has  been  inquired  into 
and  decided  upon,  shall  be  again  inquired  into,  but  such  previous  examination,  if 
approved,  shall  be  conclusive,  unless  such  fact  continuing  snows  the  unfitness  of  the 
officer  to  perform  all  his  duties  at  sea."  File  26521-27:1149,  J.  A.  G.,  June  23,  1914. 
See  also  File  26521-169,  J.  A.  G.,  Nov.  28, 1916,  p.  3. 

126.  Same— Occurrences  which  have  happened  since  the  examination  by  which  the  officer 

"was  promoted"  should  be  considered  by  the  board.  Therefore,  where  an  officer  has 
been  suspended  from  promotion  on  account  of  failure  in  examination,  occurrences 
that  happened  since  the  last  examination  by  which  he  was  actually  promoted,  should 
be  considered.  File  6789-04. 

127.  Same^-The  act  of  June  18,  1878,  operating  as  a  specific  restriction  upon  the  general 

provisions  of  section  1499,  contemplates  only  the  normal  case  of  the  officer  who  re- 
mains in  the  service  and  passes  successively  from  the  lower  to  the  higher  grades  after 
an  examination  for  promotion  to  each-  grade.  The  Court  of  Claims,  in  the  case  of 
Davis,  Admr.,  v.  The  United  States  (24  Ct.  Cls.  442),  in  commenting  upon  the  pro- 
visions of  sections  1499, 1502,  and  1503,  Revised  Statutes,  in  connection  with  the  act 
of  June  18,  1878,  said: 

"Those  statutes  opened  up  the  whole  past  life  of  an  applicant  for  promotion,  and 
made  him  liable  at  each  step  in  his  career  to  a  fresh  investigation,  long  after  the  event, 
of  charges  before  'inquired into  and  decided  upon'.  To  remedy  any  injustice  this 
may  have  caused,  probably,  the  statute  of  June  18.  1878,  was  passeo:.  This  statute 
places  a  bar  in  the  way  of  a  new  examination  into  old  accusations  or  facts,  and  starts 
the  officer  in  his  higher  grade  with  a  clean  record,  unless  such  fact  be  a  continuing  one, 
showing  the  candidate 's  unfitness  to  '  perform  all  his  duties  at  sea ' .  But  the  act  goes 
no  further;  it  leaves  the  examining  board  otherwise  subject  to  the  mandates  of  section 
1499  of  the  Revised  Statutes,  which,  thus  limited,  authorizes  an  examination  of  the 
files  and  records  of  the  Navy  Department  concerning  the  officer's  career  in  the  grade 
from  which  he  is  at  the  present  time  seeking  promotion." 

"What  better  evidence  could  it  have  of  these  qualifications  than  the  candidate's 
actual  career  in  his  then  grade.  It  was  natural  and  proper  for  the  board  to  look  into 
his  record.  If  a  good  officer,  he  would  proudly  rely  upon  it  and  demand  its  examina- 
tion as  a  right.  *  *  *  It  [the  act  of  June  18,  1878]  does  not  take  away  from  the 
meritorious  officer  the  right  to  produce  his  record  of  faithful,  diligent,  and  gallant 
service  in  the  rank  in  which  at  the  time  he  is  serving,  as  proof  of  fitness  for  advance- 
ment to  higher  dignities  and  greater  responsibilities;  nor  does  it  take  away  from  the 
naval  service  the  right  to  examine  into  that  record  for  the  purpose  of  promoting 
meritorious  officers  and  of  denying  advancement  to  those  who  have  failed  to  reach 
the  standard  of  competency  and  trustworthiness  demanded  from  all  officers  in  this 
dignified  and  honorable  career."  File  26521-27:1149,  J.  A.  G.,  June  23, 1914. 

Sections  1496-1504  "opened  up  the  whole  past  life  of  an  applicant  for  promotion, 
and  made  him  liable  at  each  step  in  his  career  to  a  fresh  investigation,  long  after  the 
event,  of  charges  before  '  inquired  into  and  decided  upon ' .  To  remedy  any  inj  ustiee 
this  may  have  caused,  probably,  thestatute  of  June  18, 1878  [20  Stat.  165],  was  passed. 
This  statute  places  a  bar  In  the  way  of  a  new  examination  into  old  accusations  or  facts, 
and  starts  the  officer  in  his  higher  grade  with  a  clean  record,  unless  the  fact  be  a  con- 
tinuing one,  showing  the  candidate's  unfitness  to  'perform  all  his  duties  at  sea.'" 
(Davis  v.  U.  S.,  24  Ct.  Cls.  442.)  File  26521-169,  J.  A.  G.,  Nov.  14, 1916,  p.  2. 


PROMOTION.  487 

"Not  only  did  the  act  of  1878  establish  a  specific  legislative  policy  with  reference  to 
the  examination  of  officers  for  promotion,  but  that  policy  was  in  itself  consistent  and 
in  entire  harmony  with  the  established  doctrine  of  resjuaicata.  which  has  always  been 
of  general  application  in  the  administrative  as  well  as  the  judicial  department  of  our 
Government."  File  26521-169,  J.  A.  G.,  Nov.  14,  1916,  p.  4. 

128.  Same — Promotion  by  selection — Question  whether  act  of  June  18,  1878  (20  Stat.  165), 

applies.    See  PROMOTION  BY  SELECTION,  8. 

129.  President's  action—"  It  has  been  held  repeatedly    *    *    *    that  inasmuch  as  the  law 

requires  examination  by  a  board  and  approval  or  disapproval  by  the  President,  that 
the  President's  action  is  just  as  much  a  part  of  the  examination  as  is  the  examination 
by  the  board  itself;  the  examination  is  therefore  incomplete  up  to  the  time  it  is  ap- 
proved by  the  President.  Therefore,  an  examination  in  which  the  board  has  finished 
its  part,  but  which  has  not  yet  been  acted  upon  by  the  President,  is  as  incomplete  as 
if  the  actual  examination  before  the  board  had  not  been  completed."  File  26260-3648, 
J.  A.  G.,  Sept.  22,  1916,  citing  Jouett  v.  U.  S.,  (28  Ct.  Cls.  257,  266). 

In  the  Jouett  case  a  naval  officer  [master]  was  nominated  and  confirmed  for  promo- 
tion to  lieutenant,  "subject  to  the  required  examination  before  being  commissioned." 
The  commission  was  signed  but  not  issued.  The  officer  passed  the  required  exami- 
nation and  was  recommended  for  promotion.  But  the  President  did  not  approve  the 
report  of  the  examining  board  and  suspended  action  on  it  and  ordered  the  officer  to 
sea.  The  candidate  is  again  examined  and  the  second  board  reports  that  he  has  not 
the  moral  qualifications  for  promotion.  The  President  approves  the  report  and  ordered 
that  the  officer  be  discharged  with  one  year's  pay.  The  court  stated,  inter  alia  "The 
President's  approval  or  disapproval  of  the  findings  is,  then,  distinctly  required,  and 
it  is  contemplated  that  he  shall  examine  the  whole  records  and  findings.  Having  the 
duty  imposed  upon  him  to  approve  or  disapprove,  the  President  had  the  power  to 
suspend  action  or  to  seek  further  information;  these  are  necessary  incidents  of  the 
executive  reviewing  power.  (Swaim  v.  The  U.  S.,  ante.)  [28  Ct.  Cls.  173.]"  See 
also  PROMOTION,  111. 

President  approved  the  findings  and  recommendation  of  a  Naval  Examining 
Board  notwithstanding  the  recommendation  of  the  Judge  Advocate  General  that 
they  be  disapproved.  File  26260-1392:29,  February,  1913. 

130.  Presumption — Where  an  officer  requested  a  reconsideration  of  the  board's  findings, 

which  resulted  in  his  suspension  from  promotion  and  a  consequent  loss  of  several 
numbers,  on  the  grounds  that  he  was  ill  when  e_xamined  and  all  nis  reports  of  fitness 
were  excellent,  Held:  That  "the  presumption  is  in  favor  of  a  board  having  done  its 
full  duty."  File  26260-3314:6,  Sec.  Navy,  Aug.  25, 1916.  See  also  APPEALS,  18;  PRO- 
MOTION, 148. 

131.  Prior  to  existence  of  vacancy — The  law  requires  that  Marine  officers  be  examined 

for  promotion  prior  to  the  existence  of  the  vacancy  for  which  they  are  examined. 
(Act  of  Oct.  1, 1890,  26  Stat.,  662.)  The  law  also  provides  that  when  the  examina- 
tion is  delayed  through  the  exigencies  of  the  service,  if  the  officer  fails,  he  shall  "  be 
treated  in  the  same  manner  as  if  he  had  been  examined  prior"  to  the  creation  of  the 
vacancy.  (Act  of  Feb.  2,  1901,  sec.  32,  31  Stat.,  756.)  Accordingly,  where  an 
officer,  examined  after  the  vacancy  occurs,  fails  physically  he  is  properly  given  the 
rank  of  the  higher  grade  from  the  date  of  the  vacancy  to  which  he  would  have  been 
promoted  if  qualified.  File  26260-3237:  1,  J.  A.  G.,  Aug.  25, 1915;  C.  M.  O.  29,  1915, 9. 
See  also  File  2626<>-1514. 

132.  Same — In  all  cases  in  the  Navy  where  it  is  not  absolutely  impossible  to  do  so,  exami- 

nations for  promotion  should  be  held  prior  to  the  occurrence  of  the  vacancy,  as  is 
required  by  express  provisions  of  law  with  reference  to  promotions  in  the  Army  and 
Marine  Corps.  (Act  of  Oct.  1,  1890,  26  Stat.,  562,  and  act  of  Feb.  2,  1901,  sec.  32, 
31  Stat.,  756.)  File  26260-2605:2,  J.  A.  G.,  Aug.  17,  1915,  p.  5;  C.  M.  O.  29,  1915,  9. 

133.  Probation— Officers  placed  on  probation.    See  PROMOTION,  56-59. 

134.  Procedure— It  is  the  duty  of  a  Marine  Examining  Board  to  report  the  facts  as  found. 

The  next  step  is  to  lay  its  report,  with  its  finding  and  recommendation,  before  the 
department,  lor  its  approval  or  disapproval,  or  if,  in  the  department's  judgment,  the 
report  has  not  been  completed  or  the  finding  not  justified  by  the  facts,  the  record  of 
proceedings  would  then  be  returned  for  further  inquiry,  or  hearing,  or  correction  of 
its  proceedings.  The  law  does  not  empower  the  department  to  modify  the  finding  or 
to  substitute  a  different  one,  and  when  this  power  of  approval  or  disapproval  has  been 
finally  fully  exercised  by  the  department,  it  is  exhausted  as  to  that  case.  File  26260- 
3625. 


488  PROMOTION. 

Under  the  act  of  July  28,  1892  (27  Stat.  321),  the  medical  members  of  the  board 
"examine  the  candidate  as  to  his  physical  and  mental  fitness  for  promotion  and  make 
a  written  report  thereof  to  the  entire  board.  The  mental  and  pnysical  fitness  of  the 
candidate,  and  all  questions  which  arise  in  connection  therewith,  are  then  voted  upon 
by  each  member  ofthe  entire  board.  This  part  of  the  examination  precedes  the  moral 
and  professional  examination.  When  the  candidate  is  found  mentally  and  physically 
qualified  for  promotion,  the  medical  members  are  excused  from  further  attendance 
with  the  board."  File  28687-14,  J.  A.  G.,  Dec.  14,  1916. 

135.  Professional — An  officer  of  the  Navy  having  failed  professionally,  was  suspended  from- 

promotion  for  six  months  and  suffered  loss  of  numbers.  File  26260-3091:1,  J.  A.  G., 
Nov.  3, 1915,  and  Nov.  19, 1915. 

136.  Same — The  onus  or  burden  of  establishing  professional  fitness  is  on  the  candidate. 

See  PROMOTION,  19, 20, 21. 

137.  Same— Prior  to  the  approval  ofthe  act  of  August  29, 1916  (39  Stat.  611),  Marine  officers 

failing  professionally  were  suspended  from  promotion  for  one  year.  File  26260-153  c, 
Sec.  Navy,  June 7, 1909; 26260-2201:3,  Sec.  Navy,  Oct.  25, 1913; 26260-2404:1,  Sec.  Navy, 
Aug.  18, 1914.  See  also  PROMOTION,  196. 

138.  Same— Subsequent  to  the  approval  of  the  act  of  August  29, 1916  (39  Stat.  611),  Marine 

officers  failing  professionally  are  suspended  from  promotion  and  suffer  the  loss  of 
numbers  as  provided  by  the  act  of  August  29,  1916  (39  Stat.,  611).  See  PROMOTION, 
194,  195. 

139.  Same — Where  a  Marine  second  lieutenant  failed  professionally  subsequent  to  August 

29, 1916,  he  suffered  a  loss  of  eight  numbers,  and:  will  be  reexamined  as  soon  as  expe- 
dient after  the  expiration  of  six  months.  File  26260-3919,  Sec.  Navy,  Nov.  14,  1916. 

140.  Professional  and  moral  failure  of  a  Marine  officer.    See  PROMOTION,  99. 

141.  Promotion — "A  promotion  in  the  Army  is  an  appointment  to  a  higher  officer  therein." 

(30  Op.  Atty.  Gen.  177).    File  28687-4:1,  J.  A.  G.,  Sept.  12, 1916,  p.  5. 

142.  Property  right— "In  this  state  oi  the  law  [prior  to  Aug.  29,  1916,  39  Stat.  556],  an 

officer's  right  to  promotion,  while  not  of  course  a  property  right,  came  to  be  regarded 
as  something  at  least  closely  akin  thereto,  and  the  deprivation  of  this  right  was  looked 
upon  as  a  serious  punishment."  But  see  PROMOTION,  213.  See  also  "OFFICE,"  16. 

143.  Punishment — Promotion  should  never  be  withheld  as  a  punishment.    See  PRO- 

MOTION, 41. 

144.  Reasonable  doubt.    File  5925-03,  J.  A.  G.,  1903,  p.  5.    See  also  PROMOTION,  20,  21, 

24,  98. 

Theory  of  Government  proving  candidate's  unfitness  for  promotion  beyond  a 
reasonable  doubt.  See  PROMOTION,  19. 

145.  Recommending  promotion — The  members  of  an  examining  board  are  forbidden  to 

recommend  any  officer  for  promotion  as  to  whose  fitness  a  doubt  exists.  File  26260- 
3628:1,  J.  A.  G.,  August  25,  1916.  See  also  PROMOTION,  20. 

146.  Records  of  officers.   See  NAVAL  EXAMINING  BOARDS,  11;  PROMOTION,  125-128. 

147.  Recorder  and  members— Failing  to  sign  record.  '  File  26260-3464,  Sec.  Navy,  May  27, 

1916. 

148.  Reexamination — A  second  lieutenant  failed  professionally  for  promotion  to  first 

lieutenant.  At  the  time  he  was  reexamined  there  was  a  vacancy  awaiting  him  in 
the  cap  tain's  grade,  due  to  the  act  of  August  29, 1916.  (39  Stat.  609.)  Held:  That  this 
officer,  "who  has  been  suspended  from  promotion  to  first  lieutenant  by  reason  of  his 
failure  to  qualify  professionally  should  be  reexamined  for  promotion  to  first  lieu- 
tenant and  should  he  successfully  pass  such  examination,  he  should  then  be  examined 
for  promotion  to  captain."  File  26260-3314:5,  Sec.  Navy,  July  21,  1916.  See  also 
APPEALS,  18;  PROMOTION,  130. 

149.  Same— An  officer  who  had  failed  physically  ("not  line  of  duty"),  failed  professionally 

on  reexamination  and  was  discharged  with  one  year's  pay.  File  26260-2048:1,  Sec. 
Navy,  September  23, 1913. 

150.  Same — A  Marine  officer  was  found  professionally  not  qualified  for  promotion  and  after 

one  year's  suspension  was  found  physically  not  qualified  for  promotion  owing  to 
disabilities  in  line  of  duty,  under  section  3  of  the  act  of  October  1, 1890.  (26  Stat.  562.) 
Held:  That  he  should  be  retired  in  next  higher  grade.  File  26260-3314:7,  Sec.  Navy, 
November,  1916.  See  also  File  878-4,  1903;  7331. 

151.  Same — A  Marine  officer  was  found  professionally  not  qualified  for  promotion  and 

after  one  year's  suspension  was  found  physically  not  qualified  for  promotion  owing 
to  disabilities  in  line  of  duty.  Notwithstanding  this,  his  examination  was  continued 
and  he  was  found  qualified  m  all  other  respects.  He  was  retired  in  next  higher  grade. 
File  878-4, 1903;  7331.  (Udell's  Case.)  See  also  File  26260-3314:7,  1916;  PROMOTION, 
S6. 


PROMOTION.  489 

152.  Same-^A  machinist  appeared  for  examination  for  promotion  to  the  grade  of  chief 

machinist  and  was  found  mentally,  morally,  and  physically,  but  not  professionally, 
qualified  for  advancement.  He  was  accordingly  suspended  for  one  year.  Upon 
reexamination  the  candidate  was  found  mentally  and  morally,  but  neither  pro- 
fessionally nor  physically,  qualified.  Held:  That  "the  records  of  proceedings  ofthe 
examining boardsinthiscase  should  be  submitted  to  the  President  with  recommenda- 
tion that  action  upon  the  findings  of  the  boards  be  withheld,  and  that  the  candidate 
be  ordered  to  appear  before  a  naval  retiring  board  to  determine  whether,  within  the 
terms  ofthe  act  of  March  4, 1911  (36  Stat.  1267),  he  is  incapacitated  for  service  iy  reason 
of  physical  disability  contracted  in  the  line  of  duty.  File  26260-1294,  J.  A.  G.,  June 
10, 1911.  But  see  File  26260-3193:2,  December,  1916. 

153.  Same — In  the  event  of  failure  of  an  Army  or  Marine  officer  to  pass  the  first  examination 

for  promotion,  the  procedure  of  the  second,  or  reexamination ,  is  exactly  similar  to  the 
first.  "The  procedure  upon  both  the  first  examination  and  upon  the  reexamination 
is  exactly  similar  and  *  *  *  it  appears  to  have  been  the  intention  of  the  de- 
partment that  this  law  should  operate  in  the  Navy  in  the  same  manner  as  it  is  adminis- 
tered in  the  Army  and  Marine  Corps.  15  J.  A.  G.  239;  File  26260-1294,  J.  A.  G.,  June 
10, 1911,  p.  4. 

154.  Res  judicata.    See.  COMMISSIONS,  14-16;  PROMOTION,  127;  RES  JUDICATA,  12. 

155.  Restoration  of  numbers  lost  by  suspension — _A  Marine  officer  requested  per- 

mission of  the  Secretary  of  the  Navy  to  secure  the  introduction  of  a  bill  in  Congress 
providing  for  the  restoration  of  numbers  lost  by  suspension  from  promotion.  Permis- 
sion was  granted  to  take  such  proper  means  as  the  officer  deemed  necessary.  He  was 
informed,  however,  "  that  this  permission  is  not  to  be  construed  as  indicating  the  de- 
partment's attitude  toward  the  proposed  bill."  (File  26509-61,  Sec.  Navy,  Nov.  9, 
1911. )  A  similar  request  was  later  received  from  the  same  officer  and  the  department 
replied  that  the  permission  granted  you  on  November  9,  1911,  "to  take  such  proper 
means  as  you  deem  necessary  in  the  premises  "  had  not  been  revoked.  File  26255- 
248,  Sec.  Navy,  July  7, 1916. 

156.  Samey-The  department  disapproved  legislation  proposed  in  behalf  of  a  lieutenant 

(junior  grade)  to  replace  him  to  the  list  in  line  of  officers  from  which  dropped  and  lost 
numbers  by  reason  of  failing  to  pass  promotion  examinations  from  midshipman. 
The  department  also  recommended  that,  should  the  bill  proposed  for  this  officer  be 
passed,  it  be  amended  so  as  to  provide  that  he  take  the  examination  required  by  law 
before  being  promoted  pursuant  to  the  terms  of  the  bill  as  drafted.  File  26255-232, 
Sec.  Navy,  Feb.  1,  1912. 

157.  Retirement  upon  examination — If  an  officer  fails  physically  upon  examination  for 

promotion  and  is  retired  therefor,  he  takes  retired  rank;  only  in  the  grade  for  promotion. 
If,  during  the  time  action  on  his  case  is  considered,  he  becomes  due  for  promotion  to 
a  still  higher  grade,  he  will,  nevertheless,  be  retired  in  the  lower  grade  unless  he  be 
ordered  up  for  examination  for  promotion  to  the  higher  grade.  In  all  cases  it  is 
requisite  that  the  officer  be  ordered  up  for  examination  for  promotion  to  entitle  him  to 
be  retired  in  the  next  higher  grade.  File  26253-200:1,  J.  A.  G.,  Feb.  17,1912. 

158.  Same — An  opinion  of  the  Judge  Advocate  General  stated  in  substance  that  an  officer 

found  morally  (or  professionally )  disqualified  for  promotion  can  not  be  retired,  but  that 
«     the  only  alternative  would  be  that  he  be  ordered  before  another  board  after  disapprov- 
ing the  finding  of  the  first  board.    File  26260-1392,  26260-697,  J.  A.  G.,  June  29,  1911, 
p.  2;15J.  A.  G.  311. 

159.  Retiring  boards — Marine  examining  board  resolving  itself  into  a  retiring  board. 

See  PROMOTION,  27,  85,  86, 165. 

160.  Revised  Statutes,  Section  1493— "No  officer  shall  be  promoted  to  a  higher  grade 

on  the  active  list  of  the  Navy,  except  in  the  case  provided  in  the  next  section,  until 
he  has  been  examined  by  a  board  of  naval  surgeons  and  pronounced  physically 
qualified  to  perform  all  his  duties  at  sea."  (R.  S.  1493.) 

161.  Revised  Statutes,  Section  1494—"  The  provisions  of  the  preceding  section  shall  not 

exclude  from  the  promotion  to  which  he  would  otherwise  be  regularly  entitled  any 
officer  in  whose  case  such  medical  board  may  report  that  his  physical  disqualifi- 
cation was  occasioned  by  wounds  received  in  the  line  of  his  duty,  and  that  such 
wounds  do  not  incapacitate  him  for  other  duties  in  the  grade  to  which  he  shall 
be  promoted."  (R.  S.  1494.) 

162.  Same — The  expression  "wounds  received  in  the  line  of  his  duty,"  found  in  section 

1494  ofthe  Revised  Statutes,  which  provides  for  the  promotion  of  officers  of  the  Navy 
(and  Marine  Corps  by  act  of  Aug.  29, 1916)  whose  physical  disqualifications  do  not 
incapacitate  them  for  other  duties,  means  precisely  what  it  says,  namely,  "wounds 


490  PROMOTION. 

received  in  the  line  of  his  duty,"  and  is  not  restricted  to  any  particular  part  of  that 
duty,as  to  wounds  received  in  battle  or  in  some  hazardous  enterprise.  (23  Op.  Atty. 
Gen.  324.)  File  26260-950,  Sec.  Navy,  July  29,  1910.  See  also  File  26200-3432:3;  Sec. 
Navy,  December  13, 1916. 

The  words  "other  duties"  in  section  1494  of  the  Revised  Statutes  refer  to  duties 
other  than  duties  at  sea.  (23  Op.  Atty.  Gen.  324.)  File  262CO-950,  Sec.  Navy,  July  29, 
1910.  See  also  File  26260-3432:3,  Sec.  Navy,  December  13, 1916;  26260-2424,  Sec.  Navy, 
April  4, 1914. 

163  Same — Officers  of  the  Navy  have  been  promoted  under  the  provisions  of  this  section. 

File  26260-950,  Sec.  Navy,  July  29,  1910  (loss  of  leg);  9346-08,  Sec.  Navy,  Feb.  14,  1908 
(loss  of  leg). 

164  Same — Where  an  officer  of  the  Navy  claimed  that  a  physical  disqualification  for  which 

he  was  eventually  retired  would  entitle  him  to  promotion  under  R .  S .  1494,  the  Secre- 
tary of  the  Navy  held  in  part:  "The  department  concurs  in  the  opinion  of  the  Judge 

Advocate  General  and  of  the  Surgeon  General,  that  Captain 's  present  ear 

trouble  can  not  be  attributed  entirely,  if  at  all,  to  the  injury  from  gun  fire  said  to  have 
been  received  in  1891  or  1892,  and  that  even  if  the  contrary  were  true,  such  injury 
would  not  be  a  "wound  "  within  the  meaning  of  section  1494,  R.  S ."  File  26260-2424, 
Sec.  Navy,  April  2, 1914.  See  also  File  26253-^460,  March  2, 1916;  PROMOTION,  165. 

165.  Revised  Statutes,  1493, 1494— A  second  lieutenant  appeared  before  a  Marine  ex- 

amining board  forpromotion.  Themedicalofficersreportedthathe  was  notphysically 
qualified  for  promotion.  The  board  thereupon  resolved  itself  into  a  retiring  board 
and  recorded  the  following  opinion:  "The  board  having  deliberated  upon  the  evi- 
dence before  it,  decided  that is  at  present  -incapacitated  for  active  service 

by  reason  of  deafness  *  *  *  and  that  his  incapacity  is  a  result  of  an  incident  of  the 
service  and  recommends  that  he  be  sent  to  the  Naval  Hospital,  Mare  Island,  Cal., 
for  observation  and  treatment."  With  the  authority  of  the  Secretary  of  the 
Navy,  the  professional  examination  was  proceeded  with.  The  board  recorded  the 
following  opinion:  "The  board  is  of  the  opinion  that has  the  general  effi- 
ciency, and  the  professional  qualifications,  but  not  at  present  the  physical  qualifica- 
tions to  perform  the  duties  of  the  next  grade  to  which  he  will  be  eligible,  and  does 
not,  therefore,  recommend  his  promotion  thereto."  The  candidate  was  thereupon 
ordered  to  the  before-mentioned  hospital  for  observation  and  treatment,  "then  to  be 
reexamined  physically  to  establish  his  fitness  for  further  active  service."  At  a  later 
date  he  appeared  bef9re  a  second  Marine  examining  board,  which,  after  receiving 
the  report  of  the  medical  members  that  the  candidate  was  not  physically  qualified, 
resolved  itself  into  a  Marine  retiring  board.  This  board  reported  that  the  candi- 
date was  still  incapacitated  for  active  service  but  recommended  that  owing  to  the 
fact  that  the  deafness  might  not  be  permanent  and  that  he  can  and  does  perform 
some  duties  satisfactorily,  that  he  be  continued  on  duty  and  be  reexamined  physic- 
ally at  a  later  date.  He  was  accordingly  ordered  to  the  Naval  Hospital,  Washington, 
D.  C.,  for  special  expert  observation  and  treatment.  A  third  Marine  examining 
board  was  convened.  The  precept  stated  that  if  the  board  finds  that  the  "phys- 
ical disqualification  was  occasioned  by  wounds  received  in  the  lineofhis  duty,"the 
medical  members  of  the  aforesaid  board  will  convene  as  a  board  of  naval  surgeons 
as  contemplated  by  sections  1493  and  1494,  R.  S.,  which  were  made  applicable  to 
Marine  Corps  by  the  act  of  August  29, 1916.  (39  Stat.  611.)  File  26260-3432:3,  Sec. 
Navy,  Dec.  13, 1916. 

166.  Same — The  medical  members  of  a  marine  examining  board  recommended  that  a  first 

lieutenant  be  promoted  in  accordance  with  the  provisions  of  section  1494  of  the  Re- 
vised Statutes,  "wounds  received  in  the  line  of  his  duty."  The  record  was  returned, 
with  the  information  that  section  1494  of  the  Revised  Statutes  did  not  apply  to  the 
Marine  Corps.  File  262607-3462,  Sec.  Navy,  May  10, 1916.  But  see  The  act  of  August 
29,  1916  (39  Stat.  611),  which  provides  that  "the  provisions  of  sections  1493  and  1494 
of  the  Revised  Statutes  of  the  United  States  shall  apply  to  the  Marine  Corps  "  File 
28687-14,  J.  A.  G.,  Dec.  14, 1916,  p.  2. 

167.  Revision  of  proceedings — The  record  of  proceedings  of  an  examining  board  may  be 

returned  for  revision.    File  26260-3188:1,  Sec.  Navy,  February  10, 1916. 

168.  Rules  of  evidence.   See  PROMOTION,  24. 

169.  Satisfactory  mark — "A  mark  of  2.5  in  a  subject  of  an  examination  is  considered  as 

satisfactory  "  for  promotion  of  officers  of  the  Navy.  File  26200-3938:1,  November  28, 
1916. 

170.  Secretary  of  the  Navy— Action  upon  marine  examining  boards.    See  PROMOTION,  134. 


PROMOTION.  491 

171.  Same— Action  upon  naval  examining  boards.    See  PROMOTION,  5. 

172.  Seniority— "From  time  immemorial  the  advancement  of  naval  officers  to  higher 

offices  has  been  made  by  seniority.  This  rule  was  not  established  by  Congress,  but 
by  the  executive  branch  of  the  Government,  although  since  its  inception  statutes  have 
been  enacted  by  Congress  in  recognition  of  the  rule  and  even  purporting  to  make 
same  obligatory."  File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916,  p.  2. 

"In  consequence  of  the  statutory  enactments  above  quoted  [act  of  Augusts,  1861 
sec.  22,  12  Stat.  291.  R.  S.  1458;  act  of  Feb.  27,  1877,  19  Stat.  244,  R.  8.  1480);  act  of 
August  29, 1916  modifying  R.  S.  1458],  promotions  by  seniority  in  the  Navy  have  come 
to  be  regarded  as  made  pursuant  to  statute,  although  section  1458  shows  upon  its 
face  affirmative  evidence,  that  this  system  of  promotion  in  the  Navy  owes  its  origin 
to  a  practice  antedating  statutes  on  the  subject.  It  cannot  therefore  be  said  that  the 
President  has  been  making  promotions  in  the  Navy  by  seniority  in  compliance  with 
statutes  enacted  by  Congress,  but  instead  the  fact  is  more  correctly  stated  that  the 
President  in  the  exercise  of  his  discretion  adopted  the  seniority  rule  of  promotion  in 
the  Navy  and  continued  to  apply  this  rule  unaffected  by  the  fact  that  Congress  had  at 
a  later  date  legislated  to  the  same  effect."  File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916, 
pp.  2-3. 

"The  question  has  repeatedly  been  raised  as  to  the  power  of  Congress  to  control 
the  President's  power  of  appointment  which,  under  the  Constitution,  is  subject  only 
to  the  concurrence  of  the  Senate.  The  authorities  upon  this  question  establish  the 
following  rules:  1st.  That  Congress  has  not  the  power  to  designate  an  appointee  by 
name;  2d.  That  Congress  has  not  the  power  to  require  the  appointment  of  an  individual 
who  stands  highest  upon  a  competitive  examination;  and  3d.  That  Congress  can  not 
require  the  President  to  appoint  to  a  vacancy  in  the  military  service,  the  senior 
officer  in  the  next  lower  grade."  (See  in  this  connection  18  Op.  Atty.  Gen.  15;  U.  S. 
v.  Ferreira,  13  How.  40;  13  Op.  Atty.  Gen.  516;  30  Op.  Atty.  Gen.  177;  9  Op.  Atty.  Gen. 
462;  18  Op.  Atty.  Gen.  -27;  13  Op.  Atty.  Gen.  516;  4  Op.  Atty.  Gen.  164;  26  Op.  Atty. 
Gen.  502).  File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916.  See  also  Ray  v.  Garrison,  42  App. 
D.  C.  34;  C.  M.  0. 3, 1917, 6.  But  see  CONSTITUTIONAL  LAW,  4;  "  OFFICES,"  16. 

See  PROMOTION,  182  (2d  par.),  183,  184,  holding  that  Congress  may  regulate  ad- 
vancements in  rank  without  change  in  office  by  seniority. 

173.  Same — "From  an  exhaustive  review  9f  the  laws  and  regulations  pertaining  to  ap- 

pointments and  promotions  in  the  military  service,  contained  in  14  Opinions  of  the 
Attorney  General,  page  164,  it  is  seen  that  promotions  in  the  Army  from  the  earliest 
times  have  been  by  seniority,  except  in  extraordinary  cases."  File  14816-4,  J.  A.  G., 
1909,  p.  10. 

174.  Same — Seniority  alone  gives  no  right  to  promotion.    To  it  must  be  added  physical, 

mental  and  moral  fitness.  (Steinmetz  v.  U.  S.,  33  Ct.  Cls.  404,  410.)  File  26253-200:1, 
J.  A.  G.,  Feb.  17.  1912. 

175.  Sentence — Loss  of  numbers  mitigated  owing  to  effect  on  promotion.   See  PROMOTION, 

,176.  Service  records  of  officers.    See  NAVAL  EXAMINING  BOARDS,  11. 

177.  Slcard  Board.    File  22724-18,  J.  A.  G.,  Dec.  4, 1911,  p.  5. 

178.  Sick  leave.    See  RETIREMENT  OF  OFFICERS,  33. 

179.  Sick  list.    See  RETIREMENT  OF  OFFICERS,  33. 

180.  Staff  Corps  of  the  Marine  Corps— The  words  "promotions  to  all  grades  below  that 

brigadier  general,"  appearing  in  section  24  of  the  act  -of  June  3,  1916  (39  Stat.  183). 
includes  the  promotion  of  staff  officers  of  the  Marine  Corps  of  the  rank  of  major  and 
lieutenant  colonel  to  higher  ranks  in  the  Marine  Corps  below  that  of  brigadier  general, 
whether  such  promotion  involves  a  change  of  grade  or  not.  The  act  of  June  3,  1916, 
section  24  (Public  No.  85)  requires  examination  of  officers  of  staff  departments  prior 
to  advancement  in  rank  without  promotion  in  grade.  File  26521-144:1.  Sec.  Navy, 
July  10. 1916. 

181.  Same — Officers  of  staff  departments  of  the  Marine  Corps  with  the  rank  of  major  and 

li  eutenant  colonel  are  not ' '  in  the  grades  of  major  and  lieutenant  colonel,"  and  there- 
fore their  professional  examinations  are  not  restricted  by  section  24  of  the  act  of  June  3, 
1916  (39  Stat.  183),  to  problems  involving  the  higher  functions  of  staff  duties  and 
command.  File  26521-144:1,  Sec.  Navy,  July  10,  1916,  p.  4,  affirming  File  26521-144, 
Sec.  Navy,  June  24, 1916. 

182.  Staff  Corps  of  Navy— "In  the  various  staff  corps  of  the  Navy,  two  or  more  ranks  are 

commonly  attached  to  a  single  office  or  'grade.'  In  such  cases,  the  advancement  of 
an  officer  from  one  rank  to  another  rank  in  the  same  office  or  grade  does  not  involve 
a  change  of  office  nor  require  that  an  exercise  of  the  appointing  power  be  invoked 
(See  20  Op.  Atty.  Gen.  358.) 


492  PROMOTION. 

"  It  is  undoubtedly  within  the  constitutional  power  of  Congress  to  provide  how  such 
advancement  in  rank  without  change  of  office  shall  be  made  (Wood  v.  United  States, 
15  Ct.  Cls.  151,  affirmed,  107  U.  S.  414)  and  where  Congress  has  enacted  statutes  regu- 
lating such  advancement  in  rank,  its  enactments  on  the  subject  are  conclusive." 
File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916. 

Prior  to  August  29,  1916,  such  advancements  in  rank  in  the  staff  corps  of  the  Navy 
were  not  regulated  by  any  statute,  but  were  left  entirely  to  the  discretion  of  the 
President  (see  unpublished  opinion  of  Attorney  General  Bonaparte  to  Secretary  of  the 
Navy  March  2, 1909,  Department  of  Justice  No.  C-M,  Navy  Department  file  26289-5a). 
File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916. 

183.  Same— "The  advancement  of  staff  officers  in  rank  without  change  in  office  may  be 

regulated  by  Congress,  but  *  *  *  it  has  not  enacted  any  statutory  regulations  on 
the  subject  other  than  as  applicable  to  the  lower  ranks  in  said  corps;  and  accordingly, 

*  *    *    the  President  may  in  his  discretion  select  any  staff  officer  with  the  rank  of 
captain  for  advancement  to  the  rank  of  rear  admiral  in  the  same  office,  or  may  pre- 
scribe general  rules  governing  such  advancements  in  rank,  the  rank  of  rear  admiral 
in  the  staff  corps  having  been  established  by  the  recent  law  (act  of  August  29,  1916), 
without  making  any  provision  as  to  how  advancements  thereto  shall  be  effected." 
File  28687-4:1,  J.  A.  G.,  Sept.  12,  1916,  pp.  6-7. 

184.  Same— "The  advancement  of  staff  officers  to  higher  offices  with  or  without  advance^ 

ment  in  rank  is  a  matter  resting  entirely  within  the  constitutional  power  of  the  Presi- 
dent, subject  to  such  regulations  by  Congress  as  may  not  deprive  him  of  the  right  to 
exercise  his  individual  judgment  and  will;  *  *  *  the  attempted  regulations  of 
Congress  have  gone  beyond  this  point  and  are,  therefore,  void  as  binding  regulations; 
and  *  *  *  the  President  may  make  such  advancements  by  selection  should  he, 
as  a  matter  of  policy,  deem  such  action  expedient."  File  28687-4:1,  J.  A.  G.,  Sept.  12, 
1916,  p.  7. 

185.  Statements  of  candidates— Sworn  to.    (Forms  of  Procedure,  1910,  p.  231.)    File 

26260-3342:2,  Sec.  Navy,  June  2,  1916. 

186.  Statutes  governing  the  examination  of  officers  of  the  Marine  Corps  for  pro- 

motion— "Hereafter  promotions  to  every  grade  of  commissioned  officers  in  the 
Marine  Corps  below  the  grade  of  commandant  shall  be  made  in  the  same  manner  and 
under  the  same  conditions  as  now  are  or  may  hereafter  be  prescribed  in  pursuance  of 
law  for  commissioned  officers  of  the  Army: 

"Provided,  That  examining  boards  which  may  be  organized  under  the  provisions 
of  this  act  to  determine  the  fitness  of  officers  of  the  Marine  Corps  for  promotion  shall 
in  all  cases  consist  of  not  less  than  five  officers,  three  of  whom  snail,  if  practicable,  be 
officers  of  the  Marine  Corps,  senior  to  the  officer  to  be  examined,  and  two  of  whom 
shall  be  medical  officers  of  the  Navy: 

"Provided  further.  That  when  not  practicable  to  detail  officers  of  the  Marine  Corps 
as  members  of  such  examining  boards,  officers  of  the  line  in  the  Navy  shall  be  so 
detailed."  (Act  of  July  28,  1892.  27  Stat.  321.)  See  File  26260-3314,  Jan.  5.  1915. 

"SEC.  20.  *  *  *  officers  of  the  Marine  Corps  above  the  grade  of  captain,  except 
major  general,  shall,  before  being  promoted,  be  subject  to  such  physical,  mental,  and 
moral  examination  as  is  now  or  may  hereafter  be  prescribed  by  law  for  other  officers 
of  the  MarineCorps."  (Act  of  March  3, 1899,  (30  Stat.  1009)  as  amended  by  act  of  May 
13,1908.  (35  Stat.  155.)) 

"SEC.  3.  That  the  President  be,  and  heis  hereby,  authorized  to  prescribe  a  system 
of  examination  of  all  officers  of  the  Army  below  the  rank  of  major  to  determine  their 
fitness  for  promotion,  such  an  examination  to  be  conducted  at  such  times  anterior  to 
the  accruing  of  the  right  to  promotion  as  may  be  best  for  the  interests  of  the  service 

*  *    *    Provided,  That  if  any  officer  fails  to  pass  a  satisfactory  examination  and  is 
reported  unfit  for  promotion  the  officer  next  below  him  in  rank  having  passed  said 
examination  shallreceive  the  promotion:  And  provided,  That  should  the  officer  fail 
in  his  physical  examination  and  be  found  incapacitated  for  service  by  reason  of  phys- 
ical disability-contracted  in  line  of  duty  he  shall  be  retired  with  the  rank  to  which  his 
seniority  entitled  him  to  be  promoted;  but  if  he  should  fail  for  any  other  reason  he 
shall  be  suspended  irom  promotion  for  one  year,  when  he  shall  be  reexamined,  and  in 
case  of  failure  on  such  reexamination  he  shall  be  honorably  discharged  with  one  year's 
pay  from  the  Army    *    *    *   ."    (Act  oJ  October  1,  1890,  26  Stat.  562.)    See  File 
26260-3314:5,  J.  A.  G.,  July  21, 1916.    [See  in  this  connection  PROMOTION,  194-196.) 


PROMOTION.  493 

"Provided  further,  That  the  provisions  of  existing  law  requiring  examinations  to 
determine  fitness  for  promotion  of  officers  of  the  Army  are  hereby  extended  to  include 
promotions  to  all  grades  below  that  of  brigadier  general:  Provided  further,  That  exami- 
nations of  officers  in  the  grades  of  major  and  lieutenant  colonel  shall  be  confined  to 
problems  involving  the  higher  functions  of  staff  duties  and  command.  (Act  of  June 
3,  1916,  section  24,  39  Stat.  183.)  This  act  "applies  to  the  examination  for  promotion 
of  officers  of  the  Marine  Corps  of  the  ranks  of  major  and  lieutenant  colonel,  by  virtue 
Of  the  act  of  July  28, 1892.  (27  Stat.  321.)  File  26521-144,  June  24  1916. 

That  for  the  purpose  of  advancement  in  rank  to  and  including  the  grade  of  colonel, 
all  commissioned  officers  of  the  line  and  staff  of  the  Marine  Corps  shall  be  placed  on  a 
common  list  in  the  order  of  seniority  each  would  hold  had  he  remained  continuously 
in  the  line.  All  advancements  in  rank  to  captain,  major,  lieutenant  colonel,  and 
colonel  shall,  subject  to  the  usual  examinations,  be  made  from  officers  with  the  next 
junior  respective  rank,  whether  of  the  line  or  staff,  in  the  order  in  which  their  names 
appear  on  said  list.  (Act  of  Aug.  29, 1916,  39  Stat,  610.)  See  File  11130-33,  Sec.  Navy, 
Sept.  20,  1916. 

Sections  1493  and  1494  apply  to  the  Marine  Corps.    See  PROMOTION,  165, 166. 

The  act  of  July  28,  1892  [27  Stat.  321],  not  having  been  repealed  either  expressly  or 
impliedly  by  the  act  of  August  29,  1916  (providing  that  R.  S.  1493  and  1494  apply  to 
Marine  Corps)  is  still  in  full  force  and  effect.  File  28687-14,  J.  A.  G.,  Dec.  14, 1916,  p.  3. 

187.  Statutory  boards — For  promotion  of  officers  of  the  Navy.    See  PROMOTION,  190-192. 

188.  Statutory  construction — The  department  instructed  a  Naval  Examining  Board  as 

follows:  "In  construing  laws  relating  to  the  naval  service  the  board  will  be  guided  by 


189.  Summary  proceedings.    See  PROMOTION,  64. 

190.  Supervisory  boards— Every  officer  of  the  Navy  whose  eligibility  to  promotion  is  to 

be  acted  upon  by  an  examining  board  under  the  provisions  of  sections  1496, 1498-1505, 
Revised  Statutes,  has  the  right  to  be  present  at  his  examination.  He  must  be  duly 
notified  of  the  time  and  place  of  his  examination,  and  unless  he  waives  his  right  or 
expresses  a  lack  of  desire  to  be  present,  he  must  be  given  leave  of  absence  or  permission 
to  attend.  No  finding  of  the  board  adverse  to  his  qualifications  for  promotion  can  be 
made  without  a  personal  examination  of  such  officer  unless  he  fails  to  appear  after 
having  been  duly  notified  to  do  so.  Held:  That  the  proceedings  and  findings  of  a 
naval  examining  board  are  fatally  irregular  and  defective  in  that— (1)  Said  officer, 
being  at  the  time  in  the  discharge  of  his  duty  on  shipboard,  and  under  orders  of  his 
superior  officer,  was  not  notified  of  the  time  and  place  of  his  examination  for  promo- 
tion, and  was  not  given  and  did  not  have  an  opportunity  or  permission  to  exercise  his 
right  to  appear  and  be  heard  at  such  examination;  and  (2)  said  board  or  examiners 
rejected  said  officer  and  his  application  for  promotion  without  any  examination  of 
himself,  although  he  had  not  failed  "to  appear,  after  being  duly  notified,  before  said 
board."  (27  Op.  Atty.  Gen.  251,  April  2,  1909.)  See  File  26260-3193:1,  Sec.  Navy. 
March  23,  1916. 

191.  Same— Officers  of  the  Navy  failing  before  a  supervisory  board  allowed  to  appear 

before  a  statutory  board  for  personal  examination.  File  26260-2744,  Sec.  Navy,  May 
22, 1916;  26260-2593:10,  J.  A.  G.,  Aug.  28, 1916;  26260-3193:1,  Sec.  Navy,  March  23, 1916; 
26260-3321:3.  Sec.  Navy  Oct.  13, 1916. 

The  candidate  (failed  professionally  before  a  supervisory  board)  having  reserved 
the  right  to  appear  in  person  before  a  Naval  Examining  Board  (statutory  board)  in 
conformity  with  the  provisions  of  sections  1503  and  1505  of  the  Revised  Statutes,  the 
department  directed,  in  accordance  with  the  opinion  of  the  Attorney  General  of 
April  2,  1909  (27  Op.  Atty.  Gen.  251),  that  he  be  duly  notified  of  the  time  and  place 
that  his  case  is  to  be  examined  by  a  Naval  Examining  Board,  and  be  given  permission 
to  appear  before  said  board  if  he  so  desires.  File  26260-2850:4,  Sec.  Navy,  Dec.  16, 
1916. 

The  department  decided,  in  view  of  the  Attorney  General's  opinion  of  April  2, 1909 
(27  Op.  Atty.  Gen.  251).  and  in  view  of  the  candidate  having  waived  his  right  to 
appear  in  person  before  the  Naval  Examining  Board  (statutory  board),  that  it  would 
be  legal  to  suspend  him  from  promotion  for  six  months  in  conformity  with  the  provi- 
sions of  R.  S.  1505  as  amended  by  the  act  of  March  11,  1912  (37  Stat.  73),  for  having 
failed  professionally  for  promotion  (before  a  supervisory  board),  but  as  a  matter  of 
expediency  he  will  be  allowed  to  appear  before  a  statutory  board  for  personal  exami-  • 
nation.  File  26260-2744,  Sec.  Navy,  Dec.  16, 1916. 


494  PROMOTION. 

192.  Same — A  warrant  officer  failed  before  a  supervisory  board  in  his  examination  for  ap- 

pointment as  ensign.  No  action  was  taken  on  the  record  and  he  "will  be  directed  to 
appear  in  person  before  a  statutory  board  for  examination,  preliminary  to  appoint- 
ment as  an  ensign  in  the  Navy."  File  26829-41,  Sec.  Navy,  Dec.  12,  1916.  See  also 
APPOINTMENTS,  18. 

193.  Surgeon  general.   See  NAVAL  EXAMINING  BOARDS,  24. 

194.  Suspension  from  promotion  of  Marine  officers— An  officer  having  failed  to  pass 

professionally  a  few  days  prior  to  the  approval  of  the  act  of  August  29, 1916  (39  Stat., 
611),  was  not  suspended  from  promotion  for  a  period  of  one  year  in  accordance  with 
the  act  of  October  1. 1890  (26  Stat.,  526),  made  applicable  to  the  Marine  Corps  by  the 
act  of  July  28, 1892  (27  Stat.,  321),  but  was  placed  under  the  provisions  of  the  first  cited 
act,  which  provides: 

"  In  lieu  of  suspension  from  promotion  of  any  officer  of  the  Marine  Corps  who  here- 
after fails  to  pass  a  satisfactory  professional  examination  for  promotion,  or  who  is  now 
under  suspension  from  promotion  by  reason  of  such  failure,  such  officer  shall  suffer 
loss  of  numbers,  upon  approval  of  the  recommendation  of  the  examining  board,  in 
the  respective  ranks,  as  follows:  Lieutenant  colonel,  one;  major,  two;  captain,  three; 
first  lieutenant,  five;  second  lieutenant,  eight:  Provided,  That  any  such  officer  shall 
be  reexamined  as  soon  as  may  be  expedient  after  the  expiration  of  six  months  if  he 
in  the  meantime  again  becomes  due  for  promotion,  and  if  he  does  not  in  the  mean- 
time again  become  due  for  promotion  he  shall  be  reexamined  at  such  time  anterior  to 
again  becoming  due  for  promotion  as  may  be  for  the  best  interests  of  the  service: 
Provided  further .  That  if  any  such  officer  fails  to  pass  a  satisfactory  professional  reex- 
amination  he  shall  be  honorably  discharged  with  one  year's  pay  from  the  Marine 
Corps."  File  26260-3624,  Sec.  Navy,  Aug.  29, 1916.  See  also  File  26260-3758,  October, 
1916. 

195.  Same — A  major  having  been  examined  for  promotion  subsequent  to  August  29, 1916, 

failed  both  morally  ana  professionally.  Held:  That  "as  it  is  not  thought  that  the  law 
intends  to  impose  a  double  penalty  where  the  failures  are  concurrent,  *  *  *  his 
suspension  from  promotion  should  be  only  for  a  period  of  one  year,  with  correspond- 
ing loss  of  date,  in  accordance  with  the  law  relating  to  failures  other  than  profes- 
sional." File  26260-3624:2,  Sec.  Navy,  Sept.  29,  1916. 

196.  Same — A  second  lieutenant  was  examined  for  promotion  when  he  was  No.  2  on  the 

list  of  second  lieutenants  and  failed  professionally.  He  was  suspended  from  promo- 
tion for  one  year,  with  corresponding  loss  of  date  in  accordance  with  the  act  of  October 
1, 1890  (26  Sfat.,  526)  and  the  act  of  July  28  1892  (27  Stat.,  321).  The  year  of  suspen- 
sion having  expired  on  August  18,  1916,  he  was  reexamined  and  found  qualified. 
Held;  That  this  officer  "was  not  under  suspension  from  promotion  on  August  29, 
1916,  the  date  of  approval  of  the  naval  appropriation  act  (39  Stat.-,  611),  the  provisions 
contained  therein,  limiting  the  loss  of  numbers  to  eight  in  the  case  of  a  second  lieu- 
tenant now  under  suspension,  can  not  be  held  to  apply  in  his  case."  File  26260- 
3149:3,  Sept.  22,  1916. 

197.  Same — Reexamination  to  avoid  suspension  from  promotion  is  illegal.    See  PROMOTION, 

68. 

198.  Same— Refusal  to  have  a  surgical  operation  performed.    See  SURGICAL  OPERATIONS. 

199.  Suspension  from  promotion  of  officers  of  the  Navy— In  interpreting  section  1505 

R.  S.  as  amended  by  the  act  of  March  11, 1912  (37  Stat.,  73);  the  following  conclusions 
were  reached:  (a)  An  officer  due  for  promotion  after  a  specified  period  of  service,  who 
is  suspended  from  promotion  for  a  period  of  six  months,  should,  if  afterwards  pro- 
moted, be  given  rank  from  a  date  six  months  later  than  that  on  which  he  first  became 
due  for  promotion;  (b)  An  officer  due  for  promotion  by  reason  of  seniority  who  is  sus- 
pended from  promotion  for  a  period  of  six  months,  should,  if  afterwards  promoted,  be 
given  rank  from  the  date  on  which  the  vacancy  occurred  which  he  is  promoted  to  fill, 
provided  such  vacancy  did  not  occur  during  the  six  months'  period  of  suspension: 
(c)  An  officer  due  for  promotion  by  reason  of  seniority,  who  is  suspended  from  pro- 
motion for  a  period  of  six  months,  should,  if  afterwards  promoted,  be  given  rank  from 
the  date  that  the  period  of  suspension  expired  where  the  vacancy  which  he  is  promoted 
to  fill  occurred  during  the  six  months'  period  of  suspension.  File  26260-2605:  2, 
J.  A.  G.,  Aug.  17,  1915;  C.  M.  O.  29,  1915,  9-10. 

200.  Same — An  assistant  surgeon  having  completed  three  years'  service  as  such  on  May  4, 

1915,  was  suspended  from  promotion,  because  of  professional  failure  on  examination, 
for  six  months  from  July  19, 1915,  with  the  loss  of  nine  numbers  in  accordance  with 
Revised  Statutes  1505,  as  amended  by  act  March  11,  1912  (37  Stat.,  73).  This  loss  of 
numbers  operated  to  place  him  below  other  officers  who  will  not  be  promoted  until 


PROMOTION.  495 

April  10, 1917,  although  his  period  of  suspension  will  expire  on  January  18, 1916.  field, 
There  is  no  legal  obstacle  to  issuing  this  officer  his  commission  as  soon  as  he  qualifies, 
to  rank  from  November  4, 1915,  this  being  six  months  later  than  the  date  from  which 
he  first  became  due  for  promotion  (see  C.  M.  O.  29,  1915,  p.  9).  He  should  then  be 
carried  at  the  foot  of  the  grade  of  passed  assistant  surgeon  until  the  officers  who  are 
eventually  to  rank  him  hi  consequence  of  his  loss  of  numbers  have  been  advanced  over 
him  in  that  grade. 

The  practice  of  executing  loss  of  numbers  by  immediately  reducing  the  officer  in 
his  grade  when  his  period  of  suspension  takes  effect  should  "be  modified  in  all  cases, 
whether  the  officer  is  due  for  promotion  by  length  of  service  or  to  fill  a  vacancy;  the 
officer  should  mark  time  during  his  period  of  suspension  while  his  juniors  are  advanced 
over  him,  as  was  the  practice  under  section  1505,  Revised  Statutes,  prior  to  its  amend- 
ment :  and  when  his  period  of  suspension  expires,  if  he  has  not  lost  the  required  num- 
bers, he  should  nevertheless  be  promoted  and  continue  to  mark  time  until  his  loss  of 
numbers  has  been  fully  executed.  In  such  case  the  loss  of  numbers  should  be  deter- 
mined as  at  present  by  the  condition  of  the  Navy  Register  on  the  date  that  the  sus- 
pension becomes  effective,  the  suspended  officer  profiting  by  any  casualties  which 
may  occur  in  the  same  manner  as  though  he  had  been  reduced  in  grade.  (In  this 
connection,  see  C.  M.  0. 14,  1915;  see  also,  File  26521-40,  J.  A.  G.,  June  11,  1912.) 

The  opinions  of  the  Judge  Advocate  General  of  May  14,  1915  (file  26266-475),  and 
August  17,  1915  (file  26260-2605:  2),  published  in  Court-Martial  Order  No.  29,  1915, 

Ep.  9-10,  were  rendered  with  reference  to  the  practice  of  executing  the  loss  of  numbers 
y  reducing  the  officer  in  his  grade,  and  the  question  of  having  the  officer  mark  time 
while  his  juniors  were  advanced  over  him  until  his  loss  of  numbers  had  been  executed, 
was  not  then  presented  nor  considered;  nevertheless  the  conclusions  expressed  in  said 
opinions  would  apply  equally  to  the  change  in  such  practice  now  suggested,  although 
different  results  will  be  produced. 

Inasmuch  as  the  law  does  not  provide  in  what  manner  the  loss  of  numbers  shall  be 
executed— that  is.  whether  the  officer  shall  be  reduced  in  his  grade  or  mark  time  while 
his  juniors  are  advanced  over  him,  but  on  the  contrary,  permits  of  either  practice, 
thereby  leaving  the  determination  of  this  question  to  the  administrative  officers — it 
is  held  that  the  action  heretofore  taken  was  legal  and  should  n9t  be  disturbed  where 
the  officers  concerned  have  already  been  promoted  and  commissioned;  but  that  the 
method  now  suggested  of  having  the  officer  mark  time  while  his  juniors  are  advanced 
over  him  until  he  has  lost  the  required  numbers,  should  be  applied  to  all  cases  now 
pending  or  which  may  hereafter  arise.  File  26260-3091: 1,  J.  A.  G.,  Nov.  9,  1915; 
C.  M.  O.  42,  1915,  11-12. 

201.  Same — Officer  due  for  promotion  after  a  specified  period  of  service,  suspended  from 

promotion  for  six  months.  C.  M.  O.  29, 1915,  9-10;  42, 1915, 11-12.  See  also  PEOMO 
TION,  199,  200. 

202.  Same — Officer  due  for  promotion  by  reason  of  seniority,  suspended  from  promotion 

for  six  months.    C.  M.  O.  29, 1915,  9-10;  42, 1915, 11-12.    Seealso  PROMOTION,  199,  200. 

203.  Same— Suspended  from  promotion  because  of  alleged  irregularities.    File  26260-823:7, 

J.  A.  G.,  April  5, 1912. 

204.  Same — Promotion  delayed  until  officer  changed  his  manner  in  handling  enlisted  men. 

See  PROMOTION,  56.    See  also  PROMOTION,  57-59. 

205.  Same— Suspension  of  final  action  where  officer  has  qualified— A  machinist  was  exam- 

ined, found  qualified,  and  recommended  for  promotion  to  the  grade  of  chief  machinist. 
An  inspection  of  the  reports  on  fitness,  attached  to  the  record  of  proceedings  of  the 
Naval  Examining  Board,  disclosed  various  unfavorable  entries  relative  to  this 
officer's  professional  qualifications,  particularly  with  reference  to  handling  men. 
The  department  recommended  to  the  President  that:  "Asa  very  high  order  of  ability 
to  handle  men  is  an  essential  qualification  for  a  chief  machinist  in  the  naval  service, 
I  recommend  that  final  action  upon  the  finding  of  the  board  in  this  case  be  suspended 
for  a  period  of  one  year,  in  order  that  an  opportunity  may  be  afforded  Machinist 
*  *  *  to  further  establish  his  fitness  for  promotion  which,  considering  the  evidence 
above  referred  to,  I  regard  as  open  to  question."  File  26260-2044,  Sec.  Navy,  April  28, 
1913. 

206.  Same-;  A  boatswain,  after  six  years'  service  in  his  grade,  was  examined  for  promotion 

to  chief  boatswain,  found  not  professionally  qualified,  and  suspended  for  one  year. 
After  the  expiration  of  his  period  of  suspension  he  was  reexamined,  and  again  found 
not  qualified  professionally.  Under  these  circumstances,  advised,  that  the  record  may 
be  returned  to  the  board  for  further  examination  of  the  candidate;  or  it  may  be  dis- 

50756°— 17 32 


496  PROMOTION. 

approved,  and  a  new  examination  ordered;  but  action  upon  the  record  can  not  be 
indefinitely  withheld  and  the  officer  continued  in  his  present  grade.  File  26260-684, 
J.  A.  G.,  Jan.  8, 1910.  See  also  CUSTOMS,  8. 

It  was  held  that  an  officer  due  for  promotion  could  be  held  in  his  present  rank  to 
see  whether  or  not  he  kept  sober.  File  3849-02,  J.  A.  G. ,  June  6, 1902;  20  J.  A.  G.  290. 

207.  Same— R.  S.  1505  was  amended  by  the  act  of  March  11,  1912  (37  Stat.,  73),  to  read  as 

follows:  "Any  officer  of  the  Navy  on  the  active  list  below  the  rank  of  commander 
who,  upon  examination  for  promotion,  is  found  not  professionally  qualified,  shall  be 
suspended  from  promotion  for  a  period  of  six  months  from  the  date  of  approval  of 
said  examination,  and  shall  suffer  a  loss  of  numbers  equal  to  the  average  six  months' 
rate  of  promotion  to  the  grade  for  which  said  officer  is  undergoing  examination  during 
the  five  fiscal  years  next  preceding  the  date  of  approval  of  said  examination,  and  upon 
the  termination  of  said  suspension  from  promotion  he  shall  be  reexamined,  and  in 
cases  of  his  failure  upon  such  reexamination  he  shall  be  dropped  from  the  service  with 
not  more  than  one  year's  pay;  Provided,  That  the  provisions  of  this  act  shall  be  effec- 
tive from  and  after  January  first,  nineteen  hundred  and  eleven."  File  26260-3193:1, 
Sec.  Navy,  April  22, 1916.  See  also  File  26260-3026:2,  Sec.  Navy,  April  18, 1916. 

208.  Vacancy — Examination  of  a  Marine  officer  before  the  existeace  of  a  vacancy.    See 

PROMOTION,  131. 

209.  Same — Examination  of  an  officer  of  the  Navy  before  the  existence  of  a  vacancy.    See 

PROMOTION,  132. 

210.  Vacancy  must  exist  before  promotion  of  a  Marine  officer.    See  PROMOTION,  109. 

211.  Vacancy  must  exist  before  promotion  of  an  officer  of  the  Navy — In  the  absence 

of  special  legislation  to  the  contrary  an  officer  of  the  Navy  can  be  promoted  only  to 
fill  a  vacancy  actually  existing.  File  26255-83:4,  J.  A.  G.,  Aug.  4, 1911,  p.  5.  See  also 
PROMOTION,  109. 

212.  Venereal  disease — An  officer  who  is  suffering  from  a  venereal  disease  should  be  sus- 

pended from  promotion.    File  26260-153b.    See  also  PROMOTION,  194-198. 

213.  Vested  right  of  promotion — Promotion  is  a  vested  right,  and  an  officer  is  entitled  to 

rank  from  date  of  vacancy.  File  14818-4.  See  also  APPOINTMENTS,  10;  PROMOTION. 
142. 

"There  is  now  (August  29, 1916)  absolutely  no  ground  for  the  contention  that  any 
officer  has  a  vested  right  to  promotion  to  the  grade  of  commander,  captain,  or  rear 
admiral,  merely  because  he  happens  to  stand  at  the  head  of  his  existing  grade." 

214.  Waiver — A  candidate  may  waive  his  right  to  appear  before  a  statutory  board.    See 

PROMOTION,  190. 

215.  Same — Failure  of  an  acting  assistant  surgeon  to  pass  may  be  waived  by  the  Secretary 

of  the  Navy.    See  ACTING  ASSISTANT  SURGEONS,  2;  PROMOTION,  3. 

216.  Warrant  officers— The  law  (Act  of  March  3,  1901,  31  Stat.  1129,  and  Act  of  April  28, 

1904,  33  Stat.,  346)  provides  that  no  warrant  officer  shall  be  appointed  as  an  ensign 
thereunder  "until  he  shall  have  passed  such  competitive  examination  as  may  be 
prescribed  by  the  Navy  Department."  File  28026-1209:4,  J.  A.  G.,  Oct.  25,  1915. 
See  also  APPOINTMENTS,  18;  PROMOTION,  192. 

217.  Same— Promotion  to  commissioned  warrant  officers.    See  PROMOTION,  205,  206. 

218.  Withholding  action  upon.    File  26260-1294,  J.  A.  G.,  June  10,  1911.    See  also  COM- 

MISSIONS, 40-43;  PROMOTION,  56-59. 

219.  Witness— Candidate  as  a  witness.    See  NAVAL  EXAMINING  BOARDS,  25-26. 

PROMOTION  BY  SELECTION. 

1.  Act  of  August  29,  1916  (39  Stat.  556).    See  PROMOTION  BY  SELECTION,  4. 

2.  General  Order  No.  231,  August  31,  1916—  Publishes  act  of  August  29,  1916.    See 

PROMOTION  BY  SELECTION,  4. 

3.  Inherent  right  to  promotion— By  the  act  of  August  29,  1916,  "the  principle  of  the 

inherent  right  of  any  officer  to  promotion  was  definitely  abandoned."  File  26521-169, 
J.  A.  G.,  Nov.  28,  1916,  p.  4. 

4.  Law— "Hereafter  allpro  motions  to  the  grades  of  commander,  cnptain,  and  rear  admiral 

of  the  line  of  the  Navy,  including  the  promotion  of  those  captains,  commanders,  and 
lieutenant  commanders  who  are.  or  may  be,  carried  on  the  Navy  list  as  additional  to 
the  numbers  of  such  grades,  shall  be  by  selection  only  from  the  next  lower  respective 
grade  upon  the  recommendation  of  a  board  of  naval  officers  as  herein  provided. 

"The  board  shall  consist  of  nine  rear  admirals  on  the  active  list  of  the  line  of  the 
Navy  not  restricted  by  law  to  the  performance  of  shore  duty  only,  and  shall  be  ap- 
pointed by  the  Secretary  of  the  Navy,  and  convened  during  the  month  of  December 
of  each  year  and  as  soon  after  the  first  day  of  the  month  as  practicable. 


PEOMOTION    BY    SELECTION.  497 

"  Each  member  of  said  board  shall  swear,  or  affirm,  that  he  will,  without  prejudice 
or  partiality,  and  having  in  view  solely  the  special  fitness  of  officers  and  the  efficiency 
of  the  naval  service,  perform  the  duties  imposed  upon  him  as  herein  provided. 

"  The  board  shall  be  furnished  by  the  Secretary  of  the  Navy  with  the  number  of 
vacancies  in  the  grades  of  rear  admiral,  captain,  and  commander  to  be  filled  during 
the  following  calendar  year,  including  the  vacancies  existing  at  the  time  of  the  con- 
vening of  the  board  and  those  that  will  occur  by  operation  of  law  from  the  date  of  con- 
vening until  the  end  of  the  next  calendar  year,  and  with  the  names  of  all  officers  who 
are  eligible  for  consideration  for  selection  as  herein  authorized,  together  with  the  record 
of  each  officer:  Provided,  That  any  officer  eligible  for  consideration  for  selection  shall 
have  the  right  to  forward  through  official  channels  at  anytime  not  later  than  ten  days 
after  the  convening  of  said  board  a  written  communication  inviting  attention  to  any 
matter  of  record  in  the  Navy  Department  concerning  himself  which  he  deems  im- 
portant in  the  consideration  of  his  case:  Provided,  That  such  communication  shall 
not  contain  any  reflection  upon  the  character,  conduct,  or  motives  of  or  criticism 
of  any  officer:  Provided  further,  That  no  captains,  commanders,  or  lieutenant  com- 
manders who  shall  have  had  less  than  four  year's  service  hi  the  grade  in  which  he  is 
serving  on  November  the  thirtieth  of  the  year  of  the  convening  of  the  board  shall 
be  eligible  for  consideration  by  the  board:  Provided  further,  That  the  recommen- 
atipn  of  the  board  in  the  case  of  officers  of  the  former  Engineer  Corps  who  are  re- 
stricted by  law  to  the  performance  of  shore  duty  only  and  in  that  of  officers  who  may 
hereafter  be  assigned  to  engineering  duty  only  shall  be  based  upon  their  compara- 
tive fitness  for  the  duties  prescribed  for  them  by  law.  Upon  promotion  they  shall 
be  carried  as  additional  numbers  in  grade. 

"The  board  shall  recommend  for  promotion  a  number  of  officers  in  each  grade 
equal  to  the  number  of  vacancise  to  be  filled  in  the  next  higher  grade  during  the  fol- 
lowing calendar  year:  Provided,  That  no  officer  shall  be  recommended  for  promotion 
unless  he  shall  have  received  tne  recommendation  of  not  less  than  six  members  of  said 
board:  Provided  further,  That  the  increase  in  the  number  of  captains  herein  authorized 
shall  be  made  at  the  rate  of  not  more  than  ten  captains  hi  any  one  year. 

"  The  report  of  the  board  shall  be  in  writing  signed  by  all  of  the  members  and  shall 
certify  that  the  board  has  carefully  considered  the  case  of  every  officer  eligible  for  con- 
sideration under  the  provisions  of  this  law,  and  that  in  the  opinion  of  at  least  six  of 
the  members,  the  officers  therein  recommended  are  the  best  fitted  of  all  those  under 
consideration  to  assume  the  duties  of  the  next  higher  grade,  except  that  the  recom- 
mendation of  the  board  in  the  case  of  officers  of  the  former  Engineer  Corps  who  are  re- 
stricted by  law  to  the  performance  of  shore  duty  only,  and  in  that  of  officers  who 
may  hereafter  be  assigned  to  engineering  duty  only,  shall  be  based  upon  their  com- 
parative fitness  for  the  duties  prescribed  for  them  by  law. 

"The  report  of  the  board  shall  be  submitted  to  the  President  for  approval  or  dis- 
approval. In  case  any  officer  or  officers  recommended  by  the  board  are  not  acceptable 
to  the  President,  the  board  shall  be  informed  of  the  name  of  such  officer  or  officers. 
and  shall  recommend  a  number  of  officers  equal  to  the  number  of  those  found  not 
acceptable  to  the  President,  and  if  necessary  shall  be  reconvened  for  this  purpose. 
When  the  report  of  the  board  shall  have  been  approved  by  the  President,  the  officers 
recommended  therein  shall  be  deemed  eligible  for  selection,  and  if  promoted  shall  take 
rank  with  one  another  in  accordance  with  their  seniority  hi  the  grade  from  which 
promoted:  Provided,  That  any  officers  so  selected  shall  prior  to  promotion  be  subject 
in  all  respects  to  the  examinations  prescribed  by  law  for  officers  promoted  by  seniority, 
and  in  case  of  failure  to  pass  the  required  professional  examination  such  officer  shall 
thereafter  be  inejigible  for  selection  and  promotion.  And  should  any  such  officer  fail 
to  pass  the  required  physical  examination  he  shall  not  be  considered,  in  the  event  of 
retirement,  entitled  to  the  rank  of  the  next  higher  grade. 

"On  and  after  June  thirtieth,  nineteen  hundred  and  twenty,  no  captain,  com- 
mander, or  lieutenant  commander  shall  be  promoted  unless  he  has  had  not  less  than 
two  years'  actual  sea  service  on  sea-going  ships  in  the  grade  hi  which  serving  or  who  is 
more  than  fifty-six,  fifty,  or  forty-five  years  of  age,  respectively:  Provided,  That  the 
qualification  of  sea  service  shall  not  apply  to  officers  restricted  to  the  performance  of 
engineering  duty  only:  Provided  further,  That  captains,  commanders,  and  lieutenant 
commanders  who  become  ineligible  for  promotion  on  account  of  age  shall  be  retired 
on  a  percentage  of  pay  equal  to  two  and  one-half  per  centum  of  their  shore-duty  pay 
for  each  year  of  service;  Provided  further,  That  the  total  retired  pay  shall  not  exceed 


498  PROMOTION   BY   SELECTION. 

seventy-five  per  centum  of  the  shore-duty  pay  they  were  entitled  to  receive  while  on 
the  active  list."  (Act  of  August  29,  1916  (39  Stat.  578).  G.  O.  231.  August  31. 1916. 
pp.  9-11.)  See  C.  M.  0. 3,  1914. 

5.  Object  of  selection. — The  object  of  the  board  on  selection  is  not  at  all  to  determine 
definitely  whether  or  not  the  officers  recommended  by  it  are  in  fact  qualified  to  per- 
form the  duties  of  the  next  higher  grade  at  sea.  That  is  still  the  function  of  the  ex- 
amining board  which  under  the  present  act  examines  the  officers  who  have  been 
recommended  by  the  board  and  selected  by  the  President.  The  object  of  the  selec- 
ti9n  board  is  carefully  to  consider  the  cases  of  all  officers  who  are,  under  the  law, 
eligible  for  promotion  and  to  form  their  opinions  from  any  means  which  may  be 
available  as  to  those  among  the  eligibles  who  are  best  qualified  for  promotion."  File 
26521-169,  J.  A.  G.,  Nov.  28,  1916,  p.  5. 

C.  "Plucking  board."  See  COMMISSIONS,  42;  PROMOTION,  123;  RETIREMENT  OF 
OFFICERS,  41. 

7.  Policy  of  Government  changed  regarding  promotion— On  August  29,  1916,  the 

naval  appropriation  bill  (39  Stat.  578)  was  approved  containing  a  provision  for  pro- 
motion by  selection  to  the  grades  of  commander,  captain,  and  rear  admiral.  In  the 
adoption  of  the  system  of  promotion  by  selection  for  the  aforementioned  grades  Con- 
gress completely  altered  its  policy  in  regard  to  promotion  in  the  Navy  which  had  been 
pursued  practically  since  the  beginning  of  this  Republic.  File  26521-169,  J.  A.  G., 
Nov.  28,  1916,  p.  4. 

8.  Records  of  officers. — Question  as  to  whether  the  provisions  of  the  act  of  June  18,  1878 

(20  Stat.  165),  apply.  Held,  That  the  board  shall  be  furnished  with  the  entire  "rec- 
ord of  each  officer"  eligible  for  consideration.  File  26521-169,  J.  A.  G.,  Nov.  28.1916; 
C.  M.  O.  3,  1917,  7. 

9.  Same-^-"  Every  officer  concerned  has  a  right  to  submit,  through  official  channels,  at 

any  time  not  later  than  ten  days  after  the  convening  of  the  board,  a  written  communi- 
cation inviting  attention  to  any  matter  of  record  in  the  Navy  Department  concerning 
matters  which  he  deems  important  in  the  consideration  of  his  case.  This  written 
communication  should  be  in  the  hands  of  the  board  by  December  12,  1916."  File 
28026-1484,  J.  A.  G.,  Nov.  14,  1916. 

10.  Staff  Corps.    File  28687-1:4,  J.  A.  G.,  Oct.  30  and  31,  1916.    See  also  PROMOTION,  182- 

184;  C.  M.  O.  3,  1917,  7-9. 

11.  "  Together  with  the  record  of  each  officer"— To  what  "record"  do  these  words 

contained  in  the  act  of  August  29, 1916,  refer?  See  PROMOTION  BY  SELECTION,  8;  C. 
M.  O.  3, 1917,  7. 

PROPERTY. 

1.  Public  property.    See  PUBLIC  PROPERTY. 

2.  Taxation— Persons  in  the  Government  service.    See  POLL  TAXES. 

PROPERTY  OF  THE  UNITED  STATES.    See  PUBLIC  PROPERTY. 

PROPHYLACTIC  TREATMENT. 

1.  Court-martial— For  refusal  to  take  G.  C.  M.  Rec.  21477. 

2.  Small-pox.    See  SMALLPOX. 

3.  Typhoid.    See  TYPHOID  PROPHYLACTIC. 

4.  Venereal.    See  VENEREAL  PROPHYLACTIC. 

PROSECUTING  A  CLAIM  AGAINST  THE  UNITED  STATES.    See  CLAIMS;  CLAIM  s 
AGAINST  THE  UNITED  STATES. 

PROSECUTING  WITNESSES.    See  COUNSEL,  43. 

PROTECTION    OP    THE    UNIFORM.     See  DISCRIMINATION    AGAINST    UNIFORM; 
UNIFORM. 

PROTESTS. 

1.  Record  of  proceedings— not  allowed  on.  See  EXCEPTIONS,  2;  BILLS  OF  EXCEPTIONS,  1. 

2.  Reports  on  fitness— Summary  courts-martial  members'  protest  against  entry  as  to 

manner  of  performing  duty.  See  CRITICISM  OF  COURTS-MARTIAL,  36;  REPORTS  ON 
FITNESS,  3. 

PROTOCOLS. 

1  Spain— The  "Protocol  of  agreement  between  the  United  States  and  Spain  "  was  signed 
August  12,  1908.  File  26516-47,  J.  A.  G.,  May  18,  1911,  u.  2.  See  also  File  24308-11, 
J.  A.  G.,  Mar.  14, 1914. 


PUBLIC    PROPERTY.  499 

PROVED  BUT  WITHOUT  CRIMINALITY.    See  ACQUITTAL,  25. 
PROVED  BUT  WITHOUT  CULPABILITY.    See  FINDINGS,  44,  70. 

PROVISIONS  AND  CLOTHING,  BUREAU  OF. 

1.  Name— The  name  of  the  Bureau  of  Provisions  and  Clothing  was  changed  to  Supplies 
and  Accounts  by  the  act  of  July  19, 1892  (27  Stat.  243, 245).  File  22724-16:1,  J.  A.  G., 
Feb.  13, 1911,  p.  2. 

PROVOCATION. 

1.  Clemency— Provocation  as  grounds  for.    Sec  CLEMENCY,  45. 

PROVOST. 

1.  Haiti— Authority  of  commander  in  chief  of  cruiser  squadron  to  try  political  (military) 
prisoners  by  military  commission  or  provost.  See  MILITARY  COMMISSIONS. 

PROVOST  COURT.    File  552&-39:20. 

PROVOST  MARSHAL. 

1.  Witness — The  provost  marshal  must  be  present  while  witnesses  testify,  even  though 
he  himself  may  later  be  called  as  a  witness.  G.  C.  M.  Rec.  31355,  p.  2. 

PRUSSIAN  LIFE-SAVING  MEDAL..  See  DECORATIONS,  5. 

PUBLIC. 

1.  Definition— "  All  the  authorities  agree  that  'public '  is  a  relative  term  used  in  contradis- 
tinction to  the  word  'private'  (e.  g.,  State  v.  Sowers,  52  Ind.  311,312.)"  File  26251- 
2993,  J.  A.  G.,  Mar.  10, 1910,  p.  5.  See  pages  6-8  of  the  foregoing  letter  for  a  general 
discussion  of  various  definitions  of  the  words  "public"  and  "private." 

PUBLIC  ADMINISTRATOR.    See  DISPOSITION  OF  EFFECTS,  2. 

PUBLIC  LANDS. 

1.  Leasing— Of  public  lands  by  Executive  action.  See  13  J.  A.  G.,  449,  Apr.  28,  1905. 
See  also  File  1260-1 1C2-01. 

PUBLIC  MONEY. 

1.  Ships'  stores — The  profits  from  sales  made  by  ships'  stores  in  the  Navy,  as  authorized 
by  the  act  of  June  24, 1910  (36  Stat.  619),  are  cot  public  money  within  the  meaning  of 
section  3648,  R.  S.  (Compt.  Dec.  Aug.  11, 1914,  file  26254-1571:2).  See  also  File  26254- 
1759,  Apr.  20,  1915. 

PUBLIC  OFFICES.    Sec  "OFFICE." 

PUBLIC  OPINION  AS  TO  DRUNKENNESS.    See  DRUNKENNESS,  73. 

PUBLIC  POLICY.    See  C.  M.  O.  31, 1911;  21, 1910, 15;  EVIDENCE,  82,  83;  SALVAGE,  2. 

PUBLIC  PRESS. 

1.  Good  name  of  naval  service— Dragged  into  notoriety  through.    C.  M.  0. 14, 1915, 1-2. 

2.  Newspapers.   See  NEWSPAPERS;  PUBLICATION. 

PUBLIC  PROPERTY. 

1.  Clothing,  useless  -Disposition  of.    See  File  26288-394,  Sec.  Navy,  Apr.  24, 1913. 

2.  Defense  of— By  sentinel  using  firearms.    See  FIREARMS,  2. 

3.  Loss  of—  Responsibility  of  officer  for.     File  18140-10,  J.  .\.  G.,  Apr.  24,  1911.    See  also 

PUBLIC  PROPERTY,  5. 

4.  Loss  or  damage  of—Checkage  of  pay  for.    See  PAY,  17, 18. 

5.  Marine  Corps — Responsibility  for  loss  of,  fixed.    See  File  18140-37,  Sec.  Navy,  Aug. 

31,  1916;  18140-10,  J.  A.  G.,  Apr.  24, 1911;  18140-32,  Sec.  Navy,  Aug.  26, 1915. 

6.  Prisoners'  useless  clothing— Disposition  of.    File  26288-394,  Sec.  Navy,  Apr.  24, 

1913. 

7.  Recovery  of  pawned  or  stolen  property — Thelaw  is  wellsettled  that  no  pawnbroker 

may  legally  retain  property  of  the  United  States  which  has  been  stolen  and  pawned. 
It  is  the  duty  of  any  such  broker  having  such  property  in  his  possession  to  return  the 
same  to  the  United  States  on  demand,  and,  in  the  event  of  his  refusal  to  do  so,  legal 
proceedings  against  him  may  be  instituted  by  the  Department  of  Justice.  Also  the 
United  States,  through  any  of  its  officers  or  representatives  detailed  for  the  purpose, 


500  PUBLIC   PROPERTY. 

may  retake  said  property  if  this  can  be  done  without  a  breach  of  the  peace.  In  any 
event  the  United  States  can  not  be  required,  nor  is  it  authorized,  to  refund  the 
amount  loaned  on  its  property  by  a  pawnbroker  to  persons  by  whom  said  property 
has  been  stolen.  File  26804-8,  J.  A.  G.,  Aug.  28, 1916;  C.  M.  0. 30, 1916,  8. 

PUBLIC  REPRIMAND. 

1.  Courts-martial— May  be  reprimanded  for  leniency.    See  ADEQUATE:   SENTENCES; 

CRITICISM  OF  COURTS-MARTIAL. 

2.  Court-Martial,  Orders — Should  show  that  public  reprimand  involved  in  a  general 

court-martial  sentence  was  administered.    But  see  C.  M.  O.  7, 1912, 1;  9. 1913,  3. 

3.  Same— Record  of  officer — Published  in  a  court-martial  order  as  a  part  of  a  public 

reprimand.    See  PUBLIC  REPRIMAND,  14. 

4.  Definition  of —The  mere  fact  that  a  letter  of  reprimand  is  exhibited  to  one  or  more 

persons  before  reaching  the  officer  to  whom  addressed  does  not  constitute  such  a 
letter  a  "public  reprimand."  The  publication  of  such  letter  or  cpntents  thereof 
throughout  the  naval  service  is  requisite  to  constitute  it  a  "public  reprimand." 
File  20251-2993,  J.  A.  G.,  Mar.  10, 1910.  See  also  REPRIMAND,  2. 

The  unbroken  chain  of  percedents  of  the  department  shows  that  the  method  of  exe- 
cuting a  sentence  of  public  reprimand  has  been  from  the  earliest  days  a  publication 
of  the  reprimand  to  the  service  in  a  court-martial  order. 

A  private  reprimand  is  executed  by  addressing  a  letter  to  the  officer  concerned 
through  the  usual  official  channels.  File  26251-2993,  J.  A.  G.,  Mar.  10, 1910,  p.  8. 

5.  Department  does  not  favor  as  part  of  a  general  court-martial  sentence — 


32, 1912;  34, 1912;  35, 1912;  37, 1912;  23, 1914;  28, 1914, 4-5;  45, 1914;  46, 1914.)  C.  M.  O. 
25, 1915;  12, 1916,  2. 

6.  Same^-In  an  officer's  sentence  which  included  loss  of  numbers  and  to  be  "publicly 

reprimanded"  the  department  while  approving  sentence  stated  the  reprimand 
will  "be  dispensed  with."  C.  M.  0. 12, 1904,  4.  See  also  C.  M.  0. 104, 1896, 3-4. 

Where  a  public  reprimand  constituted  the  entire  sentence  the  department  disap- 
proved in  order  that  the  well  established  policy  of  the  department,  which  regards  such 
a  sentence  as  undesirable,  might  be  emphasized.  C.  M.  O.  38, 1916. 

7.  Jeopardy,  former — A  public  reprimand  which  is  not  administered  as  a  part  of  a 

court-martial  sentence  does  not  constitute  former  jeopardy  or  bar  trial.  See  JEOP- 
ARDY, FORMER  23, 30;  PLEA  IN  BAR,  6. 

8.  Letter  of  department  is  not  necessarily  a  public  reprimand — Charges  were 

preferred  to  the  department  by  an  officer  of  the  Navy  against  another  officer  in  the 
service,  with  recommendation  that  the  latter  be  brought  to  trial  by  general  court 
martial.  After  consideration  of  the  matter,  the  officer  against  whom  the  charges 
were  made  was  informed  by  the  det>artment,  in  a  letter  sent  him  through  the  usual 
official  channels,  that  his  conduct  "receives  the  disapproval  and  censure  of  the 
department; "  but  that  for  reasons  of  public  policy  his  trial  by  court-martial  would 
not  be  ordered.  Held,  that  the  department's  letter  was  not  a  public  reprimand; 
and  further  held,  that  if  such  a  letter  could  be  regarded  as  a  public  reprimand,  it 
would  not  constitute  a  "punishment"  which  could  be  pleaded  by  the  recipient 
in  bar  of  trial  by  court-martial.  File  26251-2993,  J.  A.  G.,  Mar.  10, 1910. 

9.  Letter  of  public  reprimand  by  Secretary  of  Navy— Published  in  full  in  court- 

martial  order.    C.  M.  0. 11, 1908,  3;  1,  1909. 

Iiiadi: 
part: 

to  administer  i 

mand  as  could  be  gained  by  a  reprimand  administered;  I  leave  it  to  be  so  considered; 
for  I  am  led  to  infer  that  this  officer's  sensibilities  are  not  in  a  blunted  condition; 
therefore  he  may  consider  himself  reprimanded.  C.  M.  O.  20, 1894,  2. 

Although  the  convening  authority  stated  that  the  publication  of  the  court-martial 
order  would  constitute  the  public  reprimand,  he  also  added:  "A  casual  reading, 
however,  of  the  charges  and  specifications,  with  the  findings  thereon,  will  be  suffi- 
cient to  enable  the  service  to  form  its  own  estimate  of  an  officer  who  has  been  found 
guilty  of  the  acts  alleged  in  this  case."  C.  M.  O.  28, 1908,  4. 

Where  accused  was  charged  with  "manslaughter"  and  another  charge,  and  ac- 
quitted^ of  the  first  charge  but  found  guilty  of  the  second,  the  Secretary  of  the  Navy, 
in  administering  a  public  reprimand  adjudged  by  the  court  as  part  of  its  sentence, 


PUBLIC    REPRIMAND.  501 

stated  in  part:  "  These  offenses  on  your  part  have  led  to  a  calamity  so  clearly  unfore- 
seen by  you  and  so  distressing  that  no  words  of  reproof  can  be  needed  to  make  you 
feel  their  gravity.  Your  disobedience  to  the  law  of  your  country,  your  forgetfulness 
of  the  full  import  of  your  oath,  your  yielding  to  fierce  and  angry  passions  when 
tempted  by  a  sense  of  wrong  have  borne  fruits  so  bitter  that  your  worst  punishment 
has  been  afready  suffered.  The  merciful  sentence  of  the  cqurt  which  tried  you  leaves 
you  a  member  of  the  honorable  profession  you  have  chosen  In  that  great  school  of 
self-sacrifice  and  obedience  a  life  useful  to  your  country  will,  it  is  hoped,  atone  for 
grave  faults  which  have  clouded  the  early  years  of  your  sen-ice."  C.  M.  0. 128, 1905,6. 

10.  Members  of  courts-martial — May  be  reprimanded  for  failure  to  properly  perform 

court-martial  duty.    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

11.  Nominal  punishment — A  public  reprimand  is  a  nominal  punishment.    C.  M.  O. 

8.1915,3. 

12.  Not  favored — Public  reprimand  as  a  part  of  sentences  is  not  favored  by  the  depart- 

ment.   See  PUBLIC  REPRIMAND,  5. 

13.  President  of  the  United  States — Remitted  a  mitigated  sentence  and  directed  that 

the  accused  (officer)  be  "reprimanded  for  neglect  of  duty."    C.  M.  O.  48, 1904, 1. 

14.  Record  of  officer— Published  in  a  court-martial  order  as  a  part  of  a  public  reprimand. 

C.  M.  O.  3, 1911,  2;  29,  1912, 1;  32, 1912,  2;  35, 1912, 1;  36, 1912,  2;  2, 1913, 1;  3, 1913,  2. 

15.  Remitted— By  department.    C.  M.  O.  12, 1904,  4. 

16.  Same— By  commander  in  chief.    C.  M.  O.  38, 1912. 

17.  Right  to— "In  the  absence  of  express  limitation  or  restriction  it  would  seem  that, 

whatever  the  propriety  of  so  doing,  the  inherent  right  of  a  commander  in  chief  to 
express  approval  or  disapproval  of  the  official  conduct  of  subordinate  officers  under 
his  command  can  not  be  denied.  Such  has  been  the  uniform  view  of  the  department 
with  reference  to  the  right  of  the  Secretary  of  the  Navy  to  administer  a  reprimand. 
There  is  abundant  precedent  for  the  reprimand  by  the  Secretary  of  the  Navy  of  an 
officer  for  a  breach  of  discipline  or  a  failure  in  the  performance  of  duty."  (See  G.  O. 
31,  Mar.  22,  1864;  G.  O.  87,  Sept.  7,  1868.)  C.  M.  0.  9,  1893,  10. 

"The  practice  is  as  old  as  the  department  itself.  Cases  have  occurred  where  the 
department,  without  trial,  has  pronounced  emphatic  reprimand  upon  officers  in 
General  Orders.  The  publicity  that  is  given  either  to  its  commendation  or  its  reproof 
is  a  matter  within  its  own  discretion,  in  the  exercise  of  which  it  consults  only  the 
public  interest."  C.  M.  O.  93, 1893,  10. 

"  Nothing  can  be  better  settled  in  military  law  and  practice  than  the  right  of  a  com- 
mander in  chief  to  reprimand  or  censure  an  officer  by  general  order  or  by  public 
letter,  or  in  any  other  manner  which  he  may  deem  for  the  best  interests  of  the  service. 
The  mode  adopted  must  lie,  and  ought  always  to  lie  within  the  discretion  of  the 
C9mmander  in  chief;  if  it  does  not,  it  would  be  impossible  to  maintain  military  dis- 
cipline. The  practice  and  precedents  in  our  own  Navy  are  beyond  question,  as  can 
be  readily  shown."  C.  M.  O.  93, 1893, 10. 

"The  right  of  a  superior  officer  to  censure  a  subordinate,  publicly  or  privately  for 
negligence  in  the  performance  of  duty  is  an  inherent  attribute  of  command,  and  is 
presumed  to  exist  unless  taken  away  by  express  provision  of  law  or  other  competent 
authority."  C.  M.  O.  9,  1893,  9-10. 

18.  Secretary  of  the  Navy — The  Secretary  of  the  Navy  has  the  right  to  censure  a  subordi- 

nate, publicly  or  privately,  for  negligence  or  inefficiency  in  the  performance  of  duty, 
or  for  misconduct  bringing  discredit  upon  the  service.  Such  rebuke  may  be  pub- 
lished to  the  service  in  such  manner  as  the  department  may,  in  its  discretion,  decide, 
and  does  not  constitute  a  bar  to  subsequent  trial  for  that  offense  by  court-martial. 
It  is  the  mere  exercise  of  the  Secretary's  right  of  administration  of  discipline  and  is 
in  no  wise  connected  with  his  power  of  reviewing  authority  wherein  he  merely 
executes  the  sentence  of  public  reprimand  imposed  by  the  court-martial.  File 
26251-2993,  J.  A.  G.,  Mar.  10, 1910. 

19.  Sentence — While  the  proper  sentence  is  "public  reprimand,"  courts-martial  have 

irregularly  sentenced  the  accused  "  to  be  reprimanded  by  the  Secretary  of  the  Navy." 
C.  M.  O.  36, 1908,  2. 

20.  Same — Sentences  in  which  "public  reprimand"  constituted  the  whole  sentence: 

C.  M.  O.  15,  1909;  20,  1909;  30,  1909;  12,  1910;  19,  1910;  29,  1910;  9,  1911;  13,  1911: 
28,  1911;  14.  1912;  4,  1913;  9,  1913;  39,  1913;  15,  1914;  23,  1914;  28, 1914;  45, 1914;  46, 
1914;  38, 19i6. 


502  PUBLIC   REPRIMAND. 

21 .  Undesirable  form  of  sentence— It  is  inadvisable  in  cases  where  a  substantial  sentence 

is  imposed  by  the  court  that  an  officer  suffering  such  substantial  sentence  should  in 
addition  thereto  be  subject  to  a  public  reprimand.  C.  M.  O.  104,  1896,  6.  See  also 
File  12821-83:34,  Sec.  Navy,  Jan.  13, 1917;  Bu.  Nav.  file  N  5  F,  3711-64,  Jan.  4, 1917; 
PUBLIC  REPRIMAND,  5. 

22.  Same— A  sentence  consisting  entirely  of  a  public  reprimand  is  not  favored  by  the  de- 

partment.   C.  M.  O.  38, 1916;  G.  C.  M.  Rec.  32728.    See  also  PUBLIC  REPRIMAND,  5. 

PUBLIC  STATUTES.  See  STATUTES;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

PUBLIC  TRIAL. 

1.  Accused — Requested  findings  and  sentence  be  set  aside,  claiming  trial  was  not  a  public 

trial.    See  APPEALS,  4. 

2.  General  courts-martial — The  sessions  of  a  general  court-martial  shall  be  public. 

See  COURT,  126, 127. 

PUBLIC  VESSELS.    See  COLLISIONS,  10. 

PUBLIC  WORKS. 

1.  No  objection — Is  perceived  to  the  use  of  the  expression  "public  works"  for  administra- 
tive purposes,  grouping  thereunder  such  objects  as  may  be  deemed  proper,  but  the 
term  must  not  be  employed  in  such  manner  as  to  conflict  with  existing  law.  File 
3980-621,  J.  A.  G.,  May  31, 1911,  p.  10. 

PUBLICATION. 

1.  Army  and  Navy  Journal — Officer  tried  by  general  court-martial  for  writing  and 

furnishing  for  publication,  in  The  Army  and  Navy  Journal,  an  article  which  must 
necessarily  reflect  upon  worthy  officers  of  the  Navy,  and  which  was  done  in  violation 
of  a  general  order.  G.  O.  61,  June  24, 1865. 

2.  Books— Permission  granted  to  publish.    See  BOOKS,  5. 

3.  Libel.    See  LIBEL,  4. 

4.  Newspapers — Officers  acting  as  correspondents  for.    See  NEWSPAPERS,  5. 

5.  Same — A  commissioned  officer  was  severely  reprimanded  by  the  Secretary  of  the  Navy 

for  the  "publication  of  a  letter  written  by  an  [the]  officer  to  his  father  concerning  cer- 
tain operations  in  which  certain  foreign  governments  were  directly  concerned  "  which 
"was  a  source  of  very  great  embarrassment  to  the  Department  01  the  Navy  and  the 
Department  of  State."  File  26251-12159,  Sec.  Navy,  Oct.  30, 1916,  p.  6. 

6.  Same — A  chief  petty  officer  was  severely  reprimanded  for  writing  a  letter  directed  to  a 

newspaper  upon  matters  of  an  unneutral  character.  File  19585-857,  Sec.  Navy,  Nov., 
1916.  ' 

PUNISHMENT.    See  also  SENTENCES. 

1.  Certainty  not  degree — It  is  the  certainty  of,  and  not  the  degree  of  punishment,  which 

deters  the  wrongdoer. 

2.  Commanding  officers — Punishments  by  commanding  officers.    See  COMMANDING 

OFFICERS,  31-33. 

3.  Object  of — The  primary  object  of  punishment  is  the  deterrent  effect  upon  others.    G. 

C.  M.  Rec.  24607. 

PUNITIVE. 

1.  Prisoners  awaiting  trial — Confinement  should  not  be  punitive.    C.  M.  O.  27, 1915,  9. 

See  also  PRISONERS,  4. 

2.  Proceedings.    C.  M.  O.  35, 1915,  8.    See  also  CIVIL  AUTHORITIES,  16. 

3.  Sentences.    See  PUNITIVE  SENTENCES. 

PUNITIVE  SENTENCES.    See  C.  M.  O.  129, 1898,  8. 

PURCHASE,  DISCHARGE  BY. 

1.  Definition.    See.  ORDINARY  DISCHARGES,  2. 

2.  1-4893.    See  NAVAL  INSTRUCTIONS,  1913, 1-4893. 

3.  Poll  taxes — Payment  of  by  person  who  received  a  discharge  by  purchase  from  Navy. 

See  POLL  TAXES,  5. 

"PURSUER." 

1.  Detective  azency — Arresting  deserter.    See  CIVIL  OFFICERS,  2. 

QUALIFACATIONS  FOR  APPOINTMENT  TO  OFFICE.    See  APPOINTMENTS,  36. 


QUESTIONS   OF   LAW.  503 

QUALIFACATIONS  OF  MEMBERS  OF  COURTS-MARTIAL.    See  MEMBERS  OF 
COURTS-MARTIAL,  39. 

QUALIFICATIONS  OF  OFFICERS.    See  OFFICERS,  95,  96,  97. 
QUARANTINE  CHARGES.    See  CONSTITUTIONAL  LAW,  7. 

QUARTERS. 

1.  Agreement  of  two  officers  concerning  quarters — Resulted  in  a  general  court-martial 

for  both.    File  26254-2052.    See  also  OFFICERS,  3;  PRIVILEGE,  3. 

2.  Allowances— And  commutation  for  quarters  for  officers  of  the  Navy.    File  28479-141, 

J.  A.  G.,  Nov.  15, 1915.    See  also  153  S.  &  A.  Memo.  2854. 

3.  Drunk  In  quarters.    See  DRUNKENNESS,  73,  75. 

4.  Naval  Academy— Assignment  of  quarters  at  the  Naval  Academy.    File  9886-18,  Sec. 

Navy,  Dec.  12,  1908,  quoted  with  approval  in  File  28479-141,  J.  A.  G.,  Nov.  15,  1915. 
See  also  File  26254-2120:1. 

5.  Same— "Married  officers'"  quarters.    See  File  9886-16,  Sec.  Navy,  Oct.  15,  1908,  cited 

in  File  28479-141,  J.  A.  G.,  Nov.  15,  1915. 

6.  New  York  Navy  Yard — Assignment  of  quarters  to  unmarried  junior  officers.    File 

20032-4,  Sec.  Navy,  Nov.  27,  1908,  quoted  approvingly  in  File  28479-14:1,  J.  A.  G., 
Nov.  15, 1915. 

7.  Pensacola,  Fla.,  Aeronautic  Station— Assignment  of  quarters  in  building  No.  34. 

File  28479-141,  J.  A.  G.,  Nov.  15, 1915. 

8.  Puget  Sound  Navy  Yard.    File  26254-2134;  9886-26:1. 

9.  Submarine — Hire  of  quarters  for  officers  of  submarines  while  such  vessels  are  under- 

going repairs.    File  26254-2131,  Sec.  Navy,  Nov.  17,  1916. 

QUARTERLY  CLOTHING  RETURNS. 

1.  Evidence,  as.    C.  M.  0. 52, 1910,  3. 

QUESTIONS  ASKED  WITNESS  BEFORE  COURTS-MARTIAL. 

1.  Numbered  properly.    See  RECORD  OF  PROCEEDINGS,  95. 

QUESTIONS  OF  LAW. 

1.  Comptroller  of  the  Treasury— Weight  of  decisions  with  reference  to  points  of  law. 

See  COMPTROLLER  OF  THE  TREASURY,  10. 

2.  "  Concerning  the  personnel."    See  COAST  GUARD,  1;  JUDGE  ADVOCATE  GENERAL, 

14, 17,  33. 

3.  Courts-martial — Where  the  only  difficulty  existing  is  one  of  law,  decisions  of  the 

courts  (civil),  opinions  of  the  law  officers  of  the  Navy  (Attorney  General  and  Judge 
Advocate  General),  or  decisions  of  the  department  (Secretary  of  the  Navy)  based 
thereon,  are  not  to  be  lightly  disregarded  by  naval  courts-martial  without  incurring 
the  full  measure  of  responsibility  which  must  be  ascribed  to  them  for  the  resulting 
miscarriage  of  justice.  File  26251-12159,  Sec.  Navy,  Dec.  9, 1916.  See  also  CRITICISM 
OF  COURTS-MARTIAL,  14. 

4.  Same — "The  action  of  the  court  in  this  case,  in  changing  its  finding  to  conform  to  the 

law.  shows  a  proper  appreciation  on  the  part  of  the  court  of  its  true  function,  that  of 
applying  the  law  to  the  facts  as  it  finds  them.  In  determining  the  questions  of  fact 
the  members  of  the  court  must  arrive  at  their  conclusions  solely  from  the  evidence 
that  is  adduced  or  comes  before  the  court  and  not  from  any  knowledge  or  information 
otherwise  acquired.  In  exercising  this  part  of  its  function  a  court  is  assisted  by  a 
knowledge  and  application  of  the  rules  of  evidence,  but  no  considerable  knowledge  of 
the  law  is  required.  It  is  to  this  duty  of  deducing  the  facts  from  a  consideration  of  the 
evidence  that  the  part  of  the  oath  administered  to  members  requiring  them  to  try  a 
case  'according  to  their  own  consciences'  refers.  The  facts  having  been  found,  it 
remains  for  the  court  to  apply  the  law  to  them.  The  exercise  of  this  function  depends 
not  on  the  consciences  of  the  members  but  upon  a  knowledge  of  the  law.  A  compre- 
hensive knowledge  of  this  subject  is  a  profession  in  itself,  and,  while  officers  of  the 
navalservice  are  accountable  forthe  information  promulgated  by  court-mart  ialorders 
and  other  official  publications,  it  is  to  be  expected  that  cases  will  arise  in  which  naval 
courts  will  require  assistance  in  applying  the  moreintricate  provisions  of  law.  There- 
fore, i  f  by  reason  of  a  lack  of  knowledge  of  the  law  a  court  arrives  at  an  incorrect  find- 
ing or  unjustified  sentence-there  has  been  provided,  in  the  interests  of  justice,  a  means 
of  correcting  such  error.  The  department  may  return  the  record  for  further  consid- 
eration, pointing  out  what  the  law  is  and  how  it  should  be  applied.  In  such  event . 


504  QUESTIONS    OF   LAW. 

the  court  is  not  justified  in  disregarding  the  law  because  an  application  of  the  same 
may  reach  a  result  at  variance  with  the  individual  beliefs  of  a  majority  of  its  members. 
It  is  only  right  and  just  for  the  court  to  accept  the  law  as  laid  down  to  it  by  proper 
authority  and  then  to  come  to  its  findings  and  sentence  anew  accordingly,  as  was  done 
inthiscase."  C.  M.  O.  25, 1916,  4,  quoted  approvingly  in  file  26251-12159.  Sec.  Navy. 
Dec.  9, 1916. 

5.  Same— Weight  of  decisions  of  the  Secretary  of  the  Navy  regarding  questions  of  law. 

See  PROMOTION,  188;  QUESTIONS  OF  LAW,  3, 4;  SECRETARY  OF  THE  NAVY,  39. 

6.  Same— Questions  of  law  arising  before  courts-martial  forwarded  to  Judge  Advocate 

General.    See  RECORDS  OF  PROCEEDINGS,  59;  SECRETARY  OF  THE  NAVY,  39. 

7.  Examining  boards— Questions  of  law  arising  before  examining  boards.    See  MARINE 

EXAMINING  BOARDS,  12;  PROMOTION,  188. 

8.  Judge  Advocate  General — All  questions  involving  points  of  law  "concerning  the 

personnel"  shall  be  examined  and  reported  upon  by  the  Judge  Advocate  General. 
See  COAST  GUARD,  1;  JUDGE  ADVOCATE  GENERAL,  14, 17,  33. 

9.  Marine  Examining  Boards— Questions  of  law  arising  before  Marine  Examining 

Boards.    See  MARINE  EXAMINING  BOARDS,  12;  PROMOTION,  188. 

10.  Naval  Examining  Boards — Questions  of  law  arising  before  Naval  Examining  Boards. 

See  MARINE  EXAMINING  BOARDS,  12;  PROMOTION,  188. 

11.  Personnel — Questions  involving  points  of  law  "concerning  the  personnel "  of  the  naval 

service.  See  COAST  GUARD,  1:  GENERAL  ORDERS,  3;  JUDGE  ADVOCATE  GENERAL, 
14, 17,  33. 

12.  Secretary  of  the  Navy— Weight  of  decisions  regarding  points  of  law.    See  PROMO- 

TION, 188;  SECRETARY  OF  THE  NAVY,  39. 

13.  Settlement  of  accounts — Weight  of  decisions  of  Comptroller  of  the  Treasury.    See 

COMPTROLLER  OF  THE  TREASURY,  10. 

QUIBBLES. 

1.  Officer's  defense— Consisting  of.    See  OFFICERS,  116. 

QUORUM. 

1.  Nolle  prosequl — Not  necessary  to  have  a  quorum  present  in  a  trial  by  general  court- 

martial  to  enter  a  nolle  prosequi.    See  COURT,  140;  NOLLE  PROSEQUI,  12. 

2.  Procedure— Should  the  membership  of  a  general  court-martial  be  reduced  below  the 

legal  number,  the  court  shall  be  adjourned  and  a  report  made  to  the  convening  au- 
thority. (R-769(7)).  See  CHALLENGES,  22;  COURT,  141. 

3.  Reconvening  of  a  general  court-martial — Not  practicable  for  the  court  to  be  recon- 

vened as  it  was  reduced  below  the  legal  minimum.    See  COURT,  142, 143. 

4.  Same— Revision  was  not  practicable  for  the  reason  that  one  of  the  original  members 

who  sat  during  the  trial  of  the  accused  had  since  been  relieved,  leaving  only  four — 
less  than  a  quorum — qualified  to  take  part  in  revision.  File  6401-02,  J.  A.  G.,  July 
22, 1902;  20  J.  A.  G.  563. 

RAFT,  TARGET.    See  TARGET  RAFTS. 

RAILROAD  TICKETS. 

1.  Procured — With  fraudulent  intent,  knowingly  and  willfully  appropriating.    C.  M.  O. 

17, 1910, 3-5. 

2.  Refund  for  unused  tickets — Court-martial  prisoners,  not  having  used  the  full  amount 

of  the  transportation  furnished  by  the  Government,  are  not  entitled  to  the  cash  value 
of  the  unused  portions  thereof  but  refund  should  be  made  to  the  Government.  File 
9160-6157,  Sec.  Navy,  May  29,  1916. 

RANGE  FINDER. 

1.  Willful  destruction  of— By  a  paymaster's  clerk  who  was  tried  by  general  court- 
martial.    C.  M.  O.37, 1912. 

RANK.    See  also  PRECEDENCE;  TITLES. 

1.  Accused— Rank  of  accused  should  be  included  in  sentence.    C.  M.  0. 14, 1915,  2.    See 

also  DESIGNATION  OF  ACCUSED,  2-4;  SENTENCES,  33. 

2.  Advancement  In  rank  only.    See  COMMISSIONS,  9. 

3.  Chiefs  of  bureaus.    See  BUREAU  CHIEFS,  8-13. 

4.  Civil  War  service.    See  CIVIL  WAR  SERVICE,  5,  6. 

5.  Date  of — Officer  an  additional  number  in  his  grade.    See  ADDITIONAL  NUMBERS,  1. 

6.  Deck  court  officers— Rank  a  legal  requirement.    See  DECK  COURTS,  10,  46. 


BANK.  505 

7.  Dental  surgeons.    See  DENTAL  SURGEONS,  9. 

8.  Examining  boards.   See  MARINE  EXAMINING  BOARDS,  16;  NAVAL  EXAMINING 

BOARDS,  17. 

9.  Marine  examining  boards.    See  MARINE  EXAMINING  BOARDS,  16. 

10.  Marine  retiring  boards.    See  MARINE  RETIRING  BOARDS,  2. 

11.  Naval  examining  boards.    See  NAVAL  EXAMINING  BOARDS,  17. 

12.  Naval  retiring  boards.    See  NAVAL  RETIRING  BOARDS,  2. 

13.  Navy  Register — Officer's  rank  is  not  affected  by  his  position  on  the  Navy  Register. 

See  NAVY  REGISTER,  2. 

14.  Precept — Error  in  stating  rank,  title,  or  relative  position  in  precept  will  not  affect  the 

validity  of  precept.    See  CHALLENGES,  15. 

15.  Rear  admirals — Rank  of  rear  admirals  of  the  senior  and  lower  nines.    See  REAR 

ADMIRALS,  3. 

16.  Retiring  boards.    See  MARINE  RETIRING  BOARDS,  2;  NAVAL  RETIRING  BOARDS,  2. 

17.  Title— Only  line  officers  have  the  title  as  well  as  the  rank,  while  staff  officers  have  the 

title  of  the  grade  to  which  they  belong  in  their  9wn  corps,  and  have  assimilated  rank 
in  order  to  compare  them  with  line  officers.  File  22724-16: 1,  J.  A.  G.,  Apr.  24,  1911, 
p.  4.  See  also  TITLES,  1. 

RANK  AND  GRADE  DISTINGUISHED.    See  GRADE  AND  RANK. 

RAPE. 

1.  "Assault  with  intent  to  commit  rape" — Paymaster's  clerk  tried  by  general  court- 

martial.    C.M.  O.35,  1913. 

2.  Enlisted  man— Charged  with.    G.  C.  M.  Rec.  29178. 

3.  Insanity — Defense  of  insanity  in  the  offense  of  rape.    C.  M.  O.  24,  1914,  16.    See  also 

INSANITY,  33. 

4.  Intent.    See  INTENT,  49. 

RATE  OF  ACCUSED. 

1.  Sentence— Should  be  included  hi.    C.  M.  0. 14, 1915,  2.    See  also  DESIGNATION  OF  AC- 
CUSED, 2-4;  SENTENCES,  33. 

RATE  OF  PAY. 

1.  Deck  court  records— Should  indicate  rate  of  pay.    C.  M.  0. 12, 1915,  7. 

RATIFICATION. 

1.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  75,  76. 

RATING. 

1.  Liandsman— Rating  of  landsman  abolished  for  seaman  branch.    See  LANDSMAN. 

2.  New— Congressional  action  necessary  to  establish  new  rating — Concerning  the  establish- 

ment of  the  rating  of  chief  printer  in  the  Navy,  it  was  said  by  the  Judge  Advocate 
General:  "It  is  my  opinion  that  'it  is  necessary  to  secure  congressional  action  to 
establish  a  new  rate  in  the  Navy  with  a  new  rate  of  pay.'  In  this  connection  there 
is  quoted  the  following  extract  from  the  naval  appropriation  act  approved  May  13, 
1908  (35  Stat.  127):  'The  pay  of  all  active  and  retired  enlisted  men  of  the  Navy  is 
hereby  increased  ten  per  centum  *  *  *  and  all  pay  herein  provided  shall  remain 
in  force  until  changed  by  act  of  Congress.'"  File  26509-106,  J.  A.  G.,  Oct.  17, 1913. 

3.  Reduction  In  rating— By  court-martial  sentence.    See  REDUCTION  IN  RATING. 

RATIONS. 

1.  Components  of,  etc.    See  File  21177 : 3,  J.  A.  G.,  Jan.  25, 1911. 

REAPPOINTMENT  OF  DISMISSED  OFFICERS.    See  DISMISSAL,  23;  LEGISLATION, 
5;  OFFICERS,  39. 

REAPPOINTMENT  OF  MIDSHIPMEN.    See  MIDSHIPMEN,  70-73. 

REAR  ADMIRALS. 

1.  Lower  nine— Pay  of.    See  REAR  ADMIRALS,  2. 

2.  Pay— A  rear  admiral  carried  as  No.  11  on  the  list  of  rear  admirals  of  the  Navy  is  not 

entitled  to  be  credited  with  pay  as  a  rear  admiral  of  the  fir^t  nine  in  consequence 
of  three  rear  admirals  of  the  first  nine  having  been  designated  by  the  President  for 
the  rank  and  pay  of  admirals  in  the  Navy,  pursuant  to  provisions  of  the  naval  appro- 
priation act  of  March  3,  1915.  Since  an  officer  designated  under  the  provisions  of 
the  above  act  keeps  his  place  on  the  list  of  rear  admirals  all  the  time  no  vacancy  is 
created  and  the  law  also  expressly  provides  that  no  vacancy  will  thereby  be  created. 
File  26254-1738,  Sec.  Navy,  Mar.  20, 1915;  C.  M.  0. 12, 1915, 12-13. 


506  REAR   ADMIRALS. 

3.  Rank  of  upper  and  lower  nines— Rear  admirals  for  pay  purposes  are  divided  into 

two  classes,  namely,  rear  admiral  of  the  senior  nine  and  rear  admiral  of  the  lower 
nine .  However,  there  is  no  A  ifference  in  the  rank  of  such  officers  other  than  as  among 
themselves,  the  same  as  in  other  grades  of  line  officers,  this  being  regulated  by  date  of 
commission.  Accordingly,  a  captain  on  the  active  list  retired  with  the  rank  of  the 
next  higher  grade  is  entitled  to  retirement  merely  as  rear  admiral;  and  the  question 
whether  or  not  he  is  a  rear  ad  miral  of  the  senior  nine  or  of  the  lower  nine  is  one  which 
relates  merely  to  the  rate  of  pay  to  which  he  may  be  entitled.  File  26253-460: 1,  May 
13,  1916. 

4.  Retired  rear  admiral— Tried  by  general  court-martial.    C.  M.  O.  41,  1915. 

5.  Senior  nine— Pay.    See  REAR  ADMIRALS,  2,3. 

6.  Upper  nine — Pay.    See  REAR  ADMIRALS,  2,3. 

REASON  BEHIND  THE  RULE  OF  ADMISSIBILITY  OP  CONFESSIONS.    See 

CONFESSIONS,  21. 

REASONABLE  DOUBT. 

1. .  Definition— It  has  been  held  that  "attempts  to  explain  the  term  'reasonable  doubt '  do 
not  usually  result  in  making  it  any  clearer  to  the  minds  of  the  jury"  (Miles  v.  U.  S., 
103  U.  S.  312).  Nevertheless  the  Federal  courts  have  given  several  clear  and  com- 
prehensive definitions  which  may  properly  be  adopted  and  applied  by  naval  courts- 
martial. 

The  definition  of  reasonable  doubt,  as  published  in  Forms  of  Procedure,  1910,  p. 
137.  is  as  follows: 

"By  reasonable  doubt  is  intended  not  fanciful  or  ingenious  doubt  or  conjecture, 
but  substantial,  honest,  conscientious  doubt,  not  removed  by  material  evidence 
in  the  case." 

At  the  same  place,  Forms  of  Procedure  quotes  the  following  definition  of  a  Federal 
court  (U.  S.  v.  Newton.  52  Fed.  Rep.  290): 

"It  is  an  honest,  substantial  misgiving,  generated  by  insufficiency  of  proof.  It 
is  not  a  captious  doubt,  nor  a  doubt  suggested  by  the  ingenuity  of  counsel  or  jury, 
and  unwarranted  by  the  testimony ;  nor  is  it  a  doubt  born  of  a  merciful  inclination 
to  permit  the  defendant  to  escape  conviction,  nor  prompted  by  sympathy  for  him 
or  those  connected  with  him."  See  also  File  26251-11281,  Sec.  Navy,  Dec.  9,  1915. 

The  following  definitions  have  been  sustained  by  the  Supreme  Court: 

"  A  reasonable  doubt  is  not  an  unreasonable  doubt— that  is  to  say,  by  a  reasonable 
doubt  you  are  not  to  understand  that  all  doubt  is  to  be  excluded;  it  is  impossible 
in  the  determination  of  these  questions  to  be  absolutely  certain.  You  are  required 
to  decide  the  question  submitted  to  you  upon  the  strong  probabilities  of  the  case, 
and  the  probabilities  must  be  so  strong  as  not  to  exclude  all  doubt  or  possibility  of 
error,  but  as  to  exclude  reasonable  doubt."  (Dunbar  v.  U.  S.  156  U.  S.  199.) 

"  The  court  charges  you  that  the  law  presumes  the  defendant  innocent  until  proven 
guilty  beyond  a  reasonable  doubt.  That  if  you  can  reconcile  the  evidence  before 
you  upon  any  reasonable  hypothesis  consistent  with  the  defendant's  innocence,  you 
should  do  so,  and  in  that  case  find  him  not  guilty.  You  are  further  instructed  that 
you  can  not  find  the  defendant  guilty  unless  on  all  the  evidence  you  believe  him  guilty 
beyond  a  reasonable  doubt. 

"  The  court  further  charges  you  that  a  reasonable  doubt  is  a  doubt  based  on  reason, 
and  which  is  reasonable  in  view  of  all  the  evidence.  And  if,  after  an  impartial  com- 
parison and  consideration  of  all  the  evidence,  you  can  candidly  say  that  you  are  not 
satisfied  of  the  defendant's  guilt,  you  have  a  reasonable  doubt;  but  if,  after  such 
impartial  comparison  and  consideration  of  all  the  evidence,  you  can  truthfully  say 
that  you  have  an  abiding  conviction  of  the  defendant's  guilt,  such  as  you  would  be 
willing  to  act  upon  in  the  more  weighty  and  important  matters  relating  to  your  own 
affairs,  you  have  no  reasonable  doubt."  (Hopt  v.  Utah,  120  U.  S.  439.) 

It  will  be  noted  that  the  definition  here  given  provides  that  if  the  evidence  can  be 
reconciled  upon  any  "reasonable"  hypothesis  consistent  with  the  defendant's  inno- 
cence, he  should  be  acquitted.  In  the  same  case  the  Supreme  Court  made  the  fol- 
lowing comment  with  reference  to  the  general  subject: 

"  Out  of  the  domain  of  the  exact  sciences  and  actual  observation  there  is  no  absolute 
certainty.  The  guilt  of  theaccused,in  the  majority  of  criminal  cases,  must  necessarily 
be  deduced  from  a  variety  of  circumstances  leading  to  proof  of  the  fact.  Persons  of 
speculative  minds  may  in  almost  every  such  case  suggest  possibiities  of  the  truth 
being  different  from  that  established  by  the  most  convincing  proof.  The  jurors  are 
not  to  be  led  away  by  speculative  notions  as  to  such  possibilities." 


REASONABLE   DOUBT.  507 

A  definition  which  is  believed  to'  be  very  satisfactory,  and  which  was  quoted  to 
the  court  in  a  recent  case,  is  the  following: 

"A  reasonable  doubt  of  guilt  is  a  doubt  growing  reasonably  out  of  the  evidence, 
or  the  lack  of  it.  It  is  not  a  captious  doubt;  not  a  doubt  engendered  merely  by  sym- 
pathy for  the  unfortunate  position  of  the  defendant,  or  a  dislike  to  accept  the  responsi- 
bility of  convicting  a  fellow  man.  If.  having  weighed  the  evidence  on  both  sides, 
you  reach  the  conclusion  that  the  defendant  is  guilty  to  that  degree  of  certainty  that 
would  lead  you  to  act  on  the  faith  of  it  in  the  most  important  and  critical  affairs  of 
your  life,  you  may  properly  convict  him.  Proof  beyond  a  reasonable  doubt  is  not 
proof  to  a  mathematical  demonstration.  It  is  not  proof  beyond  the  possibility  of 
mistake.  If  such  were  the  standard  of  evidence  required,  most  criminals  would  go 
unwhipped  of  justice."  (U.  S.  v.  Youtsey.  91  Fed.  Rep.  868.)  C.  M.  0. 19, 1915,  6-7. 
See  also  G.  C.  M.  Rec.  30485,  pp.  693,  696,  831-832.  Compare  obiter  dictum  in  Fid. 
Mut.  Life  Assn.  v.  Mettler  (185  U.  S.317). 

2.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  81. 

3.  Promotion — The  burden  of  proving  fitness  for  promotion  beyond  a  reasonable  doubt 

is  upon  the  candidate.    See  PROMOTION,  19-21. 

4.  Same— Theory  of  Government  proving  beyond  a  reasonable  doubt  the  unfltness  of 

the  candidate.    See  PROMOTION,  19. 

RECEIPTS. 

1.  Pay  receipts— Destroyed  by  a  paymaster's  clerk,  who  was  tried  by  general  court-martial. 

C.  M.  O.26, 1915. 

2.  Records  of  proceedings— Judge  advocate  should  secure  receipt  or  waiver  of  copy  of 

record  of  proceedings  from  accused.    See  RECORDS  OF  PROCEEDINGS,  32. 

RECEIVING  SHIPS. 

1.  Cavite,  P.  I. — Service  on,  is  not  sea  service.   See  PAY  CLERKS  and  CHIEF  PAY  CLERKS,  3. 

2.  Prisoners— Statusof  prisonersonboardreceivingshipsawaitingtrial.    See  PRISONERS,  4 

RECESS. 

1.  Appointments.    See  COMMISSIONS,  29;  PAY,  82. 

2.  Record  of  proceedings — Shall  show  that  court  reconvened  after  recess  as  well  as  fact 

that  court  took  a  recess.    C.  M.  0. 15, 1910, 5. 

3.  Witness — On  stand  at  beginning  of  recess  cautioned  that  oath  is  still  binding  at  end 

of  recess.    C.  M.  O.  47, 1910, 5. 

4.  Same— Numbering  of  questions.    See  RECORD  OF  PROCEEDINGS,  95. 

RECESS  APPOINTMENTS.    See  COMMISSIONS,  29;  PAY,  82. 

RECOIL  CYLINDERS. 

1.  Ordnance  officer — Tried  by  general  court-martial  for  not  properly  inspecting  recoil 
cylinders  to  insure  that  they  were  filled.    See  ORDNANCE  OFFICERS,  1. 

RECOMMENDATIONS  TO  CLEMENCY.    See  CLEMENCY. 

RECONSIDERATION. 

I.  Comptroller  of  the  Treasury's  decision.    See  COMPTROLLER  OF  THE  TREASURY,  il_ 

RECONVENING. 

1.  Boards,    examining — Reconvening   on   own    initiative.    See    NAVAL    EXAMINING 

BOARDS,  18. 

2.  Boards  of  Inquest.    See  BOARDS  OF  INQUEST,  7. 

3.  Boards  of  investigation.    See  BOARDS  OF  INVESTIGATION,  16. 

4.  Court  reconvening  of  itself.    See  COURT,  147-149. 

5.  Courts  of  inquiry.    See  COURTS  OF  INQUIRY,  47. 

6.  Dissolved  court.    See  CONVENING  AUTHORITY,  52;  COURT,  69-71, 144. 

7.  Error  in  name  of  accused — Reconvening  of  court  after  trial  has  been  finished,  for 

the  purpose  of  re-forming  its  finding  and  sentence,  on  account  of  error  in  name  of 
accused  in  specification  and  in  the  evidence;  and  permitting  a  witness  to  give  addi- 
tional testimony  after  having  pronounced  it  correct  and  to  recorrect  it,  are  irregu- 
larities in  procedure.  File  26287-494. 

8.  Exigencies  of  the  service— Prevented  reconvening.    See  COURT,  142, 146. 

9.  General  court-martial — Could  not  be  reconvened  owing  to  exigencies  of  service. 

See  CONVENING  AUTHORITY,  51;  COURT,  146. 
10.  Same— Reconvening  of  itself.    See  COURT,  147-149. 

II.  Same— Reduced  below  legal  minimum.    See  COURT,  143. 


508  RECONVENING. 

12.  Naval  Examining  Boards— On  own  motion.    See  NAVAL  EXAMINING  BOARDS,  18. 

13.  Quorum— Reconvening  of  court  impracticable  as  membership  was  reduced  below 

legal  minimum.    See  COURT,  142. 

14.  Sentence — Adjudged  prior  to  dissolution  may  be  approved.    See  COURT,  68-71.  144. 

15.  Summary  courts-martial— Reconvening  by  commander  in  chief.    C.  M.  O.  29, 
1915,  10.    See  also  RECONVENING,  lei. 

16.  Same — By  senior  officer  present — Where  the  commander  in  chief  of  a  fleet  or  squadron, 

in  reviewing  the  records  of  summary  courts-martial,  isof  theopinion  that  the  sentence 
is  entirely  inadequate,  he  has  the  power  to  refer  the  record  back  to  the  convening 
authority  with  directions  to  reconvene  the  court  for  reconsideration  of  the  sentence. 
File  2214-13,  Sec.  Navy,  March  22,  1906;  C.  M.  O.  29,  1915,  11.  See  also  File  2G287- 
2100-1/2:1,  Sec.  Navy,  Oct.  7,  1914. 

17.  Same— Reconvening  of  itself.    See  COURT,  149. 

RECORD  OP  A  "COURT-MARTIAL"  CONVENED  AT  NAVAL  ACADEMY. 

1.  Copy— Supplied  Court  of  Claims  on  proper  call.    File  4051-3,  J.  A.  G.,  July  1, 1909,  p.  3. 

RECORD  OF  ACCUSED. 

I.  Clemency.    See  CLEMENCY,  48-52. 

RECORDS  OF  COURTS  OF  INQUIRY.    See  COURTS  OF  INQUIRY,  20. 
RECORDS  OF  GENERAL  COURTS-MARTIAL.    See  RECORD  OP  PROCEEDINGS. 

RECORD  OF  PROCEEDINGS. 

1.  Accused— Record  of  proceedings  should  show  affirmatively  that  accused  was  present 

during  his  trial  (See  ACCUSED,  1-9);  that  he  had  opportunity  to  cross-examine  wit- 
nesses of  prosecution  (See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED.  16);  that  he  was 
warned  as  to  the  effects  oi  his  plea  of  "guilty  "  (See  ACCUSED,  64;  ARRAIGNMENT^); 
that  he  did  not  desire  to  offer  any  evidence,  if  such  be  the  case  (C.  M.  0. 14, 1910, 8; 
15, 1910, 9) ;  that  he  was  not  warned  9r  withdrew  after  being  a  witness  ( See  ACCUSED, 
63);  that  if  he  desires  to  be  a  witness  in  his  own  behalf  he  goes  on  the  stand  at  his  own 
request  (C.  M.  O.  37,  1909,  8);  that  he  was  afforded  an  opportunity  to  challenge  (C. 
M.  O.  37, 1909, 8;  CHALLENGES,  18);  that  he  was  ready  for  trial  (C.  M.  O.  37, 1909,  8); 
that  he  was  present  when  precept  and  modifications  thereof  were  read  (See  ACCUSED, 
1-9) ;  that  he  was  asked  if  he  desired  counsel  and,  if  so,  that  counsel  entered  (See  COUN- 
SEL, 2,  47);  that  when  he  pleads  "guilty"  he  does  not  desire  to  offer  any  evidence 
in  extenuation  as  to  character  or  of  a  strictly  palliative  nature  (C.  M.  O.  14, 1910.  8. 
See  also  C.  M.  0. 15, 1910,  9). 

2.  Same— Entitled  to  a  copy  of  record  of  proceedings.    See  RECORD  OF  PROCEEDINGS, 

32-37. 

3.  Aloud— When  record  states  a  document  was  read,  it  is  understood  that  it  was  read 

aloud.    See  ALOUD,  1. 

4.  Amendments.    See  CORRECTIONS,  4,  5. 

5.  Arguments — Admissibility  of  evidence  and  upon  interlocutory  proceedings.    See 

ARGUMENTS,  4. 

6.  Same — Judge  advocate  and  counsel  in  closing.    See  ARGUMENTS,  1-4. 

If  the  judge  advocate  and  accused  do  not  wish  to  make  a  closing  argument  it  should 
be  so  stated  in  the  record.    G.  C.  M.  Rec.  29934. 
Copy  of  argument  appended  to  record  of  proceedings.    See  ARGUMENTS,  5. 

7.  Army  trial— Record  as  evidence.    See  ARMY,  13. 

8.  Arraignment.    See  ARRAIGNMENT,  31. 

9.  Arrest — In  proper  cases  record  should  show  accused  was  released  from  arrest  and 

restored  to  duty.    See  ARREST,  27;  CONVENING  AUTHORITY,  4. 
10.  Authentication— Courts  of  inquiry  record.    See  COURT  OF  INQUIRY,  4,  43. 

II.  Same — Deck  courts — Signed    by  deck-court   officer  only.    (Forms  of  Procedure, 

1910,180). 

12.  Same — General  courts-martial.    See  AUTHENTICATION  OF  SENTENCES;  COURT,  175; 

MEMBERS  OF  COURTS-MARTIAL,  1, 12,  48. 

13.  Same— Each  member  of  the  court  and  judge  advocate  signed  after  the  recording  of 

the  sentence  and  again  after  recording  an  additional  finding  and  recommendation. 
The  department  held  that  one  set  of  signatures  would  have  been  sufficient .  C .  M .  O . 
78, 1905. 


RECORD   OF  PROCEEDINGS.  509 

14.  Same— The  sentence  having  been  recorded,  the  proceedings  in  each  separate  case  tried 

by  the  same  court  are  required  by  law  to  be  signed  by  all  the  members  present  when 
the  judgment  is  pronounced,  and  also  by  the  judge  advocate.  (R-810.) 

In  a  certain  case  it  was  noted  that  at  the  close  of  the  second  day's  proceedings  the 
record  was  authenticated  by  all  the  members  of  the  court  and  the  judge  advocate. 

The  third  day  the  witnesses  who  had  previously  testified  were  called  before  the 
court  to  verify  their  testimony;  the  record  of  proceedings  of  the  previous  day  was 
read,  an  amendment  made  thereto  and  then  approved;  but  the  record  of  the  third 
day's  proceedings,  which  also  completed  the  trial,  shows  that  it  was  authenticated 
by  only  the  president  and  the  judge  advocate. 

When  the  sentence  has  been  recorded ,  the  proceedings  in  each  separate  case  tried 
are  required  by  law  to  be  signed  by  all  the  members  present  when  the  judgment  is 
pronounced,  also  by  the  judge  advocate.    C.  M.  0. 14, 1910, 10. 
The  judge  advocate  having  neglected  to  sign  the  general  court-martial  record  it 
was  returned  for  his  signature.    Fue  11137-02;  22  J.  A.  G.  72. 

15.  Same — Summary  courts-martial.   See  SUMMARY  COURTS-MARTIAL,  4. 

16.  Same — A  member  of  a  summary  court-martial  may  be  ordered  to  sign  the  record. 

See  MEMBERS  OF  COURTS-MARTIAL,  48. 

17.  Bad-conduct  discharge— Brief  synopsis  of  service  and  offenses  of  accused  to  be  spread 

on  record.    See  BAD  CONDUCT  DISCHARGE,  10.  11. 

18.  "Behind  record" — Department  declined  to  go  behind  the  record.    C.  M.  O.  6,  1915, 

6.    See  also  JEOPARDY,  FORMER,  38  (p.  302);  JUDGE  ADVOCATE,  105. 

19.  Binding.   See  BENDING  OF  COURT-MARTIAL  RECORDS. 

20.  Certificate  of  medical  officer.   See  CONFINEMENT,  5. 

21.  Challenges.    See  CHALLENGES,  18. 

22.  Charges  and  specifications — Original  charges  and  specifications  should  be  prefixed, 

not  appended,  to  the  record.    See  CHARGES  AND  SPECIFICATIONS,  85. 

23.  Same — Date  accused  received  copy  should  be  entered  on  record.    See  CHARGES  AND 

SPECIFICATIONS,  86. 

24.  Civil  courts—  Requesting  copies  of.    See  CIVIL  COURTS,  2;  COURTS  OF  INQUIRY,  12; 

GENERAL  ORDER  No.  121,  Sept.  17, 1914,  23. 

25.  Clemency,  recommendations  to.   See  CLEMENCY,  47. 

26.  Clerical  errors — Clerical  errors  may  be  amended  by  the  court  without  the  presence 

of  the  accused,  but  they  are  not  to  be  corrected  in  an  informal  manner  by  erasure 
or  interlineation.  The  legal  procedure  is  for  the  proper  officer  to  reconvene  the  court, 
calling  its  attention  in  the  order  for  reassembling  to  the  error  requiring  correction, 
and  for  the  court,  on  reassembling,  to  continue  the  record  by  a  report  of  the  pro- 
ceedings of  the  additional  session  in  which  the  amendment  is  made.  (R-838  (3).) 
C.  M.  O.  5,  1912,  14.  See  also  ACCUSED,  8. 

27.  Clerical  omissions — Of  important  steps  in  the  proceedings.    C.  M.  O.  55,  1910,  9; 

15,  1910,9. 

28.  Clerks  or  reporters.    See  CLERKS  OR  REPORTERS  OF  GENERAL  COURTS-MARTIAL. 

29.  "Clips"— Should  not  be  used  in  binding  records.    See  "CLIPS,"  1. 

30.  Complete  In  itself — The  record  of  proceedings  of  each  case  must  be  complete  in  itself, 

without  dependance  on  or  reference  to  any  other.    C.  M.  0. 15, 1910, 5-6;  17, 1910, 10. 

31.  Contents  of  general  court-martial  record — The  record  of  proceedings  to  each  case 

tried  shall  show  that  at  least  a  quorum  of  five  members  of  the  court  was  present  during 
the  trial;  that  the  accused  was  furnished  a  copy  of  the  charges  and  specifications 
indicting  him;  that  the  orders  detailing  the  members  were  read  aloud  to  the  presence 
of  the  accused;  that  he  was  afforded  an  opportunity  to  challenge  members;  and  that 
the  members,  judge  advocate,  reporter  or  clerk,  and  witnesses  were  duly  sworn. 
It  shall  further  show  the  arraignment,  pleas,  motions,  objections  made  and  grounds 
therefor,  all  testimony  taken  and  documentary  evidence  received ,  decisions  and  orders 
of  the  court,  adjournments,  closing  arguments^,  findings,  and  sentence  or  acquittal; 
to  short,  the  entire  proceedings  of  the  court  which  are  necessary  to  a  complete  under- 
standing by  the  reviewing  authority  of  the  whole  case  and  every  incident  material 
thereto.  (R-827.) 

It  is  most  necessary  that  the  record  show  every  part  and  feature  of  the  proceed  togs 
material  to  a  complete  history  of  the  trial,  to  order  that  the  reviewing  officer  may  have 
a  correct  understanding  as  to  the  justice  of  the  finding  and  sentence,  and  this  involves 
a  correct  understanding  both  of  the  circumstances  of  the  case  and  the  questions  of 
law  arising  to  the  course  of  the  investigation.  C.  M.  O.  6, 1909,  3;  55, 1910,  9. 


510  RECORD  OF   PROCEEDINGS. 

32.  Copy  of— Right  of  accused  to— On  November  24,  1908,  the  department  issued  the 

folio  wing  order: 

"Owing  to  the  great  demand  made  on  the  department  by  persons  tried  by  general 
court-martial  or  their  authorized  representatives,  for  copies  of  the  record  of  proceedings 
of  their  trial,  which,  owing  to  the  lack  of  sufficient  clerical  force,  it  is  difficult  to  supply, 
it  is  directed  that  hereafter,  in  each  case  tried, the  judge  advocate  secure  from  the 
accused  a  waiver  of  his  right  to  a  copy  of  the  proceedings,  or,  if  the  accused  desires 
a  copy,  the  record  of  proceedings  be  made  in  duplicate,  and  a  copy  furnished  to  the 
accused  at  the  time  of  his  trial.  The  finding,  sentence,  and  action  of  the  convening 
authority  not  to  be  furnished  him  until  after  the  publication  of  the  sentence,  or,  in 
trials  ordered  by  the  department,  it  will  be  furnished  by  the  department  upon  appli- 
cation of  the  accused. 

"  The  waiver  of  the  right  to  a  copy  of  the  proceedings,  or,  when  a  copy  is  furnished , 
a  receipt  therefor,  will  in  each  case  be  attached  to  the  record  when  forwarded  to  the 
department."  C.  M.  O.  21,  1909,  2-3.  See  also  C.  M.  O.  47,  1910,  9;  21,  1910, 11;  8, 
1911,  7:1, 1912,  4;  1, 1913,  5;  23, 1916,  2;  File  20S3<>-7:4.  J.  A.  G.,  Mar.  3, 1910. 

33.  Same — The  waiver  or  receipt  for  the  copy  of  the  record  furnished  the  accused  should 

be  appended,  not  prefixed,  and  should  be  the  last  document  appended  to  the  record. 
C.  M.  O.  19,  1911,  4.  See  also  File  26251-11604,  Sec.  Navy,  Feb.  18,  1916;  C.  M.  O. 
25,  1916. 

34.  Same— Furnished  to  civil  courts.    See  CIVIL  COURTS,  2;  COURTS  OF  INQUIRY,  12; 

GENERAL  ORDER  No.  121,  Sept.  17,  1914,  23. 

35.  Same— In  a  case  where  an  accused  (paymaster's  clerk)  had  received  his  copy  and 

later  his  attorney  made  a  request  for  another  the  department  refused  to  grant  such 
request  but  informed  attorney  that  he  could  have  a  copy  made  at  his  own  expense. 
File  2(>251-4858:22,  Sec.  Navy,  Apr.  19,  1916. 

36.  Same— Copy  of  record  of  proceedings  should  not  be  furnished  an  accused  where,  during 

the  course  of  the  trial,  the  charge  is  withdrawn.  File  26504-118.  Sec.  Navy,  Dec. 
22,  1911. 

37.  Same— Copy  was  furnished  accused,  the  records  proving  this  fact.    Later,  the  accused 

claimed  he  had  not  received  a  copy,  and  requested  that  he  be  furnished  same.  Depart- 
ment stated  that  it  was  "willing  that  he  have  an  additional  copy  provided  he  pay 
for  copying  same,"  etc.  File  26251-314:1,  Sec.  Navy,  Oct.  9, 1916. 

38.  Corrections.    See  CORRECTIONS,  4,  5. 

39.  Counsel.    See  COUNSEL,  2,  47. 

40.  Court  cleared— When  the  court  is  cleared  for  the  purpose  of  examining  the  written 

statement  of  the  accused,  it  should  be  stated  in  the  record  that  the  court  was  cleared 
for  such  purpose,  and  not  merely  that  the  "court  was  closed,"  or  that  the  "court 
was  cleared."  C.  M.  O.  28, 1910,  6.  See  also  COURT,  16,  20. 

41.  Court  must  be  legally  constituted— The  record  must  show  on  its  face  that  the 

court  is  legally  constituted.    See  COURT,  43. 

42.  Court  of  inquiry— Record  of  proceedings.    See  COURT  OF  INQUIRY,  12, 17, 18,  43. 

43.  Cover  page  of  record.    See  COVER  PAGE  OF  RECORDS. 

44.  Date— Accused  received  charges  and  specifications,  should  be  entered  on  record.    C. 

M.  0.17,1910,5. 

45.  Same— Date  on  cover  sheet  should  be  correct.    C.  M.  O.  27, 1913, 12.    See  also  COVER 

PAGE  OF  RECORDS,  2. 

46.  Death  of  member— Of  a  summary  court-martial  before  signing.    C.  M.  0. 12, 1915,  8. 

See  also  MEMBERS  OF  COURTS-MARTIAL,  24. 

47.  Deck  courts.   See  DECK  COURTS,  17.  24,  31,  47. 

48.  Department— Declined  to  go  behind  the  record.    C.  M.  O.  6, 1915,  6.    See  also  JUDGE 

ADVOCATE,  105. 

49.  Documents— Original  or  certified  copies  of  documents  introduced  in  evidence  must 

be  appended  even  if  accused  is  acquitted.    C.  M.  0. 16, 1908;  41, 1914,  4,  5. 

Record  must  show  accused  had  opportunity  to  object  to  introduction  of  docu- 
mentary evidence.  See  EVIDENCE,  DOCUMENTARY,  45. 

50.  Same — When  the  record  states  that  a  paper,  document,  or  testimony  was  read,  it  is 

understood  that  it  was  read  aloud.    See  ALOUD. 

51.  Same— Not  to  be  appended  unless  offered  in  evidence.    See  EVIDENCE,  DOCUMENTARY, 

45. 

52.  Same — Used  in  evidence,  original  or  certified  copy  should  be  appended  and  notation 

made  in  record  to  this  effect.  See  EVIDENCE,  DOCUMENTARY,  45;  SERVICE  RECORDS, 
23. 


RECORD   OF  PROCEEDINGS.  511 

53.  Errors  in  record— President,  members,  and  judge  advocate  responsible  for  errors  in 

general  court-martial  record  (see  RECORD  OF  PROCEEDINGS,  54);  misspelled  words 
(C.  M.  0. 27, 1913, 11;  28, 1915);  judge  advocate  should  make  correct  entries  (see  JUDGE 
ADVOCATE,  13);  letter  of  transmittal  and  charges  and  specifications  read  "original^/ 
preferred"  instead  of  "original  prefixed"  (C.  M.  O.  27,  1913,  11);  clerical  omissions  of 
important  steps  in  the  proceedings  (C.  M.  O.  55,  1910,  9;  15.  1910,  9);  clerical  errors 
(C.  M.  O.  47,  1910, 5;  28, 1910,  7);  previous  conviction  introduced  but  omitted  inad- 
vertently from  record  may  be  entered  on  record  in  revision  as  it  was  a  clerical  error 
(see  PREVIOUS  CONVICTIONS,  5);  errors  in  (C.  M.  O.  74, 1899,  36,  1905,  3);  court,  being 
already  cleared,  was  still  further  cleared  for  deliberation  three  separate  times  (C.  M. 
O.  78,  1905,  1);  "negligently  made  and  kept  up"  (C.  M.  O.  74,  1899).  See  also 
RECORD  OF  PROCEEDINGS,  65,  66,  77,  78. 80,  102. 

54.  Same—The  members  of  the  court,  as  well  as  the  judge  advocate,  are  responsible  for 

errors  appearing  in  the  record  of  proceedings.  C.  M.  O.  55, 1910,  pp.  9-10;  14, 1913, 
p.  5;  27,  1913,  p.  12;  17,  1915,  2;  6,  1916;  10,  1916. 

55.  Evidence— A  record  of  proceedings  is  not  competent  evidence  in  another  trial.    See 

EVIDENCE  DOCUMENTARY,  43,  44;  FALSE  SWEARINGS,  5;  WITNESSES,  52  (p.  651). 

56.  Same — Army  record  of  proceedings.    See  ARMY,  13;  EVIDENCE,  DOCUMENTARY,  43. 

57.  Evidence  in  extenuation — The  accused  went  on  the  stand  at  his  own  request  as  a 

witness  in  extenuation  of  his  acts,  but  the  entry  on  the  record  does  not  indicate  that 
he  was  on  the  stand  hi  extenuation,  as  required  by  the  Forms  of  Procedure,  1910, 
p.  36  (see  also  C.  M.  O.  8,  1911.  4-6).  C.  M.  O.  17,  1915,  2. 

58.  Exceptions  or  protests— Not  to  be  entered  on  record.    See  BILLS  OF  EXCEPTIONS,  1; 

EXCEPTIONS,  2. 

59.  Final  disposition  of  records — The  records  of  proceedings  of  all  courts-martial  shall 

be  forwarded  direct  to  the  Judge  Advocate  General  by  the  reviewing  authority  after 
acting  thereon,  or  in  the  case  of  general  courts-martial  convened  by  the  Secretary 
ofthe  Navy,  by  the  presiding  officers  of  such  courts.  All  communications  pertaining 
to  questions  of  law  arising  before  courts-martial,  or  to  the  proceedings  thereof,  which 
may  require  the  action  of  the  department,  shall  likewise  be  forwarded  direct  by  such 
presiding  officers .  (R-850). 

After  the  proceedings  and  sentence,  with  the  recommendation  to  clemency,  if  any, 
have  been  signed,  the  action  of  the  court,  whether  an  adjournment  or  the  taking  up 
of  a  new  case,  shall  be  recorded,  and  this  entry  having  been  authenticated  by  the 
signatures  of  the  president  and  the  judge  advocate,  the  record  shall  be  forwarded 
by  the  judge  advocate  to  the  convening  authority,  or,  in  the  United  States,  where  the 
court  is  convened  by  order  of  the  department,  direct  to  the  Judge  Advocate  General. 
(R-812.) 

60.  Same— Deck  courts.    See  DECK  COURTS,  47. 

61.  Same— Summary  courts-martial.    See  COURT,  149;  SUMMARY  COURTS-MARTIAL,  64-66. 

62.  Findings.    See  FINDINGS. 

63.  ''First  day"— Entry  on  record  of  proceedings.    C.  M.  O.  38,  1914,  2.    See  also  RECORD 

OF  PROCEEDINGS,  89. 

64.  Indexes.    See  INDEX. 

65.  Infirmities  of  record— The  department  stated  in  part,  there  are  certain  infirmities 

of  record,  but  it  is  not  thought  necessary  to  comment  upon  them,  as  none  is  of  such 
character  as  to  make  it  proper  that  any  essential  part  of  the  proceedings  be  set  aside 
or  that  the  sentence  be  reduced.  C.  M.  0. 173. 1902. 

66.  Irregularities.    C.  M.  O.  37,  1909,  7-8;  55,  1910,  9;  28,  1910,  7. 

67.  Judge  advocate— Responsible  for  errors  in.    See  JUDGE  ADVOCATE,  110. 

Permitted  to  enter  his  opinion  on  record  if  court  does  not  follow  his  advice. 
See  JUDGE  ADVOCATE,  97. 

68.  Length  of  record— The  department  recorded  a  criticism  upon  the  "wholly  needless 

length  of  the  record."    G.  C.  M.    Rec.  13370. 

69.  Letter  of  transmittal — Letter  transmitting  copy  of  charges  and  specifications  to 

commanding  officer  for  delivery  to  accused,  not  to  be  read  in  court  or  appended  to 
record.  See  LETTERS,  31. 

70.  Lost  record — Sentence  may  be  carried  into  effect  if  approved  before  being  lost.    File 

27201-48,  July  21,  1909;  26287-205;  26262-990,  991,  992,  993,  994  (lost  G.  C.  M.  Records); 
26287-1839,  1839:1;  26287-1955:1;  26287-1996  (lost  S.  C.  M.  Records). 

71.  Marking  documents.    See  CHARGES  AND  SPECIFICATIONS,  59. 

72.  Medical  officer's  certificate— In  cases  of  confinement  exceeding  ten  days  on  reduced. 

rations.    See  CONFINEMENT,  5. 

50756°— 17 33 


512  RECORD   OF  PROCEEDINGS. 

73.  Members — Responsibility  of  members  for  errors  in  record.    See  RECORD  OP  PROCEED- 

INGS, 54. 

74.  Same — May  be  ordered  to  sign  record.    See  MEMBERS  OF  COURTS-MARTIAL,  48. 

75.  Same— Responsibility  of  members  that  record  is  bound  properly.    See  BINDING  OF 

COURTS-MARTIAL  RECORDS. 

76.  Same— Death  of  before  signing  record.    See  MEMBERS  OF  COURTS-MARTIAL,  24. 

77.  Minor  errors— A  critical  examination  of  the  entire  record  shows  that  technical  errors 

of  a  minor  nature  wore  occasionally  omitted  by  the  court  hi  dealing  with  the  many 
objections  interposed  by  counsel  for  the  accused;  but  none  of  these  errors  were  of  a 
substantial  character,  nor  are  any  of  them,  of  such  importance  as  to  require  special 
comment.  C.  M.  0. 117.  1902,  8. 

The  department  stated,  "numerous  errors  and  irregularities  are  observed  therein, 
relating  chiefly  to  methods  of  examination  of  witnesses  and  preparation  of  the 
record  itself,  which,  in  view  of  the  department's  recent  action  in  calling  the  atten- 
tion of  this  same  court  to  faults  of  a  similar  character,  are  not  deemed  sufficiently 
important  to  require  enumeration  or  comment."  C.  M.  O.  29,  1902.  See  aUo  CRITI- 
CISM OF  COURTS-MARTIAL.  28. 

78.  Minor  Irregularities.    C.  M.  O.  28, 1915. 

79.  Misspelled  words.    See  CRITICISM  OF  COURTS-MARTIAL,  40. 

80.  Name  of  member  omitted  from  record— The  name  of  one  of  the  members  who 

authenticated  the  record  was  omitted  from  among  those  recorded  as  present  at  the 
beginning  of  the  trial.  This  irregularity  was  not  considered  so  serious,  however,  as 
to  invalidate  the  proceedings,  the  judge  advocate  having  furnished  a  certificate  that 
the  officer  who  signed  the  record  and  was  not  entered  in  the  record  as  presenc  during 
the  proceedin.es  was  in  fact  present,  and  that  the  omission  of  his  name  was  a  clerical 
error.  C.  M.  0. 23, 1910,7. 

81.  Nolle  prosequi— Copy  of  record  of  proceedings  should  not  be  furnished  accused  where 

during  the  course  of  the  trial,  the  charge  is  withdrawn.  See  RECORD  OF  PROCEED- 
INGS, 36. 

82.  Opinion— Of  judge  advocate  allowed  on  record.    See  JUDGE  ADVOCATE,  97. 

83.  Orders  or  copies  of  orders  of  president  and  members— Should  not  be  appended 

to  record.    C.  M.  O.  35, 1900. 

84.  Original— The  department  is  reluctant  to  send  out  original  records — "The  record  of 

the  court's  proceedings  in  this  case  is  on  file  in  the  office  of  the  Judge  Advocate  General 
of  the  Navy  and  is  bound  in  a  permanent  volume  containing  the  original  of  43  other 
trials  by  general  courts-martial.  The  department  is  reluctant  to  send  out  original 
records  of  this  character,  which,  in  case  of  possible  loss  or  injury,  could  never  be 
replaced.  File  26201-246,  Sec.  Navy,  Dec.  1,  1913.  See  File  26251-10780,  J.  A.  G. 
Aug.  16,  1915,  where  department  transmitted  to  a  U.  S.  attorney  an  original  record 
of  a  general  court-martial;  File  26251-11340:6,  Sec.  Navy,  Jan.  13, 1916,  where  depart- 
ment offered  an  original  general  court-martial  record  to  the  Governor  of  a  State;  File 
8309-109:2,1916,  where  department  sent  an  original  court  of  inquiry  record  to 
Congress.  See  also  RECORD  OF  PROCEEDINGS,  85. 

85.  Same— The  Secretary  of  the  Navy  is  by  law  responsible  for  the  safekeeping  of  the 

department's  records,  and  can  not  furnish  same  for  use  hi  civil  courts.  See  Maurice 
v.  Worden,  54  Md.,  233. 

The  department  is  reluctant  to  send  out  original  records  of  general  court-martial 
cases,  which ,  in  case  of  possible  loss  or  injury,  could  never  be  replaced .  File  26251-246 
Sec.  Navy,  Dec.  1, 1913. 

While  the  department  will  not  furnish  in  the  case  of  legal  controversies,  at  the 
request  of  the  parties  litigant,  copies  of  such  records,  it  will,  in  proper  cases,  do  so 
upon  call  of  the  court  before  which  the  litigation  is  pending.  C.  M.  O.  6, 1915,  p  8; 
20,  1915,  p.  6. 

If  the  court  calls  for  copies  of  such  records  the  request  should  be  addressed  to  the 
Secretary  of  the  Navy  and  should  state  that  the  copies  are  to  be  made  at  the  expense 
of  the  party  for  whom  furnisned,  and  should  also  state  very  clearly  for  what  purpose 
the  records  are  desired  and  what  is  the  nature  of  the  litigation  in  which  they  are  to  be 
used,  as  this  information  will  be  necessary  for  the  consideration  of  the  Secretary  of 
the  Navy  in  deciding  whether  or  not  conies  of  these  records  should  be  furnished. 
See  File  12475-64.  J.  A.  G.,  Aug.  9, 1915.  See  also  11  Op.  Atty.  Gen.,  137;  RECORD  OF 
PROCEEDINGS,  84. 


RECORD   OF  PROCEEDINGS.  513 

86.  Pay— Notation  must  be  made  on  record  that  checkage  of  pay  has  been  made  pursuant 

to  the  sentence.  C.  M.  O.  34, 1913,  5.  Pay  officer  must  sign  such  notation.  C.  M. 
0.34,1913,5.  Theamounfof  such  checkage  should  be  shown.  C.  M.  O.  24,1909, 3. 
Rate  of  pay  should  appear  on  record.  C.  M.  0. 34, 1913,  6.  See  also  DECK  COURTS, 
35-41. 

87.  Pay  account  status— Made  a  part  of  summary  but  not  general  court-martial  record. 

See  ACCUSED,  54. 

88.  Pay  officer's  notation— When  loss  of  pay  adjudged  by  court  and  remitted  under 

conditions  specified  in  1-4893.    C.  M.  O.  36,  1914,  5. 

89.  Preceding  day's  proceedings — Proceedings  of  preceding  day  shall  be  read  and 

approved  the  following  day.    C.  M.  O.  55, 1910,  9. 

90.  Precept— Certified  copy  should  be  appended,  not  prefixed.    C.  M.  O.  3C,  1914,  6;  41, 

1914,  5.    See  also  PRECEPTS,  6. 

91.  Same— Original  precept  of  a  general  court-martial  should  never  be  appended  to  record. 

C.  M.  O.  42:3.    See  also  PRECEPTS,  6. 

92.  Same— Marking  of.    C.  M.  O.27,  1913,  12.    See  also  CHARGES  AND  SPECIFICATIONS, 

59;  PRECEPTS,  14. 

93.  Previous  convictions — Certified  copy  of  should  be  appended.    See  PREVIOUS  CON- 

VICTIONS, 4. 

94.  Protests— Not  allowed  on  record.    See  EXCEPTIONS. 

95.  Questions — Should  be  numbered  properly — The  questions  asked  each  witness  shajl 

be  numbered  consecutively  throughout  his  examination.  If  the  examination  is 
interrupted  by  recess  or  adjournment  and  is  resumed  when  the  court  reassembles  or 
reconvenes,  the  numbering  shall  be  continued.  If,  however,  the  first  examination 
of  the  witness  is  completed  and,  later  in  the  trial,  he  is  recalled,  the  numbering  of 
the  questions  asked  on  this  later  examination  shall  begin  anew.  C.  M .  0 . 38, 191 4, 2. 
See  also  C.  M.  O.  74,  1899,  1;  10, 1915,  6;  G.  C.  M.  Rec.,  30084. 

96.  Receipt  of  accused— For  copy  of  record.    See  RECORD  OF  PROCEEDINGS,  32,  33. 

97.  Revision.    See  CORRECTIONS,  4;  REVISION,  30-  32. 

98.  Secretary  of  the  Navy  responsible  for.    See  RECORD  OF  PROCEEDINGS,  85. 

99.  Senior  officer  present.    See  SENIOR  OFFICER  PRESENT. 

100.  Setting  aside.    See  SETTING  ASIDE. 

101.  Summary  court-martial.    See  SUMMARY  COURT-MARTIAL, 64-69. 

102.  Termination  of  trial— From  several  records  of  proceedings  of  general  courts-martial 

received  in  the  department  it  has  been  noticed  that,  when  the  accused  and  the  judge 
advocate  had  laid  their  respective  cases  before  the  court,  there  was  no  entry  made  on 
the  record  indicating  the  termination  of  the  trial.  This  circumstance  should  invari- 
ably be  recorded.  C.M.  0. 14, 1910.9. 

103.  Waiver— Of  accused  to  copy  of  record  of  proceedings.    See  COVER  PAGE  OF  RECORDS; 

RECORD  OF  PROCEEDINGS,  32. 

104.  Witnesses— Record  should  show  that  court  had  an  opportunity  to  question  witnesses. 

C.  M.  O.36,  1914,6. 

105.  Same— When  the  court  has  finished  with  a  witness  he  shall  be  directed  to  retire,  and 

a  minute  entered  on  the  record  to  the  effect  that  the  witness  withdraws  to  show  that 
two  witnesses  are  not  in  court  at  same  time.  C.  M.  O.  51,  1914,  8-9. 

RECORDS  OF  THE  DEPARTMENT. 

1.  Alteration— It  has  been  repeatedly  stated  to  be  against  the  policy  of  the  department 

to  alter  official  records,  which  should  be  kept  inviolate;  and ,  indeed,  no  alteration  of 
the  records  could  serve  actually  to  change  the  facts  as  they  existed.  File  26510-225:1. 
J.  A.  O.,  June  10, 1911. 

2.  Amending  or  changing — The  official  records  of  the  Navy  Department  should  remain 

inviolate,  and  should  not  be  changed  a  hundred  years  after  the  events  they  purport 
to  record.  Where  it  is  alleged  that  the  record  of  an  officer  is  in  error,  the  evidence  in 
support  of  such  claim  may  be  filed  with  his  record  .thus  showing  just  what  is  claimed 
and  just  what  authority  there  is  for  such  claim.  File  24413-5,  J.  A.  G.,  July  12, 1913. 

3.  Same — If  the  Bureau  considers  that  an  injustice  has  been  done  in  this  case,  due  to  an 

omission  in  the  Navy  Regulations  on  the  subject  of  discharges,  this  may  afford  suffi- 
cient reason  for  amending  the  regulations  so  as  to  provide  for  future  cases,  but  can 
not  authorize  the  department  to  alter  its  record,  which  mint  show  the  true  facts  of  the  case. 
File  7657-214,  J.  A.  G.,  Feb.  17, 1914. 


514          RECORDS  OF  THE  DEPARTMENT. 

4  Same— Advised:  It  is  contrary  to  the  policy  of  the  department  to  alter  official  records, 
but  that  there  would  be  no  objection  to  placing  papers  embodying  an  officer's  claim 
with  other  papers  relating  to  his  case  in  the  flies  of  the  department.  File  26510-225:1, 
J.  A.  G.,  June  10, 1911.  See  also  CIVIL  WAR  SERVICE,  4. 

5.  Same — Question  of  changing  the  record  of  midshipman  dismissed  by  Secretary  of 

the  Navy  so  as  to  show  resignation.    File  5252-60,  J.  A.  G.,  Feb.  2, 1914. 

6.  Attorneys— The  department  does  not  grant  permission  to  attorneys  to  make  prelimi- 

nary and  informal  examination  of  records,  but  will  promptly  furnish  copies  of  papers 
or  records  upon  call  of  the  court  before  which  the  indictments  are  pending.  Filo 
5467-8,  Mar.  27, 1907.  See  also  RECORDS  OF  OFFICERS,  9. 

7.  Same— The  department  is  unable  to  comply  with  the  request  of  attorneys  that  original 

correspondence  be  furnished  them  from  the  department's  files,  notwithstanding 
their  offer  to  give  any  reasonable  security  for  its  custody  and  return.  The  law  requires 
that  the  records  shall  be  safely  kept  in  the  department,  and  the  Secretary  of  the  Navy 
is  made  personally  the  custodian.  (Secretary  of  the  Navy's  letter  published  in 
Maurice  ».  Worden,  54  Md.  237.)  See  also  File  12475-64,  Aug.  9, 1915. 

8.  Change  of  birthplace  and  citizenship -Of  Chinese.    See  CITIZENSHIP,  11. 

9.  Civil  courts— Department  promptly  furnishes  copies  of  records  on  proper  call  of  civil 

courts.    See  CIVIL  COURTS,  2;  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  23. 

10.  Copies — Where  copies  of  the  department's  records  on  file  in  the  Office  of  the  Judge 

Advocate  General  were  requested.  Held:  It  is  not  the  practice  of  this  office  and  it 
has  not  the  means  therefor  to  furnish  copies  of  records  on  file.  File  3333-02,  J.  A.  G., 
April  18, 1902;  20  J.  A.  G.  59. 

11.  Date  of  birth — Of  an  officer — Change  of.    See  AGE,  4. 

12.  History— The  records  of  the  Navy  Department  are  an  important  part  of  the  Nation's 

history.    See  NAME,  CHANGE  OF,  5. 

13.  Mark  of  desertion.    See  MARK  OF  DESERTION. 

14.  Names,  change  of.    See  NAME,  CHANGE  OF. 

RECORDS  OF  OFFICERS.    See  also  REPORTS  ON  FITNESS. 

1.  Admissions— By  judge  advocates  of  contents.    See  REPORTS  OF  FITNESS,  5. 

2.  Clemency — Good  record  as  a  cause  for  clemency  in  a  court-martial  trial.    See  CLEM 

ENCY,  48-52. 

3.  Copies — A  Member  of  Congress  requested  a  copy  of  the  report  containing  a  tabulation 

of  the  unfitness,  etc.    File  26260-2076:6,  Sec.  Navy,  Feb.  16,  1916. 

4.  Same— If  the  accused  (officer)  should  desire  a  copy  of  his  service  record,  the  original 

may  be  inspected  by  him,  or  his  duly  appointed  representative,  and  a  copy  made. 
C.  M.  O.  29,  1915,  8. 

"The  limited  clerical  force  of  the  office  of  the  Judge  Advocate  General  will  not 
admit  of  making  copies  of  officer's  records.  Such  records  as  you  refer  to  are  on  file 
in  this  office  and  are  open  to  the  officer's  nersonal  inspection,  or  that  of  his  duly  ap- 
pointed attorney,  either  of  whom  may  copy  or  have  copied  the  records  in  question." 
File  26260-2488:2,  J.  A.  G.,  May  4,  1916.  See  also  File  26260-3314:4. 

5.  Courts-martial — Evidence  before.    See  REPORTS  ON  FITNESS,  5-8. 

6.  Court-martial  order— Record  of  officers  printed  in  court-martial  orders.    C.  M.  O. 

3, 1911,  2;  29,  1912,  1;  32,  1912,  2;  35,  1912, 1;  36, 1912,  2;  2,  1913,  1;  3,  1913,  2. 

7.  Evidence.    See  REPORTS  ON  FITNESS,  5-8i 

8.  Examining  boards— Duty  of.    See  NAVAL  EXAMINING  BOARDS,  11. 

9.  Former  officer— "The  record  of  the  alleged  former  officer  is  available  only  for  his 

personal  inspection,  or  may  be  examined  bv  some  other  person  who  has  a  power  of 
attorney  from  the  'person  whose  record  is  desired ';  or  this  department  will  furnish 
information  therefrom  to  the  same  persons;  provided  that  the  statement  as  to  the 
'purpose  for  which  such  information  is  desired, '  is  'deemed  satisfactory  to  the  depart- 
ment.' "  File  26261-315:1,  J.  A.  G.,  Sept.  21,  1916. 

10.  Original  records  not  sent  out — "It  is  contrary  to  the  policy  of  tho  Navy  Department 

to  send  documents  forming  a  part  of  official  records  to  any  individual  on  request." 
File  26260-2488:2,  May  4,  1916. 

11 .  Removal  of  papers— Removal  of  papers  from  existing  records  of  officers  is  not  approved . 

File  4435-5,  Sec.  Navy,  May  13,  1908. 

RECORDER  OF  A  DECK  COURT.    See  DECK  COURTS,  48,  58. 

RECORDER  OF  A  SUMMARY  COURT-MARTIAL.    See  SUMMARY  COURTS-MAR- 
TIAL, 70-74. 


REDUCTION   IN   RATING.  51 5 

RECRUITING. 

1.  Accountability— Of  recruiting  officers  for  accepting  or  enlisting  unfit  or  undesirable 

men.'  See  File  7657-103. 

2.  Army.    See  File  7657-103:  2,  J.  A.  G.,  July  18.  1911. 

3.  Assumed  names— Recruiting  officer  properly  refused  to  enlist  an  applicant  under 

an  assumed  name.    See  NAME,  CHANGE  OF,  5. 

4.  Civilian  Interference — With  recruiting.    See  RECRUITING,  14. 

5.  Destruction  of  posters— By  civilians  in.    See  RECRUITING,  14. 

6.  Fraudulent  enlistment — Accused  tells  recruiting  office  of  prior  service,  enlists  and 

claims  this  as  a  defense.    See  FRAUDULENT  ENLISTMENT,  23. 

7.  Fugitive  from  Justice— Should  nbt  be  enlisted.    File  26524-207,  J.  A.  G.,  Nov.  20, 

1915,  and  Nov.  22,  1915.    See  also  CONVICTS,  2,  3;  FUGITIVE  FROM  JUSTICE. 

8.  General  court-martial— Marine  recruiting  officer  tried  by  general  court-martial. 

C.  M.  G.  19,  1915. 

9.  Hospital  apprentice— Recruiting  officer  of  the  Marine  Corps  enlisting  a  hospital 

apprentice  for  the  Navy.    File  1096-1,  J.  A.  G.,  1908. 

10.  Marine  Corps.    See  MARINE  CORPS,  74;  RECRUITING,  15. 

11.  Navy— Reports  regarding.    See  File  7657-103:2,  J.  A.  G.,  July  18, 1911,  p.  6. 

12.  Oaths — Administration  of  oaths  by  recruiting  officers.    See  OATHS,  39,  48. 

13.  Officers— Should  explain  law  to  applicants.    See   FRAUDULENT  ENLISTMENT,  78. 

RECRUITING,  17. 

14.  Posters  and  other  literature — Mutilated  in  sections  of  city  inhabited  by  the  socialistic 

element.    File  26254-1988:2,  July,  1916.    See  also  File  24694-3.  Sec.  Navy,  July  27, 1916. 

15.  Recruiting  officers  of  Marine  Corps— Duties  defined.    G.  C.  M.  Rec., 30485,  pp. 

77-89,471,517,564. 

16.  Stragglers— Recruiting  stations  are  not  authorized  to  accept  the  surrender  or  delivery 

of  stragglers  or  deserters,  nor  to  furnish  them  with  transportation  or  subsistence,  but 
will  direct  such  men  to  report  at  their  own  expense  to  the  nearest  navy  yard  or  naval 
station.  G.  0. 110  (Revised,  July,  1916),  p.  5. 

17.  Warning— Section  11  of  Instructions  for  Recruiting  Officers  of  the  United  States  Navy, 

provides  that  "each  recruit  *  *  *  shall  be  informed  that  if  he  has  had  previous 
service  the  fact  will  be  known  as  soon  as  the  papers  in  his  case  reach  the  Navy  Depart- 
ment and  that  he  will  be  tried  by  general  court-martial  for  fraudulent  enlistment 

*  *    *,    The  recruit  will  also  be  informed  that  men  who  have  been  discharged  for 

*  *    *    disability  or  other  reasons  are  not  necessarily  forever  barred  from  reentering 
the  service,  but  that  an  official  request  to  be  permitted  to  reenlist    *    *    *    will 
receive  consideration"  and  that  "if  it  is  deemea  advisable  to  reenlist  him  it  will  be 
authorized."    Article  756,  (3)  United  States  Navy  Regulations,  provides  that  "no 
one  who  has  already  been  in  the  naval  or  military  service  of  the  United  States  shall 
be  enlisted  without  showing  his  discharge  therefrom    *    *    *."    C.  M.  0. 12, 1911,4. 

REDUCTION  IN  RATING. 

1.  Absence  over  leave.    See  REDUCTION  IN  RATING,  18. 

2.  Absence  without  leave.    See  REDUCTION  IN  RATING,  18. 

3.  Attempting  to  smuggle  liquors.    See  REDUCTION  IN  RATING,  18. 

4.  Classification  tables — For  disrating.    See  REDUCTION  m  RATING,  42. 

5.  Confinement — Reduction  in  rating  and  confinement  not  both  to  be  included  in  same 

sentence  of  deck  court  or  summary  court-martial.    See  DECK  COURTS,  49. 

6.  Deck  Courts— Article  781(1),  Navy  Regulations,  1909.  must  be  construed  as  supple- 

mentary to,  but  not  in  conflict  with  the  statute  defining  powers  of  deck  courts.  File 
27217-787,  J.  A.  G.,  May  18,  1912. 

7.  Disrating.   See  REDUCTION  IN  RATING,  42. 

8.  Enlistment  expired — A  petty  officer  convicted  of  desertion  and  fraudulent  enlistment 

was  properly  sentenced  to  reduction  in  rating,  although  his  valid  enlistment  from 
which  he  deserted  had  expired  prior  to  his  trial.  File  26251-6039. 

9.  Failure  to  reduce  petty  or  noncommissioned  officer  does  not  Invalidate  sen- 

tence— Failure  to  include  reduction  in  rating  in  the  sentence  of  a  petty  or  noncom- 
missioned officer  involving  confinement  is  a  violation  of  the  Navy  Regulations,  and 
is  a  serious  omission,  but  does  not  adversely  affect  the  interests  of  the  accused  nor 
invalidate  the  sentence.  C.  M.  O.  28, 1910, 5. 

10.  Forfeiture  of  pay— Based  on  pay  of  reduced  rating.    See  REDUCTION  m  RATING,  30. 

11.  Same — Reduction  in  rating  is  not  to  be  considered  as  loss  of  pay  within  the  meaning  of 

A.  G.  N.  32.   See  PAT,  84;  REDUCTION  IN  RATING,  31. 


516  REDUCTION   IN   EATING. 

12.  Fraudulent  enlistment  of  a  petty  officer — A  petty  officer,  having  deserted,  fraudu- 

lently enlisted  and  convicted  of  both  offenses,  the  sentence  should  provide  for  reduc- 
tion in  rating  as  of  the  original  or  legitimate  enlistment  since  the  department  will 
cancel  the  fraudulent  enlistment  and  require  him  to  serve  his  sentence  under  the 
first  enlistment  as  petty  officer.  C.  M.  O.  15, 1910,  7. 

13.  Grade— Reduction  in  rating  (or  rank)  is  proper  phraseology  but  the  following  phrase- 

ology has  been  approved:  "To  be  reduced  to  the  grade  of  private,  United  States 
Marine  Corps."  C.  M.  0. 12, 1879;  28,  1881,  2. 

14.  Improper  rating — The  accused  was  sentenced  to  be  reduced  to  the  rating  of  seaman 

(from  electrician  third  class),  whereas  the  rating  below  petty  officer  in  the  branch  to 
which  he  belongs  is  landsman.  The  department  held  that  the  sentence  was  irregular. 
C.  M.  O.  49,  1910, 14. 

15.  Same— Accused  was  reduced  to  seaman  gunner  when  he  did  not  hold  a  certificate  as 

such.    See  SEAMAN  GUNNERS,  4. 

16.  Same— The  accused  was  promoted  to  water  tender  from  the  rating  of  oiler,  to  which 

rating  he  should  be  reduced.  While  his  current  enlistment  record  does  not  show  this 
promotion  it  does  show  that  the  accused  held  a  continuous-service  certificate.  This 
certificate  shows  that  the  previous  rating  held  by  the  accused  was  that  of  oiler,  and 
it  should  have  been  consulted  by  the  court  before  sentence  was  adjudged. 

In  view  of  the  wording  of  the  sentence  the  department  holds  that  it  was  the  intention 
of  the  court  that  the  accused  should  be  reduced  to  the  next  inferior  rating  to  which 
the  court  could  legally  reduce  him,  and  further  holds  that  the  words  "that  of  fireman 
first  class"  are  mere  surplusage.  (See  90  S.  and  A.  memo.,  831.] 

Subject  to  the  foregoing  remarks,  the  department  approved  the  proceedings  and 
sentence  in  this  case,  and  directed  that  the  "next  inferior  rating"  to  which  the 
accused  be  reduced  under  the  sentence  of  the  court  be  that  of  oiler,  as  required  by 
article  1693,  United  States  Navy  Regulations.  [Navy  Regulations,  19l3.  E-6191. 
C.  M.  0. 1,  1913,  8;  File  26287-1392,  Sec.  Navy,  Dec.  4,  1912.  See  also  File  26287-2841, 
Mar.  19, 1915. 

17.  Same— A  water  tender  was  tried  by  summary  court-martial  on  December  23,  1914. 

He  was  found  guilty  and  sentenced  "to  be  reduced  to  the  next  inferior  rating,  that 
of  fireman  first  class  "  and  to  lose  pay.  The  records  of  the  Bureau  of  Navigation  show 
that  the  accused  was  reenlisted  in  the  rating  of  oiler  October  28,  1908,  and  received  a 
permanent  appointment  as  water  tender  July  19, 1910.  having  been  advanced  to  that 
rating  from  the  rating  of  oiler.  In  view  of  the  provisions  of  Navy  Regulations,  1913, 
R-619(7),  this  man  should  have  been  reduced  to  the  rating  of  oiler  and  not  to  the 
rating  of  fireman  first  class.  The  department  remitted  that  portion  of  the  sentence 
that  related  to  reduction  in  rating.  File  26287-2841,  Mar.  19, 1915. 

18.  Inappropriate — The  sentence  of  "reduction  to  the  next  inferior  rating"  is  deemed 

inappropriate  to  such  offenses  as  "overstaying  liberty,"  "absence  without  permis- 
sion," "attempting  to  smuggle  liquor,"  "liquor  in  possession,"  etc.,  unless  committed 
by  a  petty  or  noncommissioned  officer;  and  even  then  it  is  appropriate  only  when. 
in  the  opinion  of  the  court,  the  commission  of  the  offense  and  the  conduct  record 
of  the  accused  indicate  that  he  can  not  be  relied  upon  properly  to  perform  all  the 
duties  of  the  rating  in  which  he  is  serving.  (R-619  (8).)  See  Op.  J.  A.  G.,  July  19, 
1916. 

19.  Incpmpetency — In  the  case  of  a  person  found  guilty  of  incompetency,  the  sentence  of 

disrating  is  mandatory,  and  such  sentence  is  the  only  authorized  punishment  therefor. 
(R.  618  (6).) 

20.  Invalidate— Failure  of  a  court  to  reduce  a  petty  or  noncommissioned  officer  when  con- 

finement is  also  adjudged  does  not  invalidate.    See  REDUCTION  IN  RATING,  9. 

21.  Liquor  in  possession.   See  REDUCTION  IN  RATING,  18. 

22.  Mandatory.    See  REDUCTION  IN  RATING,  19. 

23.  Noncommissioned  officers.    See  REDUCTION  IN  RATING,  32,  33. 

24.  Officers— Any  officer  who  absents  himself  from  his  command  without  leave,  may,  by 

the  sentence  of  a  court-martial,  be  reduced  to  the  rating  of  an  ordinary  seaman.  (A. 
G.N.  9.)  G.  O.37;May  17, 1864. 

25.  Same — An  acting  third  assistant  engineer  was  convicted  of  "Desertion"  and  sentenced 

to  be  "reduced  to  the  rating  of  a  fireman  first  class,  to  serve  for  the  term  of  two  years, 
and  to  forfeit  all  pay  now  due  him."  G.  O.  No.  39,  July  16, 1864. 

An  Acting  Master's  Mate  was  sentenced  "to  be  reduced  to  the  rate  of  ordinary 
seaman  for  fifteen  (15)  months,"  etc.  G.  0. 44,  Dec  7, 1864. 

26.  Same — The  sentence  ofdisrating  officers  is  provided  as  the  penalty  hi  cases  of  "Absence 

from  station  and  duty  without  leave,"  and  should  be  imposed  in  no  other  cases. 
G.  0. 61,  June  24, 1865. 


REDUCTION   IN   BATING.  517 

27.  Same — In  returning  the  case  of  a  warrant  officer  (boatswain)  for  a  revision  of  the  sen- 

tence the  attention  of  the  court  was  called  to  the  fact  that  it  might  adjudge  a  sentence 
involving  a  substantial  loss  of  pay,  but  if,  in  its  opinion,  such  punishment  were  net 
adequate,  attention  was  called  to  article  9  of  the  Articles  for  the  Government  of  the 
Navy,  which  provides  that,  "Any  officer  who  absents  himself  from  his  command 
without  leave  may,  by  the  sentence  of  a  court-martial,  be  reduced  to  the  rating  of 
an  ordinary  seaman." 

The  court  in  revision  decided  to  revoke  its  former  sentence  in  this  case  and  substi- 
tuted therefor  the  following  sentence: 

"The  court,  therefore,  sentences  him,  Boatswain ,  United  States 

Navy,  to  be  reduced  to  the  rating  of  ordinary  seaman." 

Inasmuch  as  the  sentence  adjudged  in  the  case  of  this  officer  provided  that  he  be 
reduced  to  an  ordinary  seaman,  which  deprives  him  of  his  position  as  a  warrant  officer 
in  the  United  States  Navy,  and  as  article  53  of  the  Articles  for  the  Government  of  the 
Navy  (sec.  1624,  Rev.  Stat.)  provides  that  no  sentence  extending  to  the  loss  of  life  or 
to  the  dismissal  of  a  commissioned  or  warrant  officer  shall  be  carried  into  execution 
until  confirmed  by  the  President,  it  was  deemed  advisable  as  a  matter  of  policy, 
although  not  specifically  required  by  the  statute,  to  submit  the  record  of  the  general 
court-martial  in  this  case  to  the  President  of  the  United  States,  who,  on  April  3, 1916, 
confirmed  the  sentence  of  the  court.  C.  M.  0. 11, 1916,  2. 

The  court  sentenced  a  boatswain  "to  be  reduced  to  the  rate  of  Mate  in  the  U.  8. 
Navy."  Having  adjourned, itreconvened  of  itself, upon  the  advice  of  the  judge  ad- 
vocate, to  reconsider  the  sentence,  revoked  its  former  sentence,  and  adjudged  one 
involving  dismissal.  G.  C.  M.  Rec.  9427  (1901). 

28.  Others  tiian  petty  and  noncommissioned  officers—  Prior  to  July  15,  1915,  if  the 

general  court-martial  sentence  of  an  enlisted  man,  who  was  not  a  petty  or  noncom- 
missioned officer,  involved  both  imprisonment  and  discharge,  it  has  been  held  by 
the  department  that  to  add  to  this  sentence  a  reduction  in  rating  caused  the  punish- 
ment thus  inflicted  to  exceed  the  limitation  of  punishment  as  prescribed  by  the 
President  of  the  United  States.  For  this  reason,  when  the  sentence  of  an  enlisted 
man,  not  a  petty  or  noncommissioned  officer,  involved  discharge,  the  court  could  not, 
in  addition,  without  exceeding  the  limitation  of  punishment,  reduce  the  man  in 
rating  for  the  same  offense.  This  amounted  to  a  holding  that  only  petty  or  noncom- 
missioned officers  should  be  reduced  in  rating  by  sentence  of  general  court-martial, 
except  in  cases  where  the  general  court-martial  adjudged  a  summary  court-martial 
sentence.  C.  M.  O.  21,  1902,  2;  29,  1902,  1;  52,  1902;  146,  1902,  2;  46,  1903,  1;  26,  1910, 
5;  20, 1913,  3;  34, 1913,  8.  But  on  July  15,  1915,  in  C.  N.  R.  No.  5,  the  following  was 
added  to  the  limitations  (R-900): 

"(7)  In  the  case  of  an  enlisted  man  reduction  to  any  inferior  rating  or  rank  in  the 
branch  to  which  he  belongs  may  be  added  to  any  of  the  following  limitations." 
See  also  REDUCTION  IN  RATING,  35. 

29.  Same — A  fireman  second  class  was  sentenced  to  confinement  at  hard  labor  with  cor- 

responding loss  of  pay,  reduction  in  rating  to  coal  passer,  and  dishonorable  discharge; 
the  department  remitted  a  part  of  the  confinement  and  loss  of  pay,  and  also  the  reduc- 
tion in  rating,  and  then  approved. 

The  department  stated  that  it  was  "at  least  doubtful  whether  a  court  is  authorized 
to  include  reduction  in  rating  in  its  sentence  except  in  the"  case  of  petty  and  non- 
commissioned officers. 

While  the  sentence  as  adjudged  did  not  apparently  exceed  the  limitations, "the 
punishment  of  reduction  in  rating  is  so  different  in  character  from  that  of  confinement 
that  it  is  difficult  to  compare  it  with  the  latter,  and  thus  to  determine  whether  or  not 
the  limitation  of  punishment  authorized  has  been  exceeded."  C.  M.  O.  21,  1902,  2. 
But  see  R-900  (7)  and  REDUCTION  IN  RATING,  28. 

30.  Pay — "The  department  considers  that  the  intent  of  article  30,  Articles  for  the  Govern- 

ment of  the  Navy,  which  limits  the  loss  of  pay  that  a  summary  court-martial  may 
adjudge  to  the  loss  of  three  months'  pay,  is  to  limit  the  loss  to  three  months'  pay 
based  on  the  pay  of  the  accused  in  the  rating  to  which  he  has  been  reduced.  In  cases 
where  the  loss  of  pay  was  based  on  the  higher  rating  the  department  reduced  the  loss 
of  pay  to  conform  with  the  above.  C.  M.  O.  94,  1903,  1;  1,  1913,  7;  File  26287-1372:  1. 
.File  26287-2746,  Sec.  Navy,  Apr.  29.  1915."  C.  M.  O.  16,  1915,  4;  File  26254-1834:  1, 
Sec.  Navy,  Sept.  15, 1915.  See  also  C.  M.  O.  97, 1897.  But  see  R-900  (7);  REDUCTION 
IN  RATING,  28. 


518  EEDUCTION   IN   BATING. 

31.  Same— "Disrating"  alone  is  not,  within  the  meaning  of  A.  G.  N.  32,  to  be  regarded  as 

involving  a  loss  of  pay,  but  as  a  reduction  of  rating  only.    See  PAY,  84. 

32.  Petty  and  noncommissioned  officers — In  all  cases  in  which  the  sentence  imposed 

on  a  petty  officer  involves  confinement  it  should  include  reduction  to  one  of  the 
ratings  below  petty  officer  in  the  branch  to  which  he  belongs,  and, in  the  case  of  a 
noncommissioned  officer  of  the  Marine  Corps,  to  private.  (R-816  (3).)  C.  M.  O.  48. 
1895;  60,  1895;  139,  1897,  2;  154,  1900;  21,  1902,  2;  42,  1909,  6;  49,  1910.  14;  15,  1910,  7; 
28,  1910,  5;  1,  1912,  4;  23,  1912,  4;  6,  1913,  3;  25,  1914,  5;  49,  1914,  6;  file  26251-10529. 
Sec.  Navy,  May  15,  1915;  G.  C.  M.  Rec.,  28481,  28489,  28582. 

33.  Same — Petty  officer  properly  sentenced  by  general  court-martial  to  confinement  and 

reduction  m  rating.  Convening  authority  (fleet)  remitted  reduction  in  rating  but 
allowed  confinement  to  remain  as  part  of  the  sentence.  Department  disapproved  of 
such  procedure.  C.  M.  O.  92, 1897. 

34.  President — Confirmed  sentence  of  a  warrant  officer  involving  reduction  in  rating  to 

ordinary  seaman.    See  REDUCTION  IN  RATING,  27. 

35.  Prior  to  July  15, 1915— General  courts-martial  not  to  ad  judge  unless  (o)  accused  is 

petty  or  noncommissioned  officer  and  sentence  involved  confinement;  or  (ft)discharge 
is  not  adjudged,  although  included  in  limitation  of  punishment;  or  (c)  sentence 
adjudged  is  one  authorised  for  summary  courts-martial.  But  on  July  15,  1915,  in 
C.  N.  R.  No.  5,  the  limitations  were  amended  so  that  reduction  in  rating  or  rank 
might  be  adjudged  in  the  case  of  any  rated  man.  See  R-900  quoted  in  REDUCTION  IN 
RATING,  28. 

36.  Purpose  of  reducing  petty  and  noncommissioned  officers — "The  purpose  of 

the  direction"  contained  in  Navy  Regulations,  1900,  article  1911  (3)  [Navy  Regula- 
tions, 1913,  R-816  (3)]  "being  to  prevent  the  confinement  in  naval  prisons  of  men 
wearing  rating  badges,  chevrons,  or  other  marks  indicating  their  status  as  such  petty 
or  noncommissioned  officers,  in  order  that  the  same  may  not  be  degraded  in  the  eyes 
of  the  other  men  with  whom  they  come  in  contact."  C.  M.  O.  21,  1902,  2. 

37.  Same — The  department  is  of  the  opinion  that  it  is  prejudicial  to  the  best  interests  of 

the  naval  service  for  petty  and  noncommissioned  officers  to  be  confined  as  prisoners 
in  a  naval  prison  and  that  particularly  in  view  of  the  fact  that  imprisonment  is  accom- 
panied by  loss  of  pay,  except  certain  allowances,  wherefore  reduction  in  rating  would 
not,  in  fact,  in  cases  which  included  dishonorable  discharge,  increase  the  punishment 
awarded.  The  sentence  should  include  reduction  to  the  rating  of  landsman  or 
private.  C.  M.  O.  48,  1895.  See  also  C.  M.  O.  60, 1895.  REDUCTION  IN  RATING,  28, 
35. 

38.  Rating  from  which  last  advanced.    See  REDUCTION  IN  RATING,  14-17,  42. 

39.  Seaman  gunners.    See  SEAMAN  GUNNERS,  3,  4. 

40.  Summary  courts-martial.    See  REDUCTION  IN  RATING,  17,  18,  19,  30,  35,  36,  37,  42. 

41.  Surplusage.    See  REDUCTION  IN  RATING,  16. 

42.  Tables  for  disrating— It  is  noted  that  summary  courts-martial  in  sentencing  men  to 

reduction  in  rating  who  were  promoted  to  their  present  ratings  from  some  inferior 
ratings  other  than  ratings  indicated  by  the  classification  table  following  Navy  Regu- 
lations, 1913,  R-619  (7),  frequently  fail  to  state  this  fact  hi  the  record. 

In  order  to  secure  uniformity  in  the  reduction  in  rating  of  enlisted  persons  by  sen- 
tence of  summary  courts-martial,  the  classification  following  Navy  Regulations,  1913, 
R-619  (7),  arranged  to  show  in  each  case  their  "next  inferior  rating,"  shall  be  followed, 
unless  the  man's  current  enlistment  record  shows  that  he  was  promoted  to  his  present 
rate  from  some  inferior  rating  other  than  the  one  indicated  oy  the  table,  in  which 
case  his  reduction  shall  be  to  the  inferior  rating  from  which  he  was  last  advanced, 
and  it  shall  be  so  stated  in  the  record  of  the  court  (Navy  Regulations,  1913,  R-619  (7); 
Forms  of  Procedure,  1910,  p.  162.)  C.  M.  O.  29,  1914,  4. 

43.  Uniformity  In  reduction.    See  REDUCTION  IN  RATING,  42. 

44.  Warrant  officers— Reducing  to  rating  of  ordinary  seaman  by  sentence  of  court- 

martial.    See  REDUCTION  IN  RATING,  27. 

REENLISTMENTS. 

1.  Acting  warrant  officers.    See  ACTING  WARRANT  OFFICERS,  4. 

2.  Deserters— Prior  to  act  of  August  22, 1912  (37  Stat.,  356).    See  DESERTERS,  13;  DESER- 

TION, 23-27,  117. 

3.  Same— Subsequent  to  act  of  August  22,  1912  (37  Stat.,  356).    See  DESERTERS,  14; 

DESERTION,  28,  29;  114. 

4.  Same — Deserter  from  Marine  Corps  who  served  subsequent  excellent  enlistment.    See 

DESERTION,  114. 


KEENLISTMENTS.  519 

5.  Discharge  for  disability  or  other  reason— Does  not  bar  reenlistment  if  authorized 

C.  M.  0. 12, 1911,  4.    See  also  RECRUITING,  17. 

6.  Minor— Pay.    See  PAY,  86. 

7.  Retired  enlisted  men.    See  RETIEED  ENLISTED  MEN,  11. 

REEXAMINATION. 

1.  Recommendation— Of  examining  board  of  no  effect.    See  NAVAL  EXAMINING  BOARDS, 
13. 

REFRESHING  MEMORY  OF  WITNESSES.    See  COUNSEL,  56;   JUDGE  ADVOCATE, 
129;  WITNESSES,  95-99. 

REFUSING  TO  OBEY  THE  LAWFUL,  ORDER  OF  HIS  SUPERIOR  OFFICER. 

1.  Drunkenness — As  a  defense  to.    See  DRUNKENNESS,  36,  52. 

2.  Enlisted  men— Charged  with.    C.  M.  O.  92, 1905. 3;  37, 1909,  3. 

3.  Malingering— The  charge  of  "Refusing  to  obey  the  lawful  order  of  his  superior  officer" 

is  not  of  the  same  character  or  nature  as  the  offense  "Malingering,"  and  therefore  the 
latter  is  not  a  lesser  degree  of  the  former  offense.  See  GUILTY  IN  A  LESS  DEGREE 
THAN  CHARGED,  30.  40. 

4.  Officers— Charged  with.    C.  M.  O.  35,  1905;  G.  C.  M.  Rec.,  14462. 

5.  Proof  of — The  accused  was  to  be  confined  in  the  fireroom  of  a  torpedo  boat  pending 

further  action  for  a  misdemeanor,  that  being  the  usual  place  for  such  confinement  in 
the  torpedo  boat  flotilla,  and  owing  to  the  construction  of  the  boats  it  was  necessary 
for  him  to  go  into  it  without  being  forced  to  dp  so. 

The  evidence  for  the  prosecution  fully  sustained  all  the  allegations  of  the  specifica- 
tion, and  no  testimony  was  adduced  on  the  part  of  the  defense  to  offset  this  proof. 

The  defense,  however,  by  means  of  expert  and  other  testimony  endeavored  to  show 
that  the  accused  was  so  much  under  the  influence  of  liquor,  having  returned  from 
liberty  a  few  hours  before  the  offense  was  committed,  as  to  oe  incapable  of  understand- 
ing an  order  or  having  sufficient  use  of  his  mental  faculties  to  intelligently  obey  or 
willfully  disobey  it. 

It  appears  that  when  the  accused  first  refused  to  obey  the  order  given  him  he  said 
he  would  go  down  below  but  would  not  remain  there  and  added  that  the  fireroom 
was  not  a  fit  place  to  confine  a  man.  When  the  serious  nature  of  his  offense  was 
explained  to  him  he  said  he  knew  what  he  was  doing  and  repeated  his  former  state- 
ments and  stated  that  he  understood  what  he  was  being  told  and  persisted  in  his 
refusal  to  obey  the  order,  and  he  also  stated  that  if  sufficient  men  were  brought  he 
could  be  forced  into  the  fireroom. 

From  the  foregoing  it  would  appear  that  while  the  accused  was  so  much  under 
the  influence  of  intoxicants  as  to  be  unfit  for  duty— and  one  who  is  under  the  influence 
of  liquor  in  any  degree,  however  slight  it  may  be,  is  unfit  to  be  intrusted  with  the 
important  duties  incident  to  the  naval  service— he  was  still  able  to  reason  in  an  intelli- 
gent manner  and  was  accountable  for  his  actions.  It  is  a  well-known  principle  of 
law  that  a  man  who  voluntarily  puts  himself  in  a  condition  to  have  no  control  of  his 
actions  must  be  held  to  intend  the  consequences. 

Held:  That  a  finding  of  guilty  would  have  been  justified  in  this  case,  and  the  court 
might  then  have  recommended  the  accused  to  the  clemency  of  the  department.  C.  M. 
O.  92,  1905,  3. 

6.  Typhoid — Enlisted  man  tried  by  general  court-martial  for  refusing  to  obey  a  lawful 

order  to  submit  to  an  antityphoid  vaccination.    G.  C.  M.  Rec.  24893. 

7.  Warrant  officer— Charged  with.    C.  M.  O.  33, 1905. 

REGIMENTS. 

1.  Deck  courts— Convening  of  by  regimental  commanders.    See  DECK  COURTS,  10,  14; 

SUMMARY  COURTS-MARTIAL,  22. 

2.  Summary  courts-martial— Convening  of  by  regimental  commanders.    See  SUM- 

MARY COURTS-MARTIAL,  22. 

REGULAR  NAVY. 

1.  Naval  Militia— Status  In  relation  to  the  regular  Navy  while  on  board  naval  vessels  or 
on  vessels  loaned  to  States.   See  NAVAL  MILITIA,  35-41. 


520  REGULATIONS,    NAVY. 

REGULATIONS,  NAVY. 

1.  Accounting  officers— "The  accounting  officers  in  the  performance  of  their  duties  are 
bound  by  rules  prescribed  by  Congress,  the  same  as  are  all  other  officers  of  the  Govern- 
ment, and  it  has  been  decided  that  they  are  bound  by  Executive  regulations.  (U.  S. 
v.  Freeman,  3  How.,  576;  see  also  16  Op.  Atty.  Gen.,  619)."  File  26254-1451:11,  Apr. 
12, 1915,  p.  13. 

2.  Alterations  In.    See  REGULATIONS,  NAVY,  16, 17. 

3.  Annulling  by  Congress— Congress  has  not  hesitated  to  annul  Navy  Regulations  of 

which  it  did  not  approve  as,  for  example,  Executive  order  of  November  12,  1908, 
limiting  the  duty  of  the  Marine  Corps  to  shore  stations.  File  27109.  See  also  Act 
Mar.  3,  1909  (35  Stat.,  773);  27  Op.  Atty.  Gen..  259;  MARINE  CORPS,  84. 

4.  Same — "A  regulation  which  has  been  in  force  for  many  years  will  be  sustained  unless 

Congress  has  annulled  it  by  positive  enactment."  (16  Op.  Atty.  Gen.,  621.)  File 
26254-1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  8.  See  REGULATIONS,  NAVY,  80,  for  annul- 
ment and  revocation  of  regulations  by  the  Secretary  of  the  Navy. 

5.  Approval  of  regulations  by  Congress— "It  is  well  settled  that  Army  Regulations 

when  directly  approved  by  Congress  have  the  absolute  force  of  law  equally  with  other 
legislative  acts.  *  *  *  On  the  other  hand,  it  is  just  as  well  settled  that  regulations 
not  so  approved  have  the  force  of  law  only  when  founded  upon  the  President's  con- 
stitutional powers  as  Commander  in  Chief  of  the  Army,  or  are  'consistent  with  and 
supplementary  to  the  statutes  which  have  been  enacted  by  Congress  in  reference  to 
the  Army.'"  (Smith  Case,  23 Ct.  Cls.,  452.)  File  26254-1451:11,  Apr.  12,  1915,  p.  4. 

6.  Same— Regulations  which  are  specifically  approved  by  Congress  have  the  force  and 

effect  of  law,  as  much  so  as  though  they  formed  a  part  of  a  statute  covering  the  subject. 
File  3980-452:2,  J.  A.  G.,  Dec.  8,  1909,  p.  4. 

7.  Same— Inaction  by  Congress  is  equivalent  to  legislative  sanction  of  regulations  and 

should  be  so  regarded  in  testing  the  validity  of  a  regulation  or  construing  a  statute 
on  the  same  subject.  See  File  5252-36,  May  5,  1910,  pp.  2,  9. 

8.  Same—"  Where  a  regulation  has  been  in  force  and  effect  for  many  years,  the  ratifi- 

cation of  Congress  will  be  implied."    File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  8. 

9.  Same^-"  When  Congress  permits  regulations  to  be  formulated  and  published  and  car- 

ried intoeffect  year  after  year,  the  legislative  ratification  must  be  implied ."  (Maddux 
v.  U.  S.,  20Ct.  Cls.,  198.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  5. 

10.  Attorney  General— Considered  the  question  of  the  validity  of  a  Navy  regulation 

"unusually  important "  to  such  an  extent  that  he  felt  justified  in  rendering  an  opinion, 
although  the  question  pertained  to  matters  under  the  jurisdiction  of  the  Comptroller 
of  the  Treasury.  (25  Op.  Atty.  Gen.,  271.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915, 
p.  21.  See  also  ATTORNEY  GENERAL,  13. 

Jurisdiction  of  the  Attorney  General  to  interpret  regulations  and   to  consider 
legality  of.    See  ATTORNEY  GENERAL,  15. 

11.  Bulletin  In  court-martial  orders— Digests  in  bulletin  have  not  force  of  regulations. 

See  BULLETIN  IN  COURT-MARTIAL  ORDERS,  3. 

12.  "Catcli-all"  clause.    See  "CATCH-ALL"  CLAUSE,  1. 

13.  Classes  of  Army  Regulations — 1.  "Those  which  have  received  the  sanction  of  Con- 

gress "  With  reference  to  such  regulations  the  author  says:  "These  can  not  be 
altered  nor  can  exceptions  to  them  to  made  by  the  Executive  authority,  unless  the 
regulations  themselves  provide  for  it.  In  reality,  the  approval  of  Congress  makes 
them  legislative  regulations,  and  they  might  therefore  be  more  strictly  classified  with 
other  statutory  regulations  with  reference  to  subjects  of  military  administration." 
2.  "Those  that  are  made  pursuant  to,  or  in  execution  of,  a  statute.  *  *  *  These, 
if  it  be  not  prohibited  by  the  statute,  may  be  modified  by  the  Executive  authority, 
but  until  this  is  done  they  are  binding  as  well  on  the  authority  that  made  them  as 
on  others."  3.  "Those  emanating  from,  and  depending  on,  the  constitutional 
authority  of  the  President  as  Commander  in  Chief  of  the  Army  and  as  Executive, 
and  not  made  in  supplement  to  particular  statutes.  These  constitute  the  greater, 
part  of  the  Army  Regulations  [and  Navy  Regulations].  They  are  not  only  modified 
at  will  by  the  President,  but  exceptions  from  particular  regulations  are  given  in 
exceptional  cases,  the  exercise  of  this  power  with  reference  to  them  being  necessary. 
'The  authority  which  makes  them  [regulations')  can  modify  or  suspend  them  as  to 
any  case,  or  class  of  cases,  or  generafly . ' "  (Lieber  on  Regulations,  War  Dept.  Doc., 
1898,  No.  63.) 


EEGULATIONS,  NAVY.  521 

14.  Classes  of  regulations— There  are  two  general  classes  of  regulations  issued  by  the 

Secretary  of  the  Navy,  namely:  (1)  Those  which  are  expressly  approved  by  the 
President  in  accordance  with  an  order  issued  by  Secretary  Moody,  June  22.  1904, 
known  as  Navy  Regulations,  and  are  specifically  stated  to  be  issued  by  authority 
of  section  1547,  R .  S . ;  and  (2)  those  which  are  not  expressly  approved  by  the  President, 
such  as  Naval  Instructions,  Forms  of  Procedure,  Uniform  Regulations.  Signal  Books 
and  Drill  Books,  General  Orders,  Court-Martial  Orders,  Manual  for  Recruiting 
Officers,  Manual  Governing  the  Transportation  of  Enlisted  Men,  Manual  for  the 
Medical  Department,  Rules  for  Target  Practice  and  Engineering  Competitions. 
These  publications  have  full  force  and  effect  as  regulations  for  the  guidance  of  all  per- 
sons in  the  Naval  Establishment  (Navy  Regulations,  1913,  (R-901  (3),)  and  have  been 
regarded  as  authorized  by  section  161,  R.  S.  (File  3985-942),  which  has  never  been 
held  to  require  the  President's  approval.  C.  M.  O.  12.  1915, 11. 

15.  Same— Regulations  of  the  Navy  consist  of  four  classes:  (1)  General  orders  promulgated 

by  the  President  under  his  constitutional  prerogative  as  Commander  m  Chief;  (2) 
departmental  regulations  prescribed  by  the  Secretary  of  the  Navy  under  section 
161,  R.  S.;  regulations  not  approved  by  Congress  but  made  by  the  President  in  the 
exercise  of  legislative  authority  conferred  by  Congress  under  R.  S.,  1547;  and  (4)  regu- 
lations expressly  approved  by  Congress.  (In  re  Smith,  23  Ct.  Cls.,  452.)  File  3980- 
1044,  Mar.  19,  1915. 

10.  Changes  in—Necessity  of  approval  of  the  President— An  opinion  rendered  by  Mr. 
*  *  *  as  Attorney  General,  November  8, 1904 (25  Op.  Atty.  Gen.  275, 276),  has  been 
regarded  as  requiring  that  all  regulations  and  alterations  therein  issued  under  section 
1547,  R.  S.,  must  be  expressly  approved  by  the  President.  This  opinion  was  subse- 
quently disregarded  by  the  Assistant  Attorney  General  who  represented  the  United 
States  in  the  Court  of  Claims  in  the  case  of  Adams  v.  U.  S.  (42  Ct.  Cls.  191),  and  in  the 
same  case  the  court  decided  that  "orders,  regulations,  and  instructions  issued  by  the 
Secretary  of  the  Navy  "  under  section  1547,  R.  S.,  "as  well  as  alterations  thereof,"  do 
not  require  personal  approval  of  the  President,  but  "are  presumed  to  have  been 
issued  'with  the  approval  of  the  President,'  though  they  do  not  bear  his  signature." 
In  support  of  this  decision  the  Court  of  Claims  quoted  previous  decisions  rendered 
by  it  and  by  the  Supreme  Court  holding  that  the  President  acts  through  the  heads  of 
the  executive  departments  and  can  not  be  required  to  perform  ministerial  acts  in 
person. 

This  decision  of  the  Court  of  Claims,  which  is  the  latest  authoritative  expression  on 
the  subject,  plainly  modifies  the  opinion  of  Attorney  General  *  *  *  (25  Op.  Atty. 
Gen.  275,  276)  with  which  it  is  in  conflict,  and  which  had  already  been  practically 
repudiated  by  authorized  representatives  of  the  Department  of  Justice  while  acting 
as  counsel  for  the  United  States  in  the  Court  of  Claims. 

The  department  accordingly  decides  that  Navy  Regulations  and  alterations  therein 
may  be  issued  by  the  Secretary  of  the  Navy  by  authority  of  section  1547,  R.  S.,  with- 
out express  approval  of  the  President  being  required,  and  such  was  the  uniform 
practice  prior  to  Secretary  *  *  *'s  order  of  1904,  above  mentioned.  Neverthe- 
less, the  practice  of  submitting  to  the  President  for  approval, regulations  and  changes 
therein  issued  pursuant  to  section  1547,  R.  S.,  will  be  continued  as  a  general  policy 
subject  to  modification  in  special  cases  if  deemed  advisable.  File  3980-1044:1,  Sec. 
Navy,  Mar.  19, 1915.  See  also  File  3980-1044,  J.  A.  G.,  Jan.  11, 1915;  5599-04,  J.  A.  G.f 
June  22,  1904;  3980-200,  Sec.  Navy,  June  22,  1904;  5460-60,  J.  A.  G.,  Jan.  22,  1913; 
C.  M.  O.  12. 1915,  11-12. 

17.  Same — "If  the  question  were  a  new  one  my  opinion  would  be  that  section  1547,  R.  S., 
contemplated  and  required  express  approval  by  the  President  of  all  regulations  and 
alterations  therein  issued  by  the  Secretary  of  the  Navy  under  said  section,  and  that 
decisions  of  the  courts  hold  ing  that  the  President  is  not  required  to  perform  ministerial 
acts  in  person,  do  not  apply  to  regulations  issued  under  said  section  of  the  Revised 
Statutes  which  specifically  makes  the  President's  approval  essential  in  order  to  give 
validity  to  the  acts  of  the  Secretary  of  the  Navy  performed  thereunder,  thus  dis- 
tinguishing the  case  from  section  161,  R.  S.,  and  other  laws  in  which  heads  of  depart- 
ments are  authorized  to  issue  regulations  without  any  mention  being  made  of  the 
President's  approval.  However,  in  the  face  of  the  Court  of  Claim's  decision  above 
quoted  [Adams  v.  U.  S.,  42Ct.  Cls.,  191]  I  am  constrained  to  hold  that  express  approval 
of  the  President  is  not  required  by  section  1547.  R.  S."  File  3980-1044,  J.  A.  G.,  Jan. 
11,  1915. 


522  REGULATIONS,  NAVY. 

18.  Same— It  has  been  held  that  alterations  made  by  authority  of  Congress  in  regulations 

which  it  had  already  approved  "undoubtedly"  likewise  have  "the  sanction  of  Con- 
gress" so  far  at  least  as  they  are  not  "in  conflict  with  the  provisions  of  any  later 
statute."  (14  Op.  Atty.  Gen.  172.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  3. 

19.  Same — "Alterations  made  pursuant  to  law  in  regulations  which  have  been  approved 

by  Congress  have  the  same  force  and  effect  as  the  original  regulations  if  not  in  conflict 
with  any  later  statute."  File  26254-1451:11.  Apr.  12, 1915,  p.  8. 

20.  Congress— Annulling.    See  REGULATIONS,  NAVY,  3,  4. 

Approval  of  regulations  by  Congress.    See  REGULATIONS,  NAVY,  5-9, 18, 19. 

21.  Construction  and  interpretation  of  regulations.    See  REGULATIONS,  NAVY.  87, 88. 

22.  Contravene  existing  laws,  must  not— If  the  regulations  are  in  conflict  with  the 

existing  law,  the  law  will  govern,  and  the  regulations  will  accordingly  be  considered 
as  inoperative.  File  4579-8,  Sec.  Navy.  June  19,  1906,  quoted  in  File  26251-2993, 
J.  A.  G.,  Mar.  10, 1910,  pp.  15, 16.  See  also  REGULATIONS,  NAVY,  42. 

23.  Courts  of  inquiry— Construction  and  interpretation  of  Navy  Regulations  concerning. 

See  COURTS  OF  INQUIRY,  45. 

24.  Courts-martial— Should  uphold  regulations.    See  CRITICISM  OF  COURTS-MARTIAL,  53. 

25.  Court-martial  orders— Have  full  force  and  effect  as.    See  COURT-MARTIAL  ORDERS, 

33,  39.    See  also  BULLETIN  IN  COURT-MARTIAL  ORDERS,  3. 

26.  Customs — There  can  be  no  such  thing  as  a  legal  custom  todisregard  a  valid  regulation. 

C.  M.  O.  43,  1906,  3.    See  also  CUSTOMS,  3,  9. 

27.  Same— Merged  in  written  regulations.    See  CUSTOMS  OF  THE  SERVICE,  6. 

28.  Definition.    See  REGULATIONS,  NAVY,  64,  94. 

29.  Directory  regulations.   C.  M.  0. 18, 1897,  3;  27, 1898,  1;  50, 1900;  51, 1914,  2;  6, 1915,  6; 

41, 1915, 10;  49, 1915, 10, 12, 13-14.  See  also  CONVENING  AUTHORITY,  31;  MANDATORY 
REGULATIONS  AND  LAWS. 

30.  Doubt  that  regulation  is  authorized  by  law — "A  regulation  which  has  been  in 

force  for  many  years  will  be  sustained  by  the  courts  even  though  'it  may  well  be 
doubted'  that  such  regulation  is  authorized  by  law."  File  20254-1451:11,  J.  A.  G., 
Apr.  12,  1915,  p.  8. 

31.  Equitable— Regulations  should  be  equitable. 

32.  Force  of  law.    See  REGULATIONS,  NAVY,  38-47. 

33.  Implied  approval  of  Congress.    See  REGULATIONS,  NAVY,  7-9. 

34.  Interpretation  and  construction  of  regulations.    See  REGULATIONS,  NAVY,  87, 88. 

35.  Same.    See  REGULATIONS,  NAVY,  73, 87. 

36.  Same — By  Judge  Advocate  General.    See  COAST  GUARD,  1;  JUDGE  ADVOCATE  GEN- 

ERAL, 14,  17,  21,  33;  QUESTIONS  OF  LAW,  2,  6,  8,  11;  RECORDS  OF  PROCEEDINGS,  59. 

37.  Judicial  notice — Of  regulations.    See  JUDICIAL  NOTICE,  7, 

38.  Law — It  is  a  well-recognized  fact,  supported  by  many  authorities,  that  regulations 

have  the  force  of  law  only  when  founded  on  the  President's  constitutional  powers 
as  Commander  in  Chief,  or  "are  consistent  with  and  supplementary  to  the  statutes 
which  have  been  enacted  by  Congress."  (Symond  Case,  120  U.  S.  46;  Reed  Case, 
100  U.  S.  22;  Smith  v.  Whitney,  116  U.  S.  180;  Kurtz  v.  Moftltt,  115  U.  S.  503;  U.  S. 
v.  Eliason,  16  Pet.  291.)  File  3980-452:2,  J.  A.  G.,  Dec.  8,  1909,  p.  4. 

39.  Same — "The  authority  of  the  Secretary  to  issue  orders,  regulations,  and  instructions, 

with  the  approval  of  the  President,  in  reference  to  matters  connected  with  the  naval 
establishment,  is  subject  to  the  condition,  necessarily  implied,  that  they  must  be 
consistent  with  the  statutes  which  have  been  enacted  by  Congress  in  reference  to 
the  Navy.  He  may,  with  the  approval  of  the  President,  establish  regulations  in 
execution  of  or  supplementary  to,  but  not  in  conflict  with,  the  statutes  denning  his 
powers  or  conferring  rights  upon  others."  (Symond  Case,  120  U.  S.  46.)  File  3980- 
452:2,  J.  A.  G.,  Dec.  8,  1909,  p.  4. 

40.  Same — Regulations  made  in  conformity  with  laws  are  of  binding  force.    File  3980- 

452:2,  J.  A.  G.,  Dec.  8,  1909,  p.  9. 

41.  Same— Courts-martial  are  to  be  governed  by  the  rules  which  Congress  has  prescribed, 

and  also  by  such  regulations  as  may  be  made  in  pursuance  thereof,  such  regulations 
having  the  force  of  law.  File  26504-115,  J.  A.  G.,  Jan.  24,  1911,  p.  2. 

42.  Same— It  is  well  recognized  that  regulations  are  valid  only  when  they  do  not  conflict 

with  some  provision  of  law;  when  they  "are  consistent  with  and  supplementary  to 
the  statutes  which  have  been  enacted  by  Congress."  (Symond  Case,  120  U.  S.  46; 
Reed  Case,  100  U.  S.  22;  Smith  v.  Whitney,  116  U.  8.  180;  Kurtz  v.  Moffltt,115  U.S. 
503;  U.  S.  v.  Eliason,  16  Pet.  291.)  File  5362-35,  J.  A.  G.,  June  29,  1911,  pp.  7-8. 


REGULATIONS,   NAVY.  523 

43.  Same — "Regulations  expressly  approved  by  Congress  have  the  same  force  and  effect 

as  statute  law."    File  26254-1451:11,  Apr.  12,  1915,  p.  8. 

44.  Same— "Regulations  not  approved  by  Congress  have  the  force  of  law  when  not  in 

conflict  with  any  statute."    File  26254-1451:11,  Apr.  12,  1915,  p.  8. 

45.  Same— Regulations  issued  by  the  head  of  a  department  have  the  force  and  effect  of 

law  and  are  as  binding  as  if  incorporated  in  the  statute  law  of  the  United  States. 

46.  Same — The  Navy  Regulations  have  the  force  and  effect  of  positive  law.    (23  Op. 

Atty.  Gen.  27.) 

47.  Same — The  opinion  of  the  Attorney  General,  that  when  Congress  expressly  ratines 

and  adopts  general  orders  issued  by  the  Secretary  of  the  Navy  such  orders  were  incor- 
porated into  statute  law,  would  apparently  be  applicable  to  any  regulation  or  order 
which  had  been  specifically  adopted  by  Congress,  either  expressly  or  by  necessary 
implication,  as,  for  example,  executive  orders  fixing  the  pay  of  enlisted  men  in  the 
Navy,  which  were  adopted  by  Congress  in  the  act  of  May  13,  1908  (35  Stat.  128). 
See  File  26509-106. 

48.  Legality  of— "The  legality  of  a  regulation  must  be  presumed  when    *    *    *    it  has 

been  in  effect  for  nearly  fifty  years,  and  its  validity  was  doubtless  inquired  into  and 
determined  prior  to  its  adoption."  File  7657-167,  J.  A.  G.,  Jan.  17,  1913. 

49.  Legislate— Regulations  should  not  legislate.    See  File  28573-46:2-2. 

50.  Long  acquiescence — "  Long  acquiescence  in  an  executive  regulation  is  of  itself  evi- 

dence of  its  validity,  the  same  as  is  long  acquiescence  in  a  statutory  enactment,  under 
the  rule  announced  by  the  Supreme  Court  for  determining  the  validity  of  executive 
regulations."  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  9.  See  also  REGULATIONS, 
NAVY,  88. 

51.  Same— The  Court  of  Claims  held  that  whether  certain  provisions  of  the  Treasury 

Regulations  were  authorized  by  law  "may  well  be  doubted,"  but  nevertheless  "hav- 
ing been  in  force  for  a  number  of  years,  and  in  operation  in  every  port  of  the  United 
States  except  *  *  *  ,  and  having  received  the  tacit,  if  not  express,  approval  of 
Congress,  this  court  does  not  feel  at  liberty  to  disregard  them  and  hold  that  they  are 
not  authorized  by  law.  *  *  *  Whether  the  regulations  have  the  force  of  law, 
whether  they  make  the  law  of  the  case  and  fix  the  claimant's  legal  right,  as  was  before 
said,  may  well  be  questioned;  but  this  court,  for  the  reasons  before  given,  does  not 
feel  at  liberty  to  disregard  them.  (Carlinger  v.  U.  S.,  30  Ct.  Cls.  477;seeafeo22Op. 
Atty.  Gen.  183;  U.  S.  v.  Ala.  R.  R.  Co.,  142  U.  S.  621.)  "  File  26254-1451:11,  J.  A.  G., 
Apr.  12,  1915,  p.  5. 

52.  Loose  leaf— Criticism  of.    See  File  3980-1228,  J.  A.  G.,  Apr.  26, 1916. 

53.  Mandatory— C.  M.  0. 6, 1915, 6;  41, 1915, 10;  49, 1915, 10, 12, 13-14.    Seealso  MANDATORY 

REGULATIONS  AND  LAWS. 

54.  Navy  Regulations,  1841— Article  580  quoted.    See  File  26254-1451:11,  J.  A.  G.,  Apr. 

12,  1915,  p.  1.    Seealso  File  26510-225:1,  J.  A.  G.,  June  10,  1911. 

55.  Same— Approved  by  act  of  Congress  July  14,  1862  (12  Stat.,  565).    File  26254-1451:11, 

J.  A.  G.,  Apr.  12,  1915,  p.  1. 

56.  Navy  Regulations,  1865— Article  894  quoted.    File  26254-1451:11,  Apr.  12,  1915,  p.  2. 

57.  Navy  Regulations,  1869— Article  1343  cited.    File  26254-1451:11,  J.  A.  G.,  Apr.  12, 

1915,  p.  2. 

58.  Navy  Regulations,  187O— Article  1218  quoted.    File  26254-1451:11,  J.  A.  G.,  Apr.  12, 

1915,  p.  2. 

59.  Same — Was  expressly  approved  by  Congress  in  the  Revised  Statutes  approved  June 

30,  1874,  section  1547.    File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  2. 

60.  Navy  Regulations  of  1876 — "As  stated  in  the  Attorney  General's  opinion  of  October 

27,  1909  (3980-530).  the  Navy  Regulations  of  1876  received  the  express  sanction  of 
Congress  in  theenactment  of  "section  1547,  R.  S."  File  7657-167,  J.  A.  G.,  Jan.  17, 1913. 

61.  Navy  Regulations  Issued  since  Revised  Statutes — Seven  editions  of  theNavy 

Regulations  have  been  issued  since  the  approval  of  the  Revised  Statutes,  1876,  1893, 
1896,  1900,  1905,  1909,  1913.  me  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  3. 

62.  Offenses — In  violation  of  a  regulation.    See  CHARGES  AND  SPECIFICATIONS,  48, 50, 94. 

63.  Officers — Are  presumed  to  know  the  Navy  Regulations.    See  OFFICERS,  79,  80. 

"  All  officers  of  the  Navy  are  bound  by  the  regulations  prescribed  for  their  guidance 
by  the  Secretary  of  the  Navy  with  the  express  approval  of  the  President."  File 
26254-1451:1,  Sec.  Navy,  Jan.  8.  1915,  p.  5. 

An  officer's  repeated  violations  of  the  Navy  Regulations  stamps  him  as  untrust- 
worthy and  not  a  proper  person  to  maintain  discipline  and  exercise  command  over 
others.  See  OFFICERS,  81. 


524  REGULATIONS,   NAVY. 

04.  Order— A  regulation  is  an  order  in  cases  in  which  it  applies,  as  much  so  as  a  special 
command  reiterated  on  each  particular  occasion.  See  File  20264-1451:11,  J.  A.  G., 
Apr.  12, 1915. 

65.  Pay — Pay  can  not  lawfully  be  taken  away  by  executive  officers,  but  requires  the  clearest 

indication  of  the  legislative  intent,  and  should  not  be  done  lor  administrative  reasons 
merely  through  the  medium  of  questionable  implications  in  order  to  adopt  a  policy 
which  may  appear  to  be  desirable  but  which  is  not  provided  for  by  law.  F  ile  5362-35, 
J.  A.  G.,  June  29, 1911,  p.  9. 

66.  Same — The  reduction  in  or  deprivation  of  the  pay  of  an  officer  is  beyond  the  scope  of  a 

regulation,  unless  there  is  some  plain  statutory  authority  therefor.  File  5362-35, 
J.  A.  G.,  June  29,  1911,  p.  8. 

67.  Pay  officers— A  Navy  regulation  (Navy  Regulations,  1913,  R-3991),  requiring  pay 

officers  to  disburse  money  under  certain  contingencies,  is  an  order  of  the  Secretary  of 
the  Navy,  and  as  such  protects  the  pay  officer  from  responsibility  and  is  conclusive 
upon  the  accounting  officers.  (30  Op.  Atty.  Gen.  — ,  reversing  21  Comp.  Dec.  554, 
357,  245.)  See  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915. 

68.  Personal  approval  by  President-^-Of  changes  in  Navy  Regulations  not  required,  but 

nevertheless  the  practice  of  submitting  to  the  President  for  approval,  regulations  and 
changes  therein  issued  pursuant  to  section  1547,  R.  S.,  will  be  continued  as  a  general 
policy  subject  to  modification  in  special  cases  if  deemed  advisable.  See  REGULA- 
TIONS, NAVY,  16-19. 

69.  President— As  Commander  in  Chief  may  issue  regulations.    See  REGULATIONS,  NAVY, 

13,  15. 

70.  Pursuant  to  or  In  execution  of  a  statute.    See  REGULATIONS,  NAVY,  13, 15. 

71.  Regulations  issued  by  head  of  a  department  and  not  expressly  approved  by 

Congress — It  is  established  by  the  authorities  that  a  regulation  not  expressly 
approved  by  Congress  may  nevertheless  have  the  force  and  effect  of  statute  law  where 
the  approval  of  Congress  may  be  implied.  Thus,  it  has  been  held  that  it  "can  not  for 
a  moment  be  doubted  that  Congress  in  legislating  with  reference  to  the  Naval 
Academy  knows  of  the  existence  of  regulations  issued  by  the  Secretary  of  the  Navy 
relating  to  the  same  subject."  (Benjamin  v.  U.  S.,  16  Ct.  Cls.  484;  See  also  19  Op. 
Atty.  Gen.  591.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  5. 

72.  R.  S.  161 — "The  head  of  each  department  is  authorized  to  prescribe  regulations,  not 

inconsistent  with  law,  for  the  government  of  his  department,  the  conduct  of  its 
officers  and  clerks,  the  distribution  and  performance  of  its  business,  and  the  custody, 
use,  and  preservation  of  the  records,  papers,  and  property  appertaining  to  it."  (R. 
S.  161). 

73.  Same— "In  determining  whether  the  regulations  promulgated  by  him  are  consistent 

with  law,  we  must  apply  the  rule  of  decision  which  controls  when  an  act  of  Congress 
is  assailed  as  not  being  within  the  powers  conferred  upon  it  by  the  Constitution; 
that  is  to  say,  a  regulation  adopted  under  section  161,  R.  S.,  should  not  be  disregarded 
or  annulled  unless,  in  the  judgment  of  the  court,  it  is  plainly  and  palpably  incon- 
sistent with  the  law.  Those  who  insist  that  such  a  regulation  is  invalid  must  make  its 
invalidity  so  manifest  that  the  court  has  no  choice  except  to  hold  that  the  Secretary 
has  exceeded  his  authority  and  employed  means  that  are  not  at  all  appropriate  to 
the  end  specified  in  the  act  of  Congress."  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915, 
p.  4.  See  also  29  Op.  Atty.  Gen.  478. 

74.  Same — Regulations  promulgated  under  section  161,  R.  S.,  have  the  force  of  law. 

(Gratiot  v.  U.  S.,  4  How.  80;  Ex  parte  Reed,  100  U.  S.  18)  but  they  are  not  the  law  itself. 
Hence  where  rights,  duties,  and  obligations  are  denned  by  statute  they  can  not  be 
taken  away  or  abridged  by  the  regulations  of  an  executive  department.  (Campbell 
V.  U.  S.,  107  U.  S.  407,  410.J 

The  purpose  of  a  regulation  of  an  executive  department  is  to  carry  into  effect  the 
law  in  respect  to  which  it  may  be  promulgated.  (Laurey  etal  v.  U.S.,  32  Ct.  Cls. 
265,  266.)  File  5362-25,  J.  A.  G.,  June  29,  1911,  pp.  5-6;  3980-452:2,  J.  A.  G.,  Dec.  8, 
1909,  p.  6. 

75.  R.  S.  285— "That  the  Secretary  of  the  Navy  is  authorized  with  the  approval  of  the 

President  to  make  administrative  regulations  under  the  provisions  of  section  285, 
R.  S.,  has  never  been  questioned  by  the  accounting  officers.  On  the  contrary,  general 
regulations  issued  under  that  section  have  been  repeatedly  sustained  and  enforced 
by  the  Comptroller  of  the  Treasury.  (See  for  example  8  Comp.  Dec.  756;  9  Comp. 
Dec.  545)."  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  7. 


REGULATIONS,    NAVY.  525 

76.  R.  S.  1547— "The  orders,  regulations,  and  instructions  issued  by  the  Secretary  of  the 

Navy  prior  to  July  14,  1862,  with  such  alterations  as  he  may  since  have  adopted, 
with  the  approval  of  the  President,  shall  be  recognized  as  the  regulations  of  the  Navy, 
subject  to  alterations  adopted  in  the  same  manner."  (R.  S.  1547.)  File  6460-60, 
J.  A.  G.,  Jan.  22, 1913,  p.  3;  26254-1451:11,  J.  A.  G.,  Apr.  12,  1915,  p.  2. 

77.  Same — "The  Secretary  of  the  Navy  is  authorized  to  establish  'Regulations  of  the 

Navy,'  with  the  approval  of  the  President.  (12  Stat.  565;  Rev.  Stat.  sec.  1547.)  Such 
'regulations  for  the  administration  of  law  and  justice'  were  issued  on  the  15th  of  April, 
1870  *  *  *  Such  regulations  hive  the  force  of  law."  (Gratiot  v.  U.  S.,  4  How.  80.) 
File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  2. 

78.  Same — "  With  reference  to  Navy  Re-rulations,  issued  under  section  1547,  R.  S.,  Attorney 

General  Devens  said  that  what  Congress  had  conferred  on  the  Secretary  of  the  Navy 
was  not  any  portion  of  its  general  power  of  legislation,  but  only  the  right  to  make 
appropriate  regulations  for  the  performance  of  their  duties  by  those  whom  Congress 
had  placed  under  his  official  control.  But  if  it  is  true  that  the  source  from  which 
the  President  derives  his  authority  to  make  regulations  is  statutory,  in  the  absence 
of  statute  he  would  have  no  authority,  and  this  we  know  not  to  be  so.  There  is  no 
similar  existing  provision  of  law  relating  to  the  Army,  but  the  power  of  the  President 
to  make  regulations  for  the  Army  is  unquestioned."  (Lieber  on  Regulations,  49.) 

79.  Same — "By  section  1547,  R.  S.,  passed  since  the  adoption  of  the  Navy  Regulations 

1870,  'the  orders,  regulations,  and  instructions  issued  by  the  Secretary  of  the  Navy 
prior  to  July  14, 1862,  with  such  alterations  as  he  may  since  have  adopted,  with  the 
approval  of  the  President,  shall  be  recognized  as  the  regulations  of  the  Navy,  subject 
to  alterations  adopted  in  same  manner.'  This  legislative  recognition  of  the  Navy 
Regulations  of  1870 '  must,'  as  was  said  by  Chief  Justice  Marshall  of  a  similar  recogni- 
tion of  the  Army  Regulations  in  the  act  of  April  24, 1816,  ch.  69,  sec.  9  (3  Stat.  298), 
'6eMn<fers<ooiiasgivingtothoseregulationsthesanctionofthelaw.'  (U. S. v. Maurice, 
2  Brock.  96, 105;  Ex  parte  Reed,  100  U.  S.  13.)"  (Smith  v.  Whitney,  116  U.  S.  180, 
181.)  File  26254-1451:11,  J.  A.  G.,  Apr.  12, 1915,  p.  2. 

80.  Revocation  and  annulment — Of  Navy  regulation  by  the  Secretary  of  the  Navy. 

G.0. 120,  April  1,1869. 

81.  Source  and  authority  for  Navy  Regulations.    See  REGULATIONS,  NAVY,  76-79. 

82.  Subject— Regulations  must  confine  themselves  to  their  subject.    See  File  26254-1451: 

11,  Apr.  12, 1915. 

83.  Suspension  of  regulations.    See  REGULATIONS,  NAVY,  13,  91. 

84.  Uniform— Regulations  must  be  uniform. 

85.  Usages  of  the  service— Merged  in  written  regulations.  See  CUSTOMS  OF  THE  SERVICE.  6. 

86.  Validity  of — Whether  a  Navy  regulation  has  binding  force  as  law  on  the  accounting 

officers  of  the  Government  is  a  question  of  law  and  not  one  of  accounting  and  the 
Attorney  General  will  render  an  opinion  thereon  upon  request  of  the  Secretary  of 
the  Navy.  See  ATTORNEY  GENERAL,  13. 

87.  Same — The  same  rule  o_f  decision  should  be  applied  in  determining  whether  an  execu- 

tive regulation  is  consistent  with  Ifw  as  controls  when  the  constitutionality  of  an  act 
of  Congress  is  brought  into  question.  (Boske  v.  Comingore,  177  U.  S.  459,  470.) 
File  20254-1451: 11,  J.  A.  G.,  Apr.  12,  1915,  p.  7. 

88.  Same — In  referring  to  a  regulation  which  had  been  in  force  for  three-quarters  of  a 

century  without  its  validity  ever  having  been  questioned  it  was  held:  "  Such  long 
acquiescence  is  of  itself  sufficient  to  establish  the  regulation  as  a  valid  one.  if  the  rule 
laid  down  by  the  Supreme  Court  is  to  be  followed."  File  26254-1451:  11,  J.  A.  G., 
Apr.  12, 1915,  p.  8.  See  also  REGULATIONS,  NAVY,  50. 

89.  Same — "The  validity  of  a  regulation  not  expressly  approved  either  by_  Congress  or 

the  President  will  be  sustained  by  the  Supreme  Court  unless  "it  is  plainly  and  pal- 
pably inconsistent  with  law,"  and  those  who  insist  upon  its  invalidity  succeed  in 
making  its  invalidity  "  so  manifest  that  the  court  has  no  choice  "  except  to  sustain  their 
contention.  File  26254-1451:11,  Apr.  12,  1915,  p.  8. 

90.  Waiving  regulations — If  the  Navy  Regulations,  issued  under  section  1547,  R.  S.,  be 

waived  in  any  case,  express  personal  authority  of  the  President  for  such  waiver  is 
necessary,  for  the  prirciple  is  recognized  in  the  decisions  that  regulations  can  be 
waived  only  by  the  authpritv  which  made  them,  and  the  President  and  the  Secretary 
of  the  Navy  both  act  in  issuing  regulations  under  section  1547,  R.  S.  '  File  5160-60, 
J.  A.  G.,Jan.  22,  1913,  p.  3.  See  ^n  this  connection,  6  Comp.  Dec.  589.  But  see 
REGULATIONS.  NAVY,  16,  which  holds  that  the  Secretary  ofthe  Navy  may  change 
Navy  Regulations. 


526  REGULATIONS,    NAVY. 

91.  Same— The  records  of  the  department  show  that  for  a  great  many  years  precedents 

have  existed  and  been  followed,  amounting  practically  to  a  custom  on  the  part  of  the 
Secretary  of  the  Navy  to  waive  provisions  of  the  Navy  Regulations  in  individual 
cases,  where  such  action  for  any  reason  seemed  advisable.  The  exercise  of  such  power 
by  the  Secretary  of  the  Navy  was  sustained  by  the  Comptroller  of  the  Treasury  in  a 
decision  rendered  January  8, 1900,  in  which  it  was  said:  "  I  know  of  no  law  or  rule 
which  forbids  the  head  of  a  department  from  suspending  the  operation  of  any  regu- 
lation similar  to  this  in  individual  instances.  The  effect  of  such  suspension  is  to 
cause  a  want  of  uniformity  in  the  operation  of  these  regulations,  but  if  this  be  a  fault 
it  is  chargeable  to  the  admin  istration  of  the  regulations,  and  does  not  imply  the  want 
of  power  to  so  suspend  the  operation  of  a  regulation  in  individual  cases."  In  the 
case  considered  by  the  Comptroller  it  appears  from  his  decision  that  the  Secretary  of 
the  Navy  directed  that  the  operation  of  the  regulation  in  question  be  suspended;  and 
the  comptroller  stated  that  such  regulation  "was  waived  by  the  power  which  made 
these  regulations."  This  last  statement  was  literally  true,  as  at  that  time  Navy 
Regulations  and  changes  therein  were  not  expressly  approved  by  the  President,  but 
the  entire  matter  of  making,  modifying,  repealing,  and  suspending  or  waiving  Navy 
Regulations  was  handled  entirely  by  the  Secretary  of  the  Navy.  Inasmuch  as  the 
Navy  Regulations  and  changes  therein  are  now  personally  approved  by  the  Presi- 
dent, it  follows  that  a  provision  of  such  regulations  in  individual  cases  can  be  sus- 
pended, if  at  all,  only  by  the  personal  action  of  the  President.  File  5460-60,  J.  A.  G., 
Jan.  22, 1913,  pp.  2-3. 

REGULATIONS,  NAVY,  16,  holds  that  the  Secretary  of  the  Navy  may  create  and 
amend  regulations  under  R.  S.  1547,  and  it  follows  that  he  may  therefore  waive 
such  regulations. 

92.  Same — A  Navy  regulation  issued  under  section  1547,  R.  S.,  may  be  waived  by  the 

Secretary  of  the  Navy.  Pile  39,80-1044,  Mar.  19,  1915.  Sre  also  ACTING  ASSISTANT 
SURGEONS,  2,  holding  that  departmental  circulars  may  be  waived. 

93.  Same — Policy  of  the  department — "  The  department  is  averse  to  waiving  the  provisions 

of  the  Regulations  except  in  cases  of  great  necessity."  File  17789-10,  Sec.  Navy,  May 
5, 1909,  withreference  to  waiving  age  requirements  for  appointment  of  warrant  officers. 

94.  Same^"  A  regulation  is  usually  simply  a  method  of  administering  a  law.    Such  is  the 

'stratum  of  this  appro- 
pu  do  not  abrogate  or 

pleasure,  always  provided  that  you'do  not  violate  some  law  in  your  changed  or  modi- 
fied regulation,  or  by  making  such  change,  modification,  or  waiver,  you  do  not  en- 
croach upon  or  abrogate  some  contractual  right  fully  vested  before  notice  of  such 
change,  modification,  or  waiver."  (9  Comp.  Dec.  280).  File  5460-60,  J.  A.  G.,  Jan. 
22, 1913. 

95.  Same— "The  provisions  of  1-4721  may  be  waived  within  the  discretion  of  the  depart- 

ment."   File  26516-162,  J.  A.  G.,  Dec.  8, 1914;  C.  M.  O.  6, 1915,  9. 

96.  Weight  of  regulations.    See  REGULATIONS,  NAVY,  38-47. 

REGULATIONS  FOR  THE  GOVERNMENT  OF  THE  NAVAL  DISTRICTS  OF 
THE  UNITED  STATES.  File  24514-39: 10,  J.  A.  G.,  Nov.  6,  1916. 

REGULATIONS  OF  THE  UNITED  STATES  NAVAL  ACADEMY,  1911. 

1.  R.  S.,  161.   See  MIDSHIPMEN,  74;  NAVAL  ACADEMY,  21. 

2.  R.  S.,  1547— The  Court  of  Claims  in  Weller  v.  U.  S.  (41  Ct.  Cls.,  324, 343)  stated  that  these 

regulations  are  presumably  issued  by  the  Secretary  of  the  Navy  pursuant  to  section 
1547,  R.  S. 

These  regulations,  however,  are  not  issued  with  the  express  approval  of  the  Presi- 
dent as  is  the  practice  under  section  1547,  R.  S. 

REINSTATEMENT  OF  FORMER  MARINE  OFFICERS  BY  ACT  OF  AUG.  29, 

1916.    See  MARINE  CORPS,  4 . 

REINSTATEMENT  OF  MIDSHIPMEN.    See  MIDSHIPMEN,  75,  76. 

REINSTATEMENT  OF  RESIGNED  OFFICERS.  See  MIDSHIPMEN,  72;  RESIG- 
NATIONS, 6,  21,  22. 

REJECTION  OF  ACCUSED'S  PLEA  OF  GUILTY  IN  A  LESS  DEGREE  THAN 
CHARGED.  See  COURT,  93;  GUILTY  m  A  L  ESS  DEGREE  THAN  CHARGED,  9-11;  TRY- 
ING CASE  OUT  OF  COURT. 


REPORTS   OF  DESERTERS   RECEIVED   ON   BOARD.         527 

"RELATIVE." 

1.  Definition— Withinmeaningofactof  JuneSO,  1914(38Stat. 406).    See  FLAGS,  2. 

2.  Same— Within  meaning  of  act  of  August  22, 1912  (37  Stat.329),regardingdeath  gratuities. 

See  DEATH  GRATUITY,  26. 

RELEASES,  DESERTERS'.    See  DESERTERS,  21, 23. 
RELEVANCY  OF  EVIDENCE.    See  EVIDENCE,  102  103. 

RELIGION. 

1.  Freedom  of  opinion — In  religion. 

2.  Religious  beliefs.    C.  M.  0. 16, 1916,  9.    See  also  TYPHOID  PROPHYLACTIC. 

REMARKS  BY  JUDGE  ADVOCATE  AND  COUNSEL.    See  ARGUMENTS. 

REMEDIAL  LAWS. 

1.  Removal  of  charge  of  "Desertion" — Laws  providing  for  the  removal  of  the  charge 
of  "Desertion"  standing  on  the  records  of  the  Array  or  Navy  against  certain  classes 
of  persons  who  served  in  the  Civil  War  are  remedial  statutes.  File  26539-551,  Mar. 
17, 1913. 

REMISSION. 

1.  Pay— Remission  of  unexecuted  loss  of  pay  by  discharge.     See   BAD-CONDUCT  DIS- 

CHARGE, 3. 

2.  Pay  adjudged  forfeited  by  courts-martial— Should  in  general  be  remitted  only  as 

an  act  of  clemency  toward  accused.    See  ALLOTMENTS,  6,  7;  CLEMENCY,  53. 

3.  President— Remitted  sentence  of  an  officer  and  directed  that  he  be  reprimanded.   C. 

M.  O.  48, 1904. 

4.  Sentence — Mitigation  or  remission  by  convening  authority  after  final  action  is  unau- 

thorized.   See  CONVENING  AUTHORITY,  62.   See  also  SETTING  ASIDE. 

5.  Same — Remitted  to  permit  subsequent  sentence  to  take  effect — The  accused  was  tried 

by  court-martial  and  sentenced  to  be  restricted  to  the  limits  of  his  ship  for  six  months 
and  to  be  publicly  reprimanded.  He  was  subsequently  tried  by  general  court-mar- 
tial and  sentenced  to  dismissal.  The  convening  authority  in  his  action  on  the  first 
case  approved  the  proceedings,  findings,  and  sentence,  but  remitted  the  sentence 
in  view  of  the  fact  that  the  sentence  of  dismissal  adjudged  by  the  general  court- 
martial  before  which  he  was  subsequently  tried,  was  approved,  confirmed, and  exe- 
cuted. C.  M.  O.  17,  1912. 

6.  Unexecuted  part  of  sentence— Remitted  by  discharge.    C.  M.  O.  22, 1915,  5. 

REMISSION    BY   CONVENING    AUTHORITY    AFTER   FINAL    ACTION.     See 

CONVENING  AUTHORITY,  62. 

REMOVAL  OF  MARK  OF  DESERTION.    See  MARK  OF  DESERTION. 

REMOVAL  OF  PAPERS  FROM  OFFICERS'  RECORDS.  See  RECORDS  OF  OFFICERS, 
10,  11. 

RENDERING  A  FALSE  AND  FRAUDULENT  RETURN,  IN  VIOLATION  OF 
ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOVERNMENT  OF  THE 
NAVY. 

1.  Officer— Charged  with.  C.  M.  O.  4, 1915;  7, 1913;  39, 1913.  See  also  C.  M.  O.  7, 1894;  92, 
1903;  18, 1907;  38,  1907;  7,  1894;  203,  1902;  G.  C.  M.  Rec.  16956. 

RENOUNCING  CITIZENSHIP.    See  CITIZENSHIP,  17, 18. 

REPEAL  OF  STATUTES.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  108 , 109. 

REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD. 

1.  Collateral  facts.    See  REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD,  4. 

2.  Definition — The  "Report  of  deserter  received  on  board"  is  an  official  paper  which  is 

required  to  be  made  in  the  course  of  official  duty  and  as  the  result  of  personal  knowl- 
edge, and  it  would  appear  that  the  above-mentioned  report  should  properly  be  admis- 
sible to  prove  the  date  and  place  of  return  from  unauthorized  absence .  File  26504-142, 
J.  A.  G.,  May  18, 1912.  See  also  G.  C.  M.  Rec.  21180;  21198. 

50756°— 17 34 


528    REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD. 

3.  Evidence  to  prove  "Desertion" — "The  judge  advocate  introduced  against  objection 

by  the  accused  the  'Report  of  deserter  received,'  although  there  was  better  evidence 
at  hand,  and  the  court  overruled  the  objection.  This  was  an  error  on  the  part  of 
the  court,  as  witnesses  to  prove  all  the  facts  that  it  was  attempted  to  prove  oy  the 
introduction  of  the  above-mentioned  report  could  have  been  and  should  have  been 
summoned  to  testify  as  to  those  facts.  (Par.  XII  of  the  department's  instructions 
of  May  14, 1908.)  In  permitting  the  judge  advocate  to  decide  for  it  that  the  witnesses 
in  question  could  not  oe  summoned  without  injury  to  the  service  the  court  permitted 
a  usurpation  of  its  own  power  by  one  who  was  not  a  member.  It  also  appeared  that 
the  court,  after  due  consideration,  decided  that  its  former  ruling  on  the  report  was  in 
error  and  that  as  evidence  the  contents  of  that  report  should  be  stricken  from  the 
record." 

"  It  also  appeared  from  the  testimony  of  a  chief  yeoman  of  the  receiving  shipon  which 
*  *  *  was  delivered,  who  was  finally  called  as  a  witness,  that  the  manner  in  which 
reports  are  made  of  deserters  received  on  board  that  vessel  is  not  such  as  to  warrant 
their  being  received  in  evidence,  even  as  to  the  return  of  a  man  to  the  service." 

These  irregularities,  and  the  "vacillation  of  the  court  in  its  rulings  as  to  the  admis- 
sion of  the  '  Report  of  deserters  received '  rendered  the  proceedings  of  such  a  character 
that  it  was  considered  to  the  best  interests  of  the  administration  of  justice  that  they 
be  disapproved,"  and  the  accused  discharged  as  "undesirable  for  the  service"  as  an 
independent  proceeding.  C.  M.  O.  28,  1909,  3.  Parts  of  above  inconsistent  with 
C.  M.  O.  31, 1915, 14-16,  are  overruled.  See  SERVICE  RECORDS,  16. 

The  accused  was  tried  for  "  Desertion."  The  judge  advocate  introduced  in  evidence 
theenlistmentrecordoftheaccusedandthe"ReT>ort  of  deserter  received  on  board." 
The  department  held  that  as  the  accused  "had  absented  himself  but  a  short  time 
previously  from  and  was  delivered  at  the  station  where  he  was  tried,  it  would  appear 
that  neither  of  these  documents  was  the  best  evidence  of  the  facts  recorded  therein, 
and  being  but  secondary  evidence,  are  not  admissible."  C.  M.  O.  47,  1910,  6. 
Overruled by  C.  M.  0. 31, 1915, 14-16,  contained  in  SERVICE  RECORDS,  16. 

4.  Same — Accused  was  charged  with  "  Desertion, "  and  upon  arraignment  pleaded  "Not 

guilty."  "The  only  witness  for  the  prosecution  was  the  judge  advocate,  who  read 
from  two  documents  the '  Enlistment  record  of  the  accused '  and  a  '  Report  of  deserter 
received, 'neither  of  which  had  been  offered  in  evidence.  These  documents,  ifunob- 
jected  to,  *  *  *  may  be  admitted  as  evidence,  but  only  when  better  evidence  is 
not  obtainable.  In  any  case,  however,  the  most  that  can  be  shown  by  them  is  thedate 
when  and  place  from  which  the  original  absence  began,  and  similarly  as  to  its  termi- 
nation. Any  other  collateral  facts  contained  therein,  such  as  a  statement  made  by 
the  accused,  clothing  worn,  etc.,  are  inadmissible."  In  view  of  the  foregoing  and  to 
the  fact  that  the  accused  was  not  "accorded  his  constitutional  right  to  cross-examine 
the  only  witness  produced  for  the  prosecution,"  the  proceedings,  findings,  and  sen- 
tence were  disapproved.  C.  M.  O.  37,  1909,  9.  C.  M.  O.  31,  1915, 14-16  (SERVICE 
RECORDS,  16),  overrules  everything  in  aboye  inconsistent  with  it. 

5.  Same— The  judge  advocate,  while  on  the  witness  stand,  introduced  as  evidence  the 

"Report  of  adeserterreceived  on  board,  "signed  by  the  command  ing  officer  of  the  vessel 
on  which  the  accused  was  received  from  desertion.  The  officer  who  signed  the  report 
was  also  a  member  of  the  court  before  which  the  accused  was  being  tried.  Therefore 
the  report  itself  indicated  the  existence  of  higher  evidence  for  which  it  was  only  a  sub- 
stitute, and  the  higher  evidence  being  obtainable,  the  substitute  was  incompetent. 
The  accused  having  been  brought  to  trial  at  the  navy  yard  where  he  was  received  from 
desertion,  the  best  evidence  of  his  delivery  to  the  naval  authorities  would  have  been 
the  oral  testimony  of  those  who  witnessed  such  delivery ;  and  since  better  evidence  was 
obtainable  there  was  no  ground  for  the  admission  in  evidence  of  this  written  report. 
C.  M.  O.  49,  1910,  10.  C.  M.  O.  31,  1915,  14-16  (SERVICE  RECORDS,  16),  overrules 
everything  in  above  inconsistent  with  it. 

6.  Same — Accused  was  charged  with  "Dcsercion"  and  the  court  accepted  the  plea  of 

"Guilty  in  a  less  degree  than  charged,"  on  the  advice  of  the  judge  advocate, who 
stated  that  it  was  "impossible  to  summon  witnesses  for  the  prosecution." 

The  judge  advocate  was  furnished  with  the  "Service  record"  and  "Report  of 
deserter  received  on  board."  The  latter  paper  showed  that  two  officers,  one  who 
reported  and  another  who  witnessed  the  return  of  the  accused,  were  available  as 
witn« 


REPORTS    OF   DESERTERS    RECEIVED    ON    BOARD.          529 

The  "Service  record"  could  have  been  introduced  by  the  judge  advocate  in  his 
capacity  of  legal  custodian  of  that  document  to  prove  that  that  accused  was  charged 
with  "Desertion"  from  the  place  and  date  alleged  in  the  specification,  and  the  two 
witnesses  above  referred  to  could  have  testified  as  to  the  facts  surrounding  the  return 
of  the  accused  to  the  service.  (Or  according  to  the  department's  rulings  if  these 
witnesses  were  not  available  the  "Eeport  of  deserter  received  on  board  "  could  have 
been  introduced  to  prove  the  date  of  return  of  the  accused.)  Such  having  been 
accomplished,  the  burden  would  then  have  been  shifted  upon  the  accused  to  explain 
the  lengthy  unauthorized  absence;  otherwise  the  court  would  have  been  justified  in 
reaching  a  finding  of  guilty  of  the  charge  of  "  Desertion." 

However,  the  fact  that  the  court  accepted  the  plea  of  the  accused  can  not  be  con- 
sidered as  having  adversely  affected  his  interests,  but  such  improper  procedure  on 
the  part  of  the  court  and  the  judge  advocate  thereof  indicates  a  dereliction  in  the 
performance  of  their  duties  as  such.  C.  M.  0. 10,  1912,  7-8.  C.  M.  O.  31,  1915,  14-16 
(SERVICE  RECORDS,  16),  overrules  everything  in  above  inconsistent  with  it. 
7.  Same— For  department's  policy  at  the  present  date,  see  SERVICE  RECOBDS,  16. 

REPORTS  ON  FITNESS.    See  also  RECORDS  OF  OFFICERS. 

1.  Admissions  by  judge  advocates— Of  contents  of  reports  on  fitness.    See  REPORTS  ON 

FITNESS,  5. 

2.  Appeals  by  officers  to  Secretary  of  Navy  to  have  record  of  punishment  re- 

moved—An officer  appealed  to  the  Secretary  of  the  Navy  to  have  a  "report  of  a 
punishment"  suspension  for  10  days  imposed  on  him  by  the  commanding  officer  of 
a  naval  station  removed  from  his  record.  This  officer  was  the  convening  authority 
of  a  summary  court-martial  and  refused  to  obey  the  order  of  the  commanding  officer 
of  the  naval  station  (who  was  the  senior  officer  present)  to  modify  his  action  on  a 
record.  The  department  declined  to  sustain  the  appeal  for  two  reasons:  (1)  The 
officer's  deductions  respecting  the  requirements  of  the  Navy  Regulations  in  the 
matter  were  erroneous;  and  (2)  if  they  had  been  correct  it  would  have  been  his  duty 
in  a  matter  of  this  character  promptly  to  have  obeyed  the  order  of  his  superior  officer, 
presenting  to  him  afterwards  his  appeal.  While  the  department  could  not  under 
the  circumstances  intervene  with  respect  to  the  punishment  imposed,  a  copy  of  the 
department's  letter  was  filed  with  the  officer's  record  in  order  that  the  action  taken 
upon  review  of  the  matter  might  fully  appear.  File  1192-1,  Sec.  Navy,  Mar.  21, 1905. 
See  also  File  14818-3,  Sec.  Navy,  Oct.  26, 1908;  ORDERS,  67. 

3.  Same — An  enlisted  man  being  tried  by  summary  court-martial  pleaded  guilty  and  was 

sentenced  to  the  loss  of  one  month's  pay.  The  commanding  officer,  who  was  the  con- 
vening authority,  deeming  the  sentence  inadequate,  returned  the  record  for  revision, 
thus  affording  the  court  full  opportunity  to  reconsider  its  action.  The  court  adhered 
to  its  former  sentence.  After  this,  the  commandant,  as  senior  officer  present  in 
reviewing  the  case  expressed  his  concurrence  in  the  opinion  of  the  convening  authority, 
that  the  sentenced  adjudged  was  entirely  inadequate  to  the  seriousness  of  the  offense 
to  which  the  accused  pleaded  guilty;  and  made  certain  remarks  which  he  intended 
to  reflect  on  the  ind  ividual  professional  character  of  the  members  of  the  court  who  had 
voted  for  the  inadequate  sentence.  The  senior  officer  present  further  directed  that 
his  remarks  be  brought  to  the  attention  of  the  members  of  the  court,  and  that  each 
member  be  given  an  opportunity  to  make  such  statement  as  he  desired  in  reply 
thereto.  All  three  members  of  the  court  in  their  reply  indicated  that  they  did  not 
desire  to  make  any  statement  at  that  time.  The  commanding  officer  subsequently 
entered  a  brief  notation  of  the  facts  on  the  individual  reports  on  fitness  of  the  officers 
concerned,  as  it  was  his  duty  to  do  in  any  case  where  the  professional  fitness  of  the 
officer  reported  upon  had  been  brought  in  question.  Each  of  these  officers  individu- 
ally requested  of  the  Secretary  of  the  Navy  that  this  entry  be  removed  from  his  report 
onfitness.  Held,  The  Secretary  of  the  Navy  fully  concurs  in  the  action  of  the  com- 
mandant, as  senior  officer  present,  on  the  summary  court-martial  case  in  question, 
and  denies  the  requests  of  the  three  officers  concerned  to  have  the  record  thereof 
removed  from  their  reports  on  fitness.  Had  any  member  voted  for  an  adequate, 
sentence  he  could  have  so  stated.  (See  C.  M.  O.  42,  1915,  p.  8.)  (See  File  7719-03, 
Sec.  Navy,  Nov.  18,  1903.  155-04,  G.  C.  M.  Rec.  No.  12010.)  File  25675-9-10-11,  Sec. 
Navy,  Oct.  28, 1915;  C.  M.  0. 49, 1915, 20-21.  See  also  CRITICISM  OF  COURTS-MARTIAL, 
36. 


530  REPORTS   ON   FITNESS. 

4.  Same— An  officer  requested  that  the  offense  of  neglect  of  duty  be  not  entered  on  his 

record.    C.  M.  O.  4,  1911,  1. 

5.  Evidence,  as — A  question  was  presented  to  the  court  in  connection  with  a  request  made 

upon  the  judge  ad  vocate,  out  of  court,  by  counsel  for  the  accused  that  the  judge  advo- 
cate admit  that  the  efficiency  reports  of  the  accused  contained  no  entry  with  reference 
to  intoxication;  this  in  order  to  save  the  time  of  the  court  and  the  expense  of  making 
copies  of  the  efficiency  reports  to  be  introduced  in  evidence.  This  request,  however, 
was  later  withdrawn  by  counsel. 

_  It  has  been  held  by  the  department  that  it  is  not  necessary  for  the  court  to  append 
either  the  originals  or  certified  copies  of  efficiency  reports  to  the  record  of  proceedings 
when  introduced  in  evidence  before  a  general  court-martial,  but  that  a  simple  notation 
in  the  record  that  they  were  admitted  in  evidence  is  sufficient,  as  the  originals  form 
a  part  of  the  officer's  official  record  on  file  in  the  department,  where  they  may  readily 
be  examined  at  any  time  in  connection  with  the  court-martial  proceedings.  (File 
26261-7777,  Sec.  Navy,  July  2,  1913.) 

The  complete  record  of  an  officer,  including  his  efficiency  reports,  is  customarily 
furnished  the  judge  advocate  in  the  case  of  an  officer  to  be  tried  by  general  court- 
martial.  (C.  M.  0. 1, 19147  p.  7.)  Where  it  is  desired  to  put  this  record  or  any  part 
thereof  in  evidence  the  original,  where  available,  should  be  offered,  and  the  action 
of  a  judge  advocate  in  making  admissions  as  to  its  contents  would  not  in  general 
meet  with  the  approval  of  the  department.  C.  M.  O.  19,  1915,  9.  See  also  C.  M.  O. 
14,  1916,  2. 

6.  Same — Officers'  service  records  are  kept  in  the  department's  files,  where  they  may  be 

consulted  in  connection  with  the  review  of  any  court-martial  case  in  which  the  same 
might  have  been  received  in  evidence.  It  would  be  improper  to  attach  an  officer's 
service  record  to  the  record  of  proceedings  of  a  court-martial  as  a  permanent  exhibit 
therewith.  (In  this  connection  see  C.  M.  O.  1,  1914,  p.  7;  19,  1915,  p.  9.)  C.  M.  O.  29, 
1915,  8. 

7.  Same — A  witness  on  the  part  of  the  defense  was  shown  various  reports  on  fitness  and 

answers  to  interrogatories  respecting  the  accused,  "and  was  asked  by  counsel  for 
the  accused  and  permitted  by  the  court  to  read  in  evidence  extracts  from  such  reports. 
Answers  to  interrogatories  are  made  on  oath;  reports  on  fitness  on  honor;  but  they 
are  not  admissible  as  evidence  in  a  case  of  this  character."  C.  M.  O.  104,  18%,  6. 
But  see  REPORTS  ON  FITNESS,  5. 

8.  Same— The  record  of  an  officer  was  introduced  in  evidence  and  then  questions  asked 

the  witness  concerning  parts  of  it.    G.  C.  M.  Rec.  30562,  pp.  61-64. 
Competency  of  reports  on  fitness  as  evidence  to  show  general  reputation,  and  char- 
acter.   File  3009-02,  J.  A.  G.,  April  10, 1902;  20  J.  A.  G.  10. 

9.  General  court-martial  member — Appealed  against  criticism  by  convening  authority. 

See  CRITICISM  OF  COURTS-MARTIAL,  35. 

10.  Summary  court-martial  members— Protested  against  entry  as  to  manner  of  per- 
forming duty.    See  REPORTS  ON  FITNESS,  3. 

REPRESENTATIVE.    (Member  of  Congress. ) 
1.  Witness — Before  a  court  of  inquiry.    See  CONGRESS,  12. 

REPRIMAND.    See  also  PUBLIC  REPRIMAND. 

1.  Courts-martial— May  be  reprimanded  for  leniency.    See  CRITICISM  OF  COURTS-MAR- 

TIAL, 55. 

2.  Definition — "The  definition  of  the  word  'reprimand,'  as  given  in  Webster's  dictionary 

is  'severe  or  formal  reproof;  reprehension,  public  or  private.'"  '"The  terms  of  a 
reprimand  are  not  prescribed  *  *  *  but  are  left  to  the  discretion  of  the  officer' 
administering  the  reprimand.  (Harwood,  p.  136)."  C.  M.  O.  9, 1893,  9.  See  also 
PUBLIC  REPRIMAND,  4. 

3.  Jeopardy,  former.    See  JEOPARDY,  FORMER. 

4.  Letters  of— Jurisdiction  of  office  of  Judge  Advocate  General  and  Bureau  of  Navigation. 

J.  A.  G.,  Feb.  2,  1916. 
•    5,  Officers.   See  OFFICERS,  101. 

6.  President  directed— Accused  who  was  sentenced  to  lose  numbers  by  sentence  of  general 
court-martial  appealed  from  such  sentence — Case  was  carefully  reviewed  by  Judge 
Advocate  General  and  submitted  to  President,  who  directed  that  the  sentence  be 
mitigated  and  the  accused  "be  reprimanded  for  neglect  of  duty."  C.  M.  O.  48, 1904. 


REPRIMAND.  531 

7.  Private  reprimand.    See  PRIVATE  REPRIMAND. 

8.  Public  reprimand.    See  PUBLIC  REPRIMAND. 

9.  Right  of  senior  officers  to  reprimand  subordinates.    See  PUBLIC  REPRIMAND,  17. 

10.  Secretary  of  the  Navy— It  is  within  the  d  iscretion  of  the  Secretary  of  the  Navy  to  express 

his  approval  or  disapproval  of  the  acts  or  omissions  of  any  officer,  enlisted  man,  or 
civil  employee  under  the  Navy  Department.  This  action  may  be  in  accordance 
with,  oreven  contrary  to,  the  findings  of  a  board  of  investigation  or  any  other  source 
of  information,  or  recommendation.  File  26283,  J.  A.  G.,  Feb.  12,  1913.  See  also 
COMMENDATORY  LETTERS,  2;  PUBLIC  REPRIMAND,  17;  SECRETARY  OF  THE  NAVY,  63. 

11.  Sentence  of  general  court-martial — Officer  was  sentenced  "To  be  reprimanded  by 

the  Secretary  of  the  Navy."  C.  M.  O.  36,  1908,  2;  5,  1904.  But  see  PUBLIC  REPRI- 
MAND, 19. 

12.  Same — "To  be  reprimanded  in  general  orders  by  the  honorable  Secretary  of  the  Navy." 

C.  M.  O.  7,  1879;  20,  1881;  16,  1882,  2;  41,  1883,  2;  43,  1884. 

REPUTATION. 

1.  Witnesses— Reputation  of  witness.  C.  M.  0. 16, 1916,  7.  See  also  16  Cyc.  1278;  Spurr  v. 
U.  8.  (87  Fed.  Rep.  701);  1  Greene  (16  ed.),  585;  REPORTS  ON  FITNESS,  8. 

REQUISITIONS. 

1.  State  civil  authorities— Requisitions  of  governors  of  States  necessary  in  certain  cases. 
See  GENERAL  ORDER  No.  121,  Sept.  17,  1914, 10. 

REREVISION.    See  PREVIOUS  CONNECTIONS,  23. 

RES  GESTAE. 

1.  Definition — "Things  done,  or,  literally  speaking,  the  facts  of  the  transaction;  the  things 

done,  the  facts  of  a  transaction;  circumstances  evidentiary  of  a  litigated  fact;  the  sub- 
ject matter,  or  thing  done;  the  transaction,  thing  done,  the  subject  matter;  the  sur- 
rounding facts  of  a  transaction, explanatory  of  an  act  or  showing  a  motive  for  acting; 
matters  incidental  to  a  main  fact  and  explanatory  of  it,  including  acts  and  words 
which  are  so  closely  connected  with  a  main  fact  as  will  constitute  a  part  of  it,  without 
a  knowledge  of  which  the  main  fact  might  not  be  properly  understood ;  events  speaking 
for  themselves  through  the  instinctive  words  and  acts  of  participants,  not  the  words 
and  acts  of  participants  when  narrating  theevents;  the  circumstances,  facts,  and  decla- 
rations which  grow  out  of  the  main  fact,  are  contemporaneous  with  it,  and  serve  to 
illustrate  its  character;  including  everything  which  may  fairly  be  construed  an  inci- 
dent of  the  event  under  consideration;  those  circumstances  which  are  the  automatic 
and  undesigned  incidents  of  a  particular  litigated  act,  and  are  admissible  when  illus- 
trative of  such  act."  (34 Cyc.  1633-1644).  SeeC.  M.  O.  7, 1911,  8. 

2.  Same — Another  form  of  declaration  of  a  third  person  which  is  admissible  is  that  which 

forms  a  part  of  what  is  legally  known  as  the  "  res  gestae."  By  the  term  "res  gestae  "  is 
meant  "the  circumstances  and  occurrences  attending  and  contemporaneous  with 
the  principal  fact  at  issue,  or  so  nearly  contemporaneous  with  it  as  to  constitute  a 
part  of  the  same  general  transaction,  which  explain  and  elucidate  such  fact  by  indi- 
cating its  nature,  motive,  etc."  No  rule  can  be  laid  down  which  will  be  a  guide  as 
to  what  is  and  what  is  not  a  part  of  the  res  gestae.  It  is  a  matter  which  must  be 
left  to  the  wise  discretion  of  the  court.  A  declaration  made  even  a  few  seconds  after 
the  occurrence  of  a  fact  has  been  held  not  to  be  a  part  of  the  res  gestae,  while  under 
other  circumstances  a  declaration  made  a  week  or  months  after  the  fact  has  been 
held  as  part  of  the  res  gestae.  Each  and  every  case  must  stand  on  its  own  merits, 
and,  as  before  stated,  must  be  left  to  the  sound  discretion  of  the  court,  which  of  course 
is  guided  by  the  circumstances  attending  the  case.  (Forms  of  Procedure,  1910,  pp. 
140-141).  See  C.  M.  O.  76, 1896,  8-9. 

3.  Same — "It  may  be  added  that  the  testimony  of  the  master-at-arms  in  support  of  this 

charge  concerning  the  accusations  made  by  the  crowd  was  not  admissible  as  a  part  of 
the  res  gestae,  as  it  does  not  appe'ar  that  the  statements  that  the  accused  had  insulted 
a  person  unknown  were  in  the  nature  of  spontaneous  outcries  on  the  part  of  thecrowd 
which  were  overheard  by  the  master-at-arms."  C.  M.  O.  7, 1911,  8. 

RES  JUDICATA. 

1.  Advancement  of  officers — Question  of  advancement  of  certain  officers  retired  under 
act  June  29, 1906  (34  Stat.  554) — The  act,  in  providing  that  officers  of  the  Navy  under 
certain  conditions  might  be  retired  with  the  rank  and  retired  pay  of  the  next  higher 
grade,  expressly  stipulated  that  those  benefits  should  be  granted  "in  the  discretion 


532  RES   JTJDICATA. 

of  the  President."  The  claims  of  the  officers  in  question  were  settled  by  the  decisions 
of  the  previous  administration  and  must  now  be  considered  closed.  File  27231-42:2, 3, 
Sec.  Navy,  Mar.  1, 1913. 

2.  Civil  War  service  of  officers.    File  27231-42.    See  aho  File  27231-42:2,  3;  20971-19:1, 

Apr.  14, 1913;  26252-71 :2,  Aug.  29, 1913;  20836-15,  Nov.  17, 1913. 

3.  Commissions.    See  COMMISSIONS,  14-16. 

4.  Definition— "It  appears  from  the  above  that  the  question  which  you  now  present  in 

your  request  of  July  28,  1916,  was  settled  and  decided  by  the  decision  of  a  previous 
administration,  and  this  more  than  thirteen  years  ago.  Accordingly,  it  must  now  be 
considered  as  closed  under  the  settled  legal  doctrine  of  resjudicata;  that  is,  that  decided 
cases  should  not  be  disturbed.  This  doctrine,  as  applied  to  the  decisions  of  executive 
departments,  is  well  established  by  a  long  line  of  opinions  rendered  by  eminent 
Attorneys  General,  as  well  as  by  many  judicial  decisions,  and  has  been  sustained  and 
followed  by  the  department  in  the  past  with  reference  to  decisions  of  previous  ad- 
ministrations. (File  20971-19:1,  and  authorities  and  cases  therein  cited;  see  also  File 
26283-327:24  and  25,  Sept.  19,  1916)."  File  11130-34,  Sec  Navy,  Sept  20,  1916. 

5.  Dismissal— Bureau  of  Navigation  recommended  that  the  Navy  Department  recon- 

sider the  claim  of  a  certain  naval  officer  that  his  dismissal  from  the  Navy,  April  16, 
1833,  was  the  res  lit  of  mistaken  identity.  Held,  That  all  the  evidence  in  the  case 
hiving  previously  been  fully  considered,  and  it  having  been  decided  that  the  officer's 
naval  service  is  considered  "not  creditable,"  and  no  new  evidence  having  been 
adduced,  the  nutter  is  res  juiicala  as  far  as  the  Navy  Department  is  concerned.  The 
fact  that  it  has  been  decided  by  another  department  of  the  Government  that  his 
record  should  be  deemed  crelitableis  not  considered  sufficient  for  the  Navy  Depart- 
ment to  reopen  the  case.  File  20256-111:2,  Sec.  Navy,  Aug.  9, 1912. 

6.  Exceptlan— The  only  recognized  exception  to  the  rule  of  resjudicata  is  where  the  appli- 

cation for  review  is  based  upon  "new  facts,  a  new  state  of  law,  or  some  extraordinary 
circumstances."  (15  Op.  Atty.  Gen.  315,  316.)  File  11130-6,  J.  A.  G.,  Dec.  28,  1909, 
p.  5.  See  also  ADMINISTRATION,  6. 

7.  General  court-martial  trial  of  a  paymaster's  clerk— Tried  and  dismissed  in 

1911— Department  held  that  the  case  was  resjudicata,  and  can  not  be  reopened  by  the 
executive  branch  of  the  Government.  File  26251-4858:22,  Sec.  Navy,  Apr.  19, 1916. 

8.  Midshipmen— Legality  of  appointment  of  midshipmen  to  Naval  Academy.    File 

5252-32;  28  Op.  Atty.  Gen.  180. 

9.  Nature  of — It  is  well  established  by  a  long  line  of  opinions  rendered  by  eminent  Attor- 

neys General,  as  well  as  by  many  judicial  decisions,  that  the  head  of  an  executive 
department  is  not  empowered  to  disturb  the  decisions  of  his  predecessors  in  cases 
which  have  once  been  finally  determined,  on  the  ground  that  his  predecessor  has 
erroneously  construed  the  law.  Aside  from  the  nonexistence  of  this  power,  it  was 
well  stated  by  the  Attorney  General  in  a  very  early  case  that "  it  is  but  a  decent  degree 
of  respect  for  each  administration  to  entertain  of  its  predecessor,  to  suppose  it  as  well 
qualified  as  itself  to  execute  the  laws  according  to  the  intention  of  their  makers:  and 
not  to  set  an  example  of  review  and  reversal,  which,  in  its  turn,  may  be  brought  to 
bear  upon  itself,  and  thus  keep  the  acts  of  the  Executive  perpetually  unsettled  and 
afloat."  File  11130-28,  Sec.  Navy,  Feb.  5,  1916.  See  also  File  27231-42:3  and  3,  Sec. 
Navy,  Mar.  1,  1913;  26287-2959,  p.  2;  5252-68,  J.  A.  G.,  May  15,  1915;  27231-77,  Sec. 
Navy,  Sept.  19,  1916;  27231-77:1,  J.  A.  G.,  Oct.  6,  1916. 

"The  principle  has  been  so  frequently  declared  that  the  final  decision  of  a  matter 
before  the  head  of  a  department  is  binding  upon  his  successor  in  the  same  depart- 
ment, under  certain  well  denned  exceptions,  that  it  is  now  entitled  to  be  regarded 
as  a  settled  rule  of  administrative  law."  (13  Op.  Atty.  Gen.  457.)  File  26521-169, 
J.  A.  G.,  Nov.  14.  1916,  p.  4. 

The  established  doctrine  of  res  judicata  has  always  been  of  general  application  in 
the  administrative  as  well  as  the  judicial  department  of  our  Government.  File 
26521-169,  J.  A.  G.,  Nov.  14,  1916,  p.  4. 

10.  Same— "It  was  decided  by  this  department  November  1,  1907,  in  the  specific  case 
of  *  *  *;  'that  there  is  no  statute  explicitly  making  citizenship  a  condition 
precedent  to  eligibility  to  appointment  to  the  Naval  Academy  as  a  midshipman,  but 
inasmuch  as  officers  of  the  Navy  must  be  citizens,  a  midshipman  can  not  be  commis- 
sioned an  ensign  if  he  be  an  alien.'  This  question,  which  was  thus  decided  by_  a  pre  vioiis 
administration,  is  now  resjudicata  and,  according  to  legal  principles  which,  in  this 
country,  are  as  old  as  the  Government  itself,  can  not  be  reopened."  File  2<>252-71:2, 
Sec.  Navy,  Aug.  29, 1913.  See  also  File  5252-32,  J.  A.  G.,  Jan.  26, 1910,  p.  3»  20971-19:1, 
J.  A.  G.,  Apr.  14, 1913.  See  also  MIDSHIPMEN,  8. 


RES  JUDICATA.  533 

11.  Naval  service  of  an  officer.    File  20256-111:2. 

12.  Promotion,  falling  in — In  a  case  where  an  officer  failed  professionally  for  promotion. 

Held,  "It  will  be  seen  that  Lieutenant  *  *  *  's  case  has  been  carefully  reviewed 
and  considered  by  the  department  on  several  prior  occasions,  and  that  the  merits 
thereof  have  been  carefully  examined  and  decided  upon  by  the  last  administration. 
The  questions  in  connection  with  Lieutenant  *  *  *  's  examination,  are,  therefore, 
resjvdicata,  and,  according  to  legal  principles  which ,  in  this  country,  are  as  old  as  the 
Government  itself,  can  not  be  reopened."  File  26260-283:14,  Sec.  Navy,  Nov.  24, 1913. 

13.  Reconsideration  of  certain  reports  requested — A  rear  admiral  requested  the  de- 

partment's reconsideration  of  certain  reports  made  against  him  (then  captain)  by 
another  officer  senior  to  him.  The  matter  was  settled  by  a  former  administration. 
Held,  "It  is  thus  seen  that  the  former  administration  clearly  and  categorically  decided 
both  the  legality  and  the  propriety  of  this  matter,  and,  after  mature  consideration, 
decided  to  regard  the  incident  as  closed." 

As  to  the  necessity  of  haying  the  matter  passed  upon  by  the  President  in  order 
to  bring  it  within  the  doctrine  of  res  judicata.  Held,  that  "as  this  is  clearly  a  matter 
within  the  jurisdiction  of  the  Secretary  of  the  Navy,  it  was  unnecessary  that  it  should 
have  been  passed  upon  by  the  President  in  order  to  bring  it  within  the  doctrine  of 
res  judicata."  File  26836-15,  J.  A.  G.,  Nov.  17,  1913. 

14.  Reprimand — An  officer  requested  further  consideration  of  an  action  on  the  depart- 

ment's letter  of  reprimand.  (File  20971-19,  Sec.  Navy,  Aug.  20, 1909.)  Held,  As  the 
case  of  this  officer  was  settled  by  the  decisions  of  the  previous  administration,  it  must 
now  be  considered  as  closed  under  the  settled  legal  doctrine  of  res  judicata;  that  is,  that 
decided  cases  should  not  be  disturbed.  File  20971-19:1,  J.  A.  G.,  Sec.  Navy,  Apr.  14, 
1913.  See  also  APPEALS,  13. 

RESCUE. 

1.  Collision  between  a  naval  vessel  and  merchant  ship — Duty  of  commanding  officer. 
See  COLLISION,  22. 

RESIDENCE. 

1.  Foreign  country — Effect  on  citizenship.    See  CITIZENSHIP,  17,  18. 

2.  Official — A  naval  officer  requested  authority  for  change  of  official  residence  to  Hamilton, 

Canada.  Held,  That  officers  of  the  Navy,  who  are  required  to  be  citizens  of  the  United 
States,  are  also  required,  in  accordance  with  the  customs  of  the  service,  considerations 
of  policy,  and  the  desirability  of  maintaining  amicable  relations  with  other  nations, 
to  have  their  legal  residence  in  the  United  States  or  one  of  its  possessions.  File 
17606-49,  J.  A.  G.,  Dec.  17,  1912.  See  also  File  9736-58,  Aug.  11, 1915. 

3.  Voting— Retired  officers.    See  VOTING,  12. 

RESIGNATIONS. 

1.  Acceptance  necessary — Under  the  law,  as  construed  by  this  department  (File 

26505-21),  the  resignation  of  an  officer  of  the  Navy  is  not  effective  until  it  has  been 
duly  accepted  by  the  President,  who  possesses  the  power  of  compelling  the  officer 
to  remain  in  the  service  by  declining  to  accept  such  resignation."  File  28407-16, 
J.  A.  G.,  July  31, 1915. 

2.  Acceptance  not  obligatory — Although  an  officer  agreed  to  tender  his  resignation  in 

case  his  hearing  grew  worse,  it  is  not  obligatory  that  it  be  accepted  if  tendered.  File 
26253-167,  J.  A.  G.,  Apr.  4,  1911,  p.  6. 

3.  Attempted  withdrawal.    See  RESIGNATIONS,  28. 

4.  Communication  of  acceptance  required.    File  26543-62:1,  J.  A.  G.,  Aug.  28,  1911, 

pp.  1-2. 

5.  Conditional — An  officer  was  recommended  for  trial  by  general  court-martial  because 

of  "over-indulgence  in  intoxicants  while  on  duty  in  Guam"  to  such  an  extent  as  to 
incapacitate  him  from  the  performance  of  duty  for  a  period  of  about  two  weeks.  The 
officer  presented  a  conditional  resignation,  in  which  he  pledged  himself  to  "abstain 
from  the  use  of  all  intoxicants  during  my  future  career  as  an  officer"  in  the  naval 
service,  and  "in  case  of  my  failure  to  faithfully  carry  out  the  above  pledge,  I  have  the 
honor  to  submit  herewith  my  resignation  as  an  officer  "  in  the  naval  service.  In  view 
of  the  difficulty  of  convening  a  general  court-martial  in  Guam  for  his  trial,  the  de- 
partment decided  to  accept  his  resignation,  to  become  effective  in  case  of  his  failure 
to  fulfill  his  pledge  to  abstain  from  the  use  of  all  intoxicants  during  his  future  career 
as  an  officer  in  the  naval  service.  File  26251-1989,  Sec.  Navy,  May  14,  1909. 


534  RESIGNATIONS. 

6.  Consent  of  parties  to  resignation  can  not  be  recalled— Where  an  officer  presents 

his  resignation  which  is  accepted  by  the  Secretary  of  the  Navy:  Held,  "The  consent 
of  the  parties  to  the  act  of  resignation  could  not  be  recalled  except  by  the  reappoint- 
ment  of  the  same  person"  in  conformity  with  law.  (Comp.  Dec.  Nov.  25,  1910,  file 
26254-578.)  See  in  this  connection  Mimmack  v.  U.  S.,  97  U.  S.,  436-437;  U.  S.  v.  Corson, 
114  U.S.,  619. 

7.  Courts-martial — Jurisdiction  of  naval   courts-martial   over  resigned   officers.    See 

JURISDICTION.  113. 

8.  Declined— Resignation  may  be  declined  by  appointing  power.    See  RESIGNATIONS, 

10-19. 

9.  Diplomatic  service — Acceptance  of  an  appointment  in  the  diplomatic  or  consular 

service  considered  as  a  resignation  from  naval  service.  See  DIPLOMATIC  OFFICERS,  1; 
RETIRED  OFFICERS,  26. 

10.  Future  date — "  A  resignation  to  take  effect  at  a  future  date  may,  with  the  consent  of  the 

appointing  power,  provided  no  new  rights  have  intervened,  be  withdrawn  before  the 
time  when  the  resignation  was  to  take  effect,  and  the  officer  will  continue  to  be  an 
officer  dejure  thereafter."  (1  Comp.  Dec.,  68.)  See  Comp.  Dec.,  Nov.  25,  1910,  File 
26254-578. 

11.  Good  of  service — Resignations  have  been  accepted  by  the  President  for  the  good  of  the 

service.  G.  C.  M.  Rec.  14462,  23453,  26375;  File  26251-10701,  Sec.  Navy,  Aug.  26, 1915. 
See  also  COMMISSIONS,  21;  PARDONS,  44. 

12.  "Immediate  and  unconditional " — "A  resignation  in  terms  'immediate  and  un- 

conditional' means  an  entire  severance  of  an  officer's  connection  with  the  army." 
(Turnley  v.  U.  S.,24  Ct.  Cls.,  318.)  Comp.  Dec.  Nov.  25, 1910,  File  26254-578. 

13.  Insanity  of  an  officer.    File  27231-51:1,  J.  A.  G.,  Feb.  24,  1913. 

14.  Letter  of  resignation — "A  letter  of  an  officer  requesting  permission  to  resign  which 

was  regarded  by  both  the  Secretary  of  the  Navy  and  the  officer  as  a  tender  of  resig- 
nation, and  its  acceptance  by  the  Secretary  as  a  resignation,  operates  to  remove  the 
officer  from  the  service."  (5  Comp.  Dec.  419.)  Comp.  Dec.  Nov.  25,  1910,  File 
26254-578. 

15.  Midshipmen— Physically  disqualified.    See  MIDSHIPMEN,  22. 

16.  Not  necessary  to  accept— In  American  and  English  Encyclopedia  of  Law  (vol.  23,  p. 

422)  it  is  stated:  "In  England  it  is  the  invariable  rule  that  without  the  consent  of 
competent  authority  no  officer  can  divest  himself  of  the  performance  of  the  duties  of 
the  office  to  which  ne  was  elected  or  appointed ,  and  in  the  United  States  this  doctrine 
has  been  adopted  in  some  jurisdictions,  but  in  other  jurisdictions  the  common  law 
on  this  subject  has  been  held  inapplicable  to  the  incumbents  of  office  under  the 
American  form  of  government."  The  Supreme  Court  of  the  United  States  in  Edwards 
v.  U.  S.  decided  in  1880  (103  U.  S.,  471),  that  the  common-law  rule,  "namely,  that  a 
resignation  must  be  accepted  before  it  can  be  regarded  as  complete,"  must  prevail  in 
this  country,  unless  it  can  be  shown  that  such  rule  has  been  plainly  abrogated  by 
legislation;  and,  referring  to  a  statute  of  Michigan,  which  it  was  contended  had  the 
effect  of  changing  the  common-law  rule,  the  Supreme  Court  further  said:  "To  hold  it 
[the  common-law  rule]  to  be  abrogated  would  enable  every  officeholder  to  throw  off 
his  official  character  at  will,  and  leave  the  community  unprotected.  We  do  not  think 
that  this  was  the  intent  of  the  law." 

The  United  States  Supreme  Court  also  quoted  with  approval  Hoke  v.  Henderson 
(4  Dev.  L.  1)  in  which  Mr.  Justice  Ruffin,  speaking  for  the  Supreme  Court  of  North 
Carolina  said: 

"  An  officer  may  certainly  resign;  but  without  acceptance  his  resignation  is  nothing, 
and  he  remains  in  office.  It  is  not  true  that  an  office  is  held  at  the  will  of  either  party. 
It  is  held  at  the  will  of  both.  Generally  resignations  are  accepted;  and  that  has  been 
so  much  a  matter  of  course  with  respect  to  lucrative  offices,  as  to  have  grown  into  a 
common  notion  that  to  resign  is  a  matter  of  right.  But  it  is  otherwise.  The  public 
has  a  right  to  the  services  of  all  the  citizens,  and  may  demand  them  in  all  civil  depart- 
ments os  well  as  in  the  military.  Hence  there  are  on  our  statute  book  several  acts  to 
compel  men  to  serve  in  offices.  Every  man  is  obliged,  upon  a  general  principle,  after 
entering  upon  his  office,  to  discharge  the  duties  of  it  while  he  continues  in  office,  and 
he  can  not  lay  it  down  until  the  public,  or  those  to  whom  the  authority  is  confided, 
are  satisfied  that  the  office  is  in  a  proper  state  to  be  left,  and  the  officer  discharged." 


RESIGNATIONS.  535 

The  case  of  U.  8.  v.  Wright  (1  McLean,  509)  was  cited  in  the  Edwards  case  as  indi- 
cating a  contrary  doctrine,  but  was  not  concurred  in  by  the  Supreme  Court.  How- 
ever, even  in  the  Wright  case,  the  doctrine  laid  down  was  merely  "that  a  civil  officer 
has  a  right  to  resign  his  office  at  pleasure  and  it  is  not  in  the  power  of  the  Executive  to 
compel  himtoremain  in  office. "  It  would  hardly  be  contended  that  such  a  doctrine, 
even  had  it  been  sustained  by  the  Supreme  Court,  would  apply  to  officers  in  the 
military  or  naval  service,  for  so  to  hold  would  threaten  not  only  the  efficiency  and 
discipline  of  these  branches  of  the  public  service,  but  would  endanger  their  very 
existence;  as,  carried  to  its  ultimate  conclusion,  it  would  enable  military  and  naval 
officers  to  relieve  themselves  of  the  responsibilities  of  command  at  pleasure ,  and  even 
in  the  face  of  the  enemy.  That  this  was  not  intended  by  Congress  is  made  evident 
by  article  10  of  the  Articles  for  the  Government  of  the  Navy  (sec.  1624,  R.  S.)  which 
provides  that 

"  Any  commissioned  officer  of  the  Navy  or  Marine  Corps  who,  bavins:  tendered  hi» 
resignation,  quits  his  post  or  proper  duties  without,  leave,  and  with  intent  to  remain 
permanently  absent  therefrom,  prior  to  due  notice  of  the  acceptance  of  such  resig- 
nation, shall  be  deemed  and  punished  as  a  deserter." 

Furthermore,  the  commissions  issued  to  officers  of  the  Navy  expressly  provide: 
"This  commission  to  continue  in  force  during  the  pleasure  of  the  President  of  the  United 
States  for  the  time  being."  When  an  officer  of  the  Navy  accepts  his  commission  and 
executes  the  oath  of  office  he  does  so  with  full  knowledge  of  this  clause  contained  in 
the  commission,  and  of  the  law  above  quoted  which  makes  him  guilty  of  desertion  if 
he  quits  his  post  after  resigning,  prior  to  the  acceptance  of  his  resignation. 

In  view  of  the  foregoing:  Held,  That  the  resignation  of  an  officer  of  the  Navy  is  not 
effective  until  it  has  been  duly  accepted  by  the  President,  who  possesses  the  power 
of  compelling  the  officer  to  remain  in  the  service  by  declining  to  accept  such  resig- 
nation. File  26505-21,  J.  A.  G.,Mar.  17, 1913.  See  also  File  26262-2146;  Mimmack  v. 
U.  S.  (10  Ct.  Cls.  600),  concurring  opinion  of  Nott,  J.;  Barger  v.  U.  S.  (6  Ct.  Cls.  38, 39); 
Robertson  v.  Baldwin  (165  U.  S.,  275)  as  bearing  on  involuntary  servitude;  Wales  v. 
Whitney  (114  U.  S.,  564)  as  bearing  upon  the  right  of  a  naval  officer  to  a  writ  of  habeas 
corpus.  The  above  opinion  of  the  Judge  Advocate  General  was  accepted  by  the 
Secretary  of  the  Navy  "  as  embodying  the  law  on  the  subject."  File  26505-21,  Sec. 
Navy,  June  28, 1915.  See  also  File  265)5-30:  2.  Sec.  Navy,  Jan.  3,  1917. 

17.  President  may  decline  to  accept— The  President  possesses  the  power  of  compelling 

an  officer  to  remain  in  the  naval  service  by  declining  to  accept  his  resignation.  See 
RESIGNATIONS,  16, 18-19. 

18.  Same—"  The  department  has  the  right,  and  has  frequently  exercised  it,  of  refusing  to 

accept  an  officer's  resignation.  "File  26251-6149:4,  June  24,  1912,  p.  4.  See  also 
RESIGNATIONS,  16, 17, 19. 

19.  Same— The  law  is  well  settled  that  the  President  possesses  the  power  of  compelling  an 

officer  to  remain  in  the  naval  service  by  declining  to  accept  liis  resignation. '  (See  File- 
26505-21;  26262-2146.)  As  this  question  has  long  since  been  judicially  determined, 
it  would  seem  unnecessary  in  any  case  to  request  the  opinion  of  the  Attorney  General 
thereupon  inasmuch  as  the  latter  has  himself  repeatedly  held  that  he  is  bound  by  the 
decisions  of  the  United  States  courts  of  competent  jurisdiction.  Furthermore,  the 
Attorney  General  has  heretofore  expressly  held  that  "  the  resignation  of  a  military 
officer  does  not  take  effect  until  accepted  by  the  proper  superior  authority."  And  the 
Court  of  Claims,  at  an  early  date  in  a  case  where  the  acceptance  of  an  officer's  resigna- 
tion was  not  communicated  to  him  for  more  than  a  year  after  it  was  tendered,  the 
officer  in  the  meantime  being  required  to  perform  duty,  decided:  "The  claimant 
had  no  alternative  but  to  do  the  duty  to  which  he  was  commanded  by  his  colonel. 
He  could  not  compel  an  acceptance  of  his  resignation,  and  until  he  was  informed  that  it 
had  been  accepted  he  was  as  much  a  soldier  as  ever,  and  liable  to  punishment  as  a  de- 
serter had  he  abandoned  his  duty."  File  26505-28,  J.  A.  G.,  Nov.  17, 1915;  C.  M.  O. 
42, 1915, 12-13. 

20.  Refusal  to  accept.    See  RESIGNATIONS,  16-19. 

21.  Restoration  ot  resigned  officers—  An  officer  who  has  resigned  can  not  be  restored  to 

the  naval  service  except  by  reappointment.  (25  Op.  Atty.  Gen.  579;  20  A.  and  E. 
Enc.636;  Mimmack  v.  U.  S.,  97  U.  S.  426.)  File  5252-73,  J.  A.  G.,  Oct.  1,  1915. 

In  Mimmack  v.  United  States  (97  U.  S.  426)  the  officer's  resignation  was  accepted 
by  the  President,  who,  later,  revoked  the  acceptance.  The  Supreme  Court  decided 
"that  the  office  became  vacant  when  the  incumbent  was  notified  that  his  resignation 
had  been  accepted;"  and  "that  the  subsequent  action  of  the  President  did  not  re- 
store the  petitioner  to  the  military  service."  File  5252-73,  J.  A.  G.,  Oct.  1, 1915. 


536  RESIGNATIONS. 

22.  Same — A  man  who  is  once  legally  out  of  the  service  assumes  a  civilian  status  and  is 

subject  in  case  of  reappointment  to  the  same  rules  as  govern  other  civilians.  File 
28554-199:1,  J.  A.  G.,Nov.  2,  1915. 

"  In  all  cases  the  principle  is  the  same.  By  which  of  several  legal  methods  an  officer 
goes  out  of  the  service  by  the  act  of  the  President,  whether  by  his  approval  of  a  sentence 
by  a  court-martial,  his  acceptance  of  a  voluntary  resignation,  or  his  approval  of  the 
finding  of  a  retiring  board,  makes  no  particular  difference.  In  each  case  the  question 
is  whether  he  is  entirely  and  legally  out;  if  so  the  Constitution  takes  hold  of  the  case, 
and,  regardless  of  how  he  got  out,  directs  the  only  mode  of  return.  *  *  * 

"We  go  no  farther  than  to  hold  that  restoration  is  not  accomplished  through  revo- 
cation. This  is  the  plain  rule  prescribed  in  the  Constitution,  decided  by  the  Su- 
preme Court,  declared  by  Congress,  advised  by  the  Attorney  General,  and  recognized 
by  the  Judge  Advocates  General  of  the  Army.  It  must  be  satisfactory  to  the  Presi- 
dent, because  it  relieves  him  from  private  importunity  and  possible  imposition. 
It  is  satisfactory  to  the  officers  remaining  in  the  service,  because  it  relieves  them  from 
the  constant  apprehension  and  danger  of  being  jostled  out  of  their  proper  places  by 
irregular  or  illegal  intrusion."  (Vanderslice  v .  U.  S.,  19  Ct.  Cls.  484).  File  5252-73, 
J.  A.  G.,  Oct.  1,  1915. 

"  Where  the  connection  of  an  officer  with  the  service  has  been  severed  by  his  resig- 
nation, discharge,  or  dismissal,  he  can  be  reinstated  only  by  a  new  appointment. 
*  *  *  ipjje  mere  revocation  of  the  acceptance  of  his  resignation  or  of  the  order 
terminating  his  connection  with  the  service  can  not  have  this  effect."  (A.  and  E. 
Ency.  Law,  Vol.  20,  pp.  636,  et  seq.).  File  5252-73,  J.  A.  G.,  Oct.  1, 1915. 

23.  Revocation  of  acceptance.    See  RESIGNATTONS,  21,  22. 

24.  Secretary  of  the  Navy — Is  the  proper  administrative  officer  to  accept  the  resignation 

of  a  naval  officer  for  the  President.    See  ADMINISTRATION,  8;  RESIGNATIONS,  28. 

25.  Takes  effect — Resignations  do  not  take  effect  until  accepted  by  the  proper  superior 

authority.    See  RESIGNATIONS,  16-19. 

26.  Unqualified  resignation— "If  the  resignation  is  unqualified  it  takes  effect  imme- 

diately upon  its  unqualified  acceptance,  or  at  least  when  the  officer  receive  notice 
of  the  acceptance."  (1  Comp.  Dec.  70.)  Comp.  Dec.,  Nov.  25, 1910,  File  26254-578. 

27.  Withdrawal  after  acceptance— "It  follows,  then,  that  the  attempted  consent  of  the 

Secretary  of  the  Navy  to  the  withdrawal  of  the  cadet's  resignation  after  acceptance 
thereof  had  no  legal  effect  whatever.  Comp.  Dec.  Nov.  25, 1910,  File  26254-578. 

28.  Withdrawal,  attempted — A  naval  officer,  on  duty  in  Samoa,  under  serious  charges, 

formed  the  intention  of  relinquishing  his  office  in  the  Navy,  and  manifested  this  in- 
tention by  placing  his  resignation  in  the  hands  of  his  commanding  officer,  who  was 
the  proper  officer  to  receive  same  in  accordance  with  explicit  provisions  of  the  Navy 
Regulations  which  have  been  judicially  upheld.  Said  resignation  was  to  take  effect 
on  a  certain  date,  approximately  seven  weeks  after  it  was  presented  to  the  command- 
ing officer.  The  commanding  officer  cabled  the  officer's  intention  to  resign  to  the 
Secretary  of  the  Navy,  recommending  that  it  be  accepted,  and  at  the  same  time 
further  recommending  that  "if  department  is  willing  to  accept  resignation"  the 
officer  be  ordered  home  by  merchant  steamer,  which  was  accordingly  done  by  cable- 
gram. The  Secretary  of  the  Navy  expressly  approved  the  recommendation  of  the 
Chief  of  the  Bureau  of  Navigation  that  the  resignation  be  immediately  accepted  for 
the  good  of  the  service,  to  take  effect  upon  his  arrival  in  the  United  States.  Thereafter 
while  en  route  to  the  United  States,  this  officer  cabled  the  Secretary  of  the  Navy, 


3cer  that  his  resignation  was  ap- 
proved, although  even  without  such  notification  the  resignation  was  placed  beyond 
his  power  to  recall.  Accordingly  it  was  advised  (a)  that  this  officer's  attempt  to 
withdraw  his  resignation  was  ineffectual,  said  resignation  theretofore  having  been 
accepted,  and  the  accepting  authority  not  having  consented  to  its  withdrawal;  and 
(6)  that  the  officer  be  notified  to  this  effect.  File  26262-2146:4,  J.  A.  G.,  Oct.  30, 1915; 
C.  M.  O.  42,  1915,  13. 

RESISTING  AND  STRIKING  THE  POLICE  AUTHORITIES   OF  THE   SHIP 
WHILE  IN  THE  EXECUTION  OF  THEIR  DUTIES. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  21,  1887. 


RESTRICTION.  537 

RESISTING  ARREST.    See  also  ARREST. 

1.  Civil  authorities — Resistance  to  arrest  by  a  naval  officer.    See  RESISTING  ARREST,  5. 

2.  Coal  heaver— Charged  with.    C.  M.  O.  36.  1886. 

3.  Fireman,  first  class— Charged  with.    C.  M.  O.  23,  1910,  5. 

4.  Officer— Charged  with.    C.  M.  O.  59,  1904,  2;  1, 1917. 

5.  Same— In  administering  a  public  reprimand  adjudged  as  part  of  a  sentence  by  a  general 

court-martial,  the  Secretary  of  the  Navy  stated  in  part:  "You  are  especially  ad- 
monished that  one  of  the  first  duties  of  a  commissioned  officer  is  to  pay  due  respect  at  all 
times,  and  under  all  circumstances,  to  constituted  authority,  civil  as  well  as  military . 
Resistance  to  arrest  by  an  officer  of  the  law  is  a  grave  matter  under  any  circumstances, 
and  is  particularly  inexcusable  on  the  part  of  officers  of  the  military  and  naval  service 
who  should  recognize  in  their  conduct  the  propriety  of  yielding  unhesitating  obedience 
to  law,  regulation,  and  order  and  protesting,  if  necessary,  afterwards."  C.  M.  O. 
59, 1904,  2. 

6.  Landsman— Charged  with.    C.  M.  O.  161,  1902. 

RESISTING  ARREST  AND  ASSAULTING  A  CHIEF  PETTY  OFFICER. 

1.  Charge — Criticized  by  department.    See  CHARGES  AND  SPECIFICATIONS,  53. 

RESPECT. 

1.  Essential— Respectfulness,  in  language  and  attitude  toward  superiors,  is  essential  to 

discipline  and  efficiency.    C.  M.  O.  15,  1914.    SeealsoC.  M.  O.  38,  1914,  2. 

2.  Officers— Should  cherish  a  respect  for  authority,  law,  regulations,  and  gentlemanly 

decorum.    See  OFFICERS,  102. 

RESPONSIBILITY  FOR  CRIME. 

1.  "Right  and  wrong"  test  should  be  applied— The  rule  for  determining  criminal 
responsibility  in  law  is  the  capacity  of  the  accused  to  distinguish  between  right  and 
wrong  with  reference  to  the  particular  act.  C.  M.  0. 24, 1914, 8;  51, 1914,  4.  See  also 
INSANITY,  35, 36. 

RESPONSIBILITY  OF  COMMANDING  OFFICERS.    See  COLLISION,  6,  17,  19,  22; 

COMMANDING  OFFICERS,  35-38. 

RESTITUTION.    See  DEBTS,  23. 

RESTORATION   OF    CITIZEN    RIGHTS    OF    DESERTERS.    See   DESERTERS; 
DESERTION. 

RESTORATION  OF  DISMISSED  OFFICERS.    See  DISMISSAL,  23;  LEGISLATION,  5. 

RESTORATION  OF  NUMBERS  LOST  BY  SUSPENSION  FROM  PROMOTION. 

See  PROMOTION,  103, 155, 156. 

RESTORATION  OF  RESIGNED  OFFICERS.    See  RESIGNATIONS,  21,  22. 

RESTORATION  TO  DUTY. 

1.  Deserter— Effect  of.    See  DESERTERS,  24. 

2.  Fraudulent  enlistment— Ratification  of  a  fraudulent  by  restoration  to  duty.    See 

FRAUDULENT  ENLISTMENT,  75. 

3.  Officer — Court-martial  order  in  proper  cases  should  so  state.    See  ARREST,  9,  27. 

4.  Pardon— Restoration  to  duty  by  the  Secretary  of  the  Navy  is  never  a  pardon.    See 

PARDONS,  47. 

RESTORATION  TO  DUTY  OF  DESERTERS. 

1.  Citizenship — Effect  on.    See  DESERTERS,  24;  JEOPARDY,  FORMER,  32. 

RESTRICTION. 

1.  Close  confinement— Where  restriction  rather  than  close  confinement  by  a  general 

court-martial.    See  CONFINEMENT,  20. 

2.  Definition.    Sec  CONFINEMENT,  20. 

3.  Jeopardy,  former.    See  JEOPARDY,  FORMER,  33. 

4.  Secretary  of  the  Navy  mitigated  confinement  to  restriction — Department  miti- 

gated a  sentence  involving  confinement  at  hard  labor  to  "restriction  to  the  limits  of 
the  barracks  or  ship  to  which  he  may  be  attached— at  present  the  marine  barracks, 
navy  yard,  League  Island,  Pa., "etc.  C.  M.  0. 167, 1902, 3.  Seealso  CONFINEMENT,  8. 

5.  Sentence— "To  be  restricted  to  the  limits  of  the  post,  station,  or  ship,"ete.    SeeC.  M.  O. 

95,  1893,  3;  12,  1899,  3;  236,  1902;  167,  1902,  3;  13,  1910;  7,  1912;  8,  1912;  24,  1913;  40, 
1913;  21, 1914;  46, 1915;  21, 1916;  28, 1916;  G.  C.  M.  Rec.  29308,  p.  3. 


538  KESTRICTION. 

6.  Summary  courts-martial — A  fireman  first  class,  United  States  Navy,  was  tried  by 

summary  court-martial  and  sentenced  among  other  things  "to  be  restricted  to  the 
limits  of  the  ship  for  a  period  of  30  days." 

In  view  of  the  fact  that  "restriction  to  the  limits  of  the  ship"  is  not  one  of  the  punish- 
ments which  a  summary  court-martial  is  authorized  to  adjudge,  that  part  of  the  sen- 
tence involving  restriction  was  set  aside  by  the  department.  (See  A.  G.  N.  30;  C.  M. 
O.  21,  1910,  p.  17;  1,  1911,  p.  3;  33,  1914,  pp.  4-6;  Index-Digest,  1914,  p.  38.)  File 
26287-3315,  Sec.  Navy,  Feb.  15,  1916;  C.  M.  O.  5,  1916,  6. 

7.  Same— Convening  authority  of  a  summary  court-martial  may  mitigate  "confinement" 

to  "restriction."    See  CONFINEMENT,  8. 

RETENTION    IN    SERVICE    AFTER  EXPIRATION    OF  ENLISTMENT.     See 

ENLISTMENTS,  8-11. 

RETIRED  ENLISTED  MEN. 

1.  Active  duty,  not  subject  to— The  Bureau  of  Navigation  requested  opinion  as  to 

whether  or  not  retired  enlisted  men  of  the  Navy  could  be  ordered  to  duty  at  shore 
stations  in  case  of  an  emergency.  The  following  is  the  reply  of  the  Judge  Advocate 
General:  "In  the  department's  letter  to  the  bureau,  August  27,  1909  (File  7657-57)  it 
was  said  'An  enlisted  man  in  the  Navy,  when  placed  on  the  retired  list,  is  no  longer 
subject  to  orders  for  active  duty.'  "  File  7657-186,  J.  A.  G.,  May  20,  1913.  See  also 
File  10438-03,  J.  A.  G.;  7657-123,  Sec.  Navy;  7657-57,  Sec.  Navy,  Aug.  27,  1909; 
RETIRED  ENLISTED  MEN,  9.  But  see  Act  of  March  3,  1915  (38  Stat.  941);  Act  of 
Aug.  29,  1916,  modifying  this. 

2.  Alderman  (councilman)  of  Annapolis,  Md. — There  is  no  federal  law  to  prevent  a 

chief  yeoman,  retired,  from  holding  the  office  of  alderman,  to  which  office  he  had  been 
elected.  File  7657-150,  J.  A.  G.,  May  9, 1912;  27231-3,  J.  A.  G.,  Nov.  1, 1909.  NOTE.— 
It  was  reported  that  this  retired  enlisted  man  resigned  as  councilman  owing  to  a 
doubt  as  to  his  qualifications  under  State  law. 

3.  Civil  positions — The  employment  of  retired  enlisted  men  of  the  Navy  in  civil  positions 

under  the  United  States  is  not  Contrary  to  any  Federal  law  or  Navy  regulation.  File 
7657-123,  J.  A.  G.,  Dec.  29,  1911;  File  7057-57,  Sec.  Navy,  Aug.  27,  1909. 

4.  Court-martial— Retired  enlisted  men  tried  by.    See  Army  Digest,  1912,  p.  1001. 

5.  Deposits — It  is  the  practice  of  the  department,  when  enlisted  men  are  transferred  from 

the  active  list  to  the  retired  list  finally,  to  pay  them  as  enlisted  men  and  to  give  them 
their  deposits  with  interest.  File  28550-22,  Sec.  Navy,  Nov.  24,  1916. 

6.  Instructors— At  naval  or  military  schools.    See  File  7657-361,  J.  A.  G.,  May  6,  1916. 

See  also  RETIRED  ENLISTED  MEN,  10,  12. 

7.  Naval  Instructions,  1913, 1-4893— An  enlisted  man  was  retired  before  expiration 

of  enlistment  and  had  a  certain  amount  of  his  pay  "deducted  "  because  of  the  oper- 
ation of  1-4893  upon  court-martial  sentences  involving  loss  of  pay:  Held,  Since,  if  the 
man's  enlistment  had  expired  on  the  date  of  his  retirement,  he  would  be  entitled  to 
only  an  "ordinary  discharge,"  his  accounts  should  be  checked  one-half  the  amount 
of  pay  "deducted r'  by  reason  of  sentence.  (See  C.  M.  0. 12, 1915,  p.  12;  File  26806-131: 
32.)  File  27210-302,  J.  A.  G.,  Oct.  25,  1915;  Sec.  Navy,  Oct.  25,  1915;  C.  M.  O.  35, 
1915, 10. 

8.  Naval  or  military  schools.   See  RETIRED  ENLISTED  MEN,  6,  10,  12. 

9.  Not  a  part  of  Navy — An  enlisted  man  of  the  Navy,  when  placed  on  the  retired  list,  is 

no  longer  subject  to  orders  for  active  duty;  his  connection  with  the  service  is  severed; 
and  he  can  not  thereafter  be  said  to  be  a  component  part  of  the  Navy.  (Murphy  v. 
U.  S.,  38  Ct.  Cls.,  511,  521.)  File  7657-57,  Sec.  Navy,  Aug.  27,  1909,  quoted  in  File 


G.,  May  6, 1916.    See  also  RETIRED  ENLISTED  MEN,  6, 12. 

11.  Reenlistment— The  mere  fact  that  an  enlisted  man  of  the  Marine  Corps  has  been 

placed  on  the  retired  list,  does  not  bar  him  from  reenlistment,  provided  ne  is  physi- 
cally and  otherwise  qualified .    File  10438-03. 

12.  Schools,  naval  and  military— Retired  enlisted  men  as  instructors  at.    See  File 

7657-361,  J.  A.  G.,  May  6, 1916.    See  also  RETIRED  ENLISTEP  MEN.  6,  10. 

13.  Transportation— Retired  enlisted  men  to  their  homes.    File  7657-389,  Sec.  Navy, 

Sept.  25.  1916. 

14.  Same — where  the  home  is  "beyond  the  continental  limits  of  the  United  States." 

File  7657-389,  Sec.  Navy,  Sept.  25,  1916. 


RETIRED   OFFICERS.  539 

RETIRED  OFFICERS. 

1.  Active  duty— The  act  of  August  22,  1912  (37  Stat.  329),  provides  that  "hereafter  any 

naval  officer  on  the  retired  list  may,  with  his  consent,  in  the  discretion  of  the  Secretary 
of  the  Navy,  be  ordered  to  such  duty  as  he  may  be  able  to  perform  at  sea  or  on  shore," 
etc.  Held,  To  apply  to  Marine  officers.  File  26280-61. 

2.  Same— Marine  officers  ordered  to  active  duty  after  June  6,  1912.    See  RETIRED  OFFI- 

CERS, 45. 

3.  Boatswain,  retired— Tried  by  general  court-martial.    G.  C.  M.  Rec.  32614;  C.  M.  O. 

34, 1916. 

4.  Carpenter,  retired— Tried  by  general  court-martial.    C.  M.  O.  48,  1907. 

5.  Chief  boatswain,  retired— Tried  by  general  court-martial.    C.  M.  O.  15,  1915. 

6.  Chief  ol  Bureau — Retired  officer  not  eligible  for  appointment  as  chief  of  bureau. 

File  21,  Nov.  25,  1902;  15315-5.    See  also  BUREAU  CHIEFS,  14. 

7.  Citizenship— Of  retired  officer  living  abroad  indefinitely.    See  CITIZENSHIP,  17,  18; 

RETIRED  OFFICERS,  32. 

8.  Civil  office  or  employment.    See  RETIRED  OFFICERS,  28,  31. 

9.  Civil  service — An  officer  on  the  retired  list  may  take  the  civil-service  examination,  and 

his  status  on  the  retired  list  does  not  preclude  him  from  taking  anjexamination  or 
accepting  a  clerical  position  in  the  customhouse,  assuming  the  compensation  of  such 
position  to  be  less  than  $2,500  per  annum,  subject  to  possible  recall  to  active  duty. 
File  4901-04;  5650-00;  4642-63. 

10.  Civil  War  service — Retired  officer  advanced  for  Civil  War  service.   See  CIVIL  WAR 

SERVICE,  5,  6. 

11.  Commandant  of  the  Marine  Corps — See  MARINE  CORPS,  47. 

12.  Commander  in  chief  of  a  fleel>— Retaining  an  officer  as  commander  in  chief  of  a  fleet 

after  he  has  been  placed  on  the  retired  list  because  of  age.  File  27231-75,  J.  A.  G., 
July  24, 1916. 

13.  Commercial  attache.    See  File  27231-67,  J.  A.  G.,  Aug.  20, 1915;  Sec.  Navy,  Aug.  23, 

1915.    See  also  RETIRED  OFFICERS,  26,  34. 

14.  Commissions.    See  COMMISSIONS,  17,  18,  31. 

15.  Commissions  of  marine  officers  on  retired  list — Change  of  date  requested.    See 

COMMISSIONS,  17,  18. 

16.  Compensation — Whether  or  not  the  compensation  of  a  retired  officer  is  "pay," 

"pension,"  or  "bounty." 

That  Congress  can  increase  or  diminish  the  compensation  of  officers  in  Government 
service  is  well  recognized,  and  the  same  is  true  of  pensions. 

A  retired  officer  is  entitled  to  receive  his  pay,  whatever  may  be  its  character,  free 
from  any  deductions  that  are  not  plainly  provided  for  by  law.  But  he  may  relinquish 
all  or  part  by  his  express  assent. 

The  Comptroller  of  the  Treasury  has  held  that  retired  pay  is  not  compensation,  but 
a  pension.  File  9736-18,  J.  A.  G.,  June  25,  1910,  p.  15.  See  also  Collins  v.  U.  S.,  15 
Ct.  Cls.  22,  40;  Fletcher  v.  U.  S.,  26  Ct.  Cls.  541,  563. 

17.  Comptroller's  Jurisdiction— The  act  of  June  29,  1906  (34  Stat.  554),  provided  that 

retired  officers  of  the  Navy  under  certain  conditions  should  be  entitled  to  the  rank 
and  retired  pay  of  the  next  higher  grade.  The  question  of  increased  pay  under  this 
law  was  a  matter  under  the  jurisdiction  of  the  Comptroller  of  the  Treasury,  while  the 
question  of  increased  rank  was  a  matter  under  the  jurisdiction  of  the  Secretary  of  the 
Navy.  File  26254^1451:  11,  J.  A.  G.,  Apr.  12,  1915,  p.  17. 

18.  Congress — An  opinion  was  requested  upon  the  following  question: 

"  Is  it  within  the  law  and  the  Regulations  of  the  Navy ,  f  or  a  rear  admiral ,  retired . 
to  go  to  Congress,  and  retain  his  commission  in  the  Navy,  provided  he  declines  all 
compensation,  or  pay  for  his  services  in  CongresSj  and  will  resign  his  seat  in  Congress 
whenever  the  Navy  Eepartment  shall  require  his  naval  services."  Held,  That  the 
question  presented  is  one  not  under  the  cognizance  of  the  Judge  Advocate  General 
and  upon  which  he  is  not  authorized  to  render  an  official  opinion. 

The  following  remarks,  made  by  the  Attorney  General  in  an  opinion  rendered 
March  26, 1897  (21  Op.  Atty .  Gen.,  510),  to  the  Secretary  of  War,  are  pertinent  in  this 
connection: 

"It  may  be,  and  doubtless  is,  a  subject  of  reasonable  interest,  and  perhaps  of  great 
anxiety,  to  officers  of  the  United  States  Army  on  the  retired  list  to  ascertain  'if  an 
officer  on  the  retired  list  of  the  Army  can  accept  a  diplomatic  or  consular  appointment 
and  still  hold  his  position  on  the  retired  list  with  rank  and  pay.' 


540  RETIRED   OFFICERS. 

"But,  manifestly,  the  solution  of  that  question  by  any  retired  officer  of  the  Army, 
and  the  course  of  conduct  which  he  may  adopt  in  pursuance  of  such  solution,  is  a 
matter  of  his  private  concern  only,  and  not  a  subject  with  which  the  United  States 
can  be  concerned  until  some  action  has  been  taken  by  such  officer.  *  *  * 

"If  Lieutenant  *  *  *,  or  any  other  retired  officer,  should  be  called  upon  to 
determine  such  question  in  his  own  case,  the  obvious  course  for  him  to  pursue  is  that 
which  is  open  to  every  person  inclined  to  pursue  a  course  as  to  the  legal  consequences 
of  which  he  is  in  ignorance  or  doubt.  He  should  seek  the  advice  of  private  counsel, 
learned  in  the  law,  and  obtain  their  opinion,  for  which,  if  given  without  due  care, 
such  counsel  can  be  held  to  a  personal  accountability. 

"The  whole  matter,  as  it  seems  to  me,  is  one  strictly  of  private  concern  and  in  no 
sense  of  public  interest."  (21  Op.  Atty.  Gen.  510.) 

"Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  Members."  (Constitution.  Art.  I, sec.  5,cl.  1.) 

»*  *  *  No  person  who  holds  an  office  the  salary  or  annual  compensation  attached 
to  which  amounts  to  the  sum  of  $2,500  shall  be  appointed  to  or  hold  any  other  office 
to  which  compensation  is  attached  unless  specially  heretofore  or  hereafter  specially 
authorized  thereto  by  law;  but  this  shall  not  apply  to  retired  officers  of  the  Army  or 
Navy  whenever  they  may  be  elected  to  public  office  or  whenever  the  President  shall 
appoint  them  to  office  by  and  with  the  advice  and  consent  of  the  Senate."  (Act, 
July  31 , 1894, 28  Stat.  205). 

"That  unless  otherwise  specially  authorized  by  law  no  money  appropriated  by 
this  or  any  other  Act  shall  be  available  for  payment  to  any  person  receiving  more  than 
one  salary  when  the  combined  amount  of  said  salaries  exceeds  the  sum  of  $2,000  per 


shall  appoint  the 

officers  and  enlisted  men  of  the  Organized  Militia  and  Naval  Militia  in  the  several 
States,  Territories,  and  the  District  of  Columbia."  (Act  May  10, 1916,  sec.  6  (39  Stat. 
120).  See  also  Act  of  Aug.  29,  1916  (39  Stat.  582).) 

Attention  invited  to  the  authorities  collected  in  volume  2  of  the  American  and 
English  Annotated  Cases  (pp .  378-382) ,  with  reference  to  the  holding  of  incompatible 
offices  by  one  person,  and  what  constitutes  incompatibility. 

Maj.  Gen.  Sickles,  while  a  retired  officer  of  the  Army,  held  a  seat  in  Congress,  and 
under  date  of  December  5, 1893,  his  status  was  the  subject  of  an  opinion  by  the  At- 
torney General,  published  in  volume  20  of  the  Attorney  General's  opinions,  at  page 
686.  It  was  there  held  by  the  Attorney  General  that  "the  question  whether  Con- 
gressman Sickles  can  receive  pay  as  a  retired  Army  officer  is  ono  of  grave  doubt ,  which 
only  a  determination  of  the  Supreme  Court  can  satisfactorily  settle,"  this  doubt  be- 
ing stated  by  the  Attorney  General  to  be  due  in  part  to  the  provisions  of  Article  I, 
section  6,  clause  2,  of  the  Constitution,  providing  that  "no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  House  during  his  continuance 
in  office." 

There  has  been  no  decision  of  the  Supreme  Court  of  which  I  am  aware  rendered  since 
the  Attorney  General's  opinion  above  cited ,  and  the  only  material  changes  in  the  law 
are  contained  in  the  acts  of  July  31 , 1894,  and  May  10, 1916.  above  quoted.  In  addition, 
the  laws  now  in  force  relating  to  the  assignment  of  retired  nayal  officers  to  active  duty 
are  different  from  those  which  were  in  force  with  reference  to  retired  Army  officers 
at  the  time  the  Attorney  General's  opinion  was  rendered,  and  this  might  possibly 
have  a  bearing  upon  the  status  of  retired  naval  officers  with  relation  to  the  consti- 
tutional provision  last  above  quoted. 

In  connection  with  the  suggestion  with  reference  to  declining  compensation  or  pay 
for  services  in  Congress,  it  was  decided  by  the  Supreme  Court  of  the  United  States, 
February  21, 1916,  in  the  case  of  U.  S.  v.  Andrews  (240  U.  S.,  90),  that  "public  policy 
prohibits  any  attempt  by  unauthorized  agreement  with  an  officer  of  the  United  States 
under  guise  of  a  condition  or  otherwise  to  deprive  him  of  the  right  to  pay  given  by 
statute."  File  27231-74,  J.  A.  G.,  May  12, 1916. 

19.  Consular  appointment.    See  21  Op.  Atty.  Gen.  510;   R.  S.,  1223;   R.  S.  1440;   RE- 

TIRED OFFICERS,  26;  DIPLOMATIC  OFFICERS,  3. 

20.  Corporations — Employment  of  retired  officers  by.    See  RETIRED  OFFICERS,  28,  31. 

21.  Counsel  In  court-martial  trials — Compensation    prohibited.    See  COUNSEL,   17. 

See  also  File  27231-^50  as  to  right  of  a  retired  officer,  who  was  a  member  of  the  bar,  to 
receive  compensation  for  acting  as  counsel  in  a  court-martial  trial  from  an  accused 
enlisted  man. 


RETIRED   OFFICERS.  541 

22.  Courts-martial — Retired  officers  are  subject  to  jurisdiction  of  naval  courts-martial. 

See  JURISDICTION,  114;  RETIRED  OFFICERS,  3-5. 33,  74. 

23.  Court-martial  duty — II  an  officer  is  retired  while  sitting  as  a  member  of  a  court- 

martial,  specific  orders  for  his  continuance  on  such  duty  are  required  and  a  copy 
thereof  should  be  attached  to  the  record  of  each  case  as  a  modification  of  the  precept. 
Where  the  record  failed  to  show  that  such  orders  had  been  issued  the  department 
held  that  such  would  not  invalidate  the  proceedings  since  such  orders  were  in  fact 
issued  to  said  retired  officer.  C.  M.  0 .  23, 1910, 5.  See  also  COURT,  49. 

24.  Culebra,  P.  R. — Health  officer.    See  APPOINTMENTS,  35;  RETIRED  OFFICERS,  40. 

25.  Death  gratuity — Not   payable  in  case  of  retired  officers.    See  RETIREMENT  OF 

OFFICERS,  20. 

26.  Diplomatic  appointments — "Under  section  1440,  R.  S.,  if  a  retired  officer  accepts 

an  appointment  in  the  diplomatic  or  consular  service  of  the  Government  he  shall  be 
considered  as  having  resigned  his  place  in  the  Navy  "  (File  9736-18,  J.  A.  G.,  June  25, 
1910,  pp.  1,  15.  16,  19).  "And  this  includes  retired  officers  of  the  Navy."  (File 
27231-3,  J.  A.  G.,  Nov.  1,  1909.  See  also  File  12-4,  Nov.  15,  1906;  27231-3,  J.  A.  G., 
Nov.  1, 1909;  26255-234;  21  Op.  Atty.  Gen.  510;  R.  S.  1223;  DIPLOMATIC  OFFICERS,  1, 
3;  RETIRED  OFFICERS,  18. 

27.  Director  of  a  corporation.   See  RETIRED  OFFICERS,  34, 36. 

28.  Domestic  corporation  s^The  act  of  June  10,  1896  (29  Stat.  361),  provides  that  it  is 

unlawful  for  any  officer  in  the  Navy  or  Marine  Corps  on  the  active  or  retired  list  to 
be  employed  by  any  person  or  company  furnishing  naval  supplies  or  war  material 
to  the  Government.  (See  C.  M.  O.  29,  1915,  p.  11.) 

Whether  a  retired  officer  may  or  may  not  accept  any  civil  position  is  a  question  to 
be  determined  by  him  upon  his  own  responsibility,  as  the  Government  would  not  be- 
come interested  in  the  matter  unless  and  until  he  should  have  accepted  illegal  employ- 
ment. (File  9736-15,  Sec.  Navy,  Mar.  2S,  1910;  9736-18,  J.  A.  G.,  June  25,  1910, 
quoting  21  Op.  Atty.  Gen.,  510.)  File  9736-60,  Sec.  Navy,  Oct.  9,  1915;  C.  M.  O.  35, 
1915,  11. 

There  is  no  law  which  would  prohibit  a  retired  naval  officer  from  accepting  em- 
ployment as  president  of  a  corporation  in  the  United  States  not  engaged  in  business 
with  the  United  States  Government.  File  9736-55,  J.  A.  G.,  Aug.  11, 1915;  C.  M.  O. 
29, 1915, 11. 

29.  Employment  of.   See  RETIRED  OFFICERS,  18,26,  28,31,34-37,42. 

30.  Expatriation.    See  RETIRED  OFFICERS,  31. 

31.  Foreign  corporations— The  act  of  June  10, 1896  (29  Stat.  361),  relating  to  the  employ- 

ment of  officers  by  Government  contractors,  is  still  in  force.  There  is  no  statute  which 
would  prevent  the  employment  of  a  retired  officer  of  the  naval  service  "  by  a  foreign 
company  manufacturing  war  munitions,"  provided  it  does  not  furnish  its  product  to 
the  United  States  Government. 

In  this  connection  attention  is  invited  to  an  opinion  of  the  Judge  Advocate  General 
dated  December  17, 1912  (File  17606-49,  Nav.  File  7032-26;  Naval  Instructions,  1913, 
1-705),  concerning  the  residence  of  naval  officers  in  foreign  countries,  the  citations 
contained  in  which  letter  should  be  of  interest  in  the  present  case,  particularly  the 
State  Department's  decisions  that  "by  the  general  law,  as  well  as  by  the  decisions  of 
the  most  enlightened  judges  both  in  England  and  in  this  country,  a  neutral  engaged 
in  business  in  an  enemy's  country  during  war  is  regarded  as  a  citizen  or  subject  of 
that  country  *  *  *  ; "  that  a  person  who  voluntarily  takes  up  his  residence  in 
another  country  "contributing  his  labor,  talents,  or  wealth,  to  the  support  of  society 
there,"  may  be  regarded  as  having  waived  his  right  of  protection  from  his  own  govern- 
ment; and  that  such  facts  may  become  material  upon  the  question  whether  he  has  not 
expatriated  himself  and  voluntarily  relinquished  his  rights  as  a  citizen  of  the  United 
States.  (See  3  Moore's  Digest  of  International  Law,  pp.  759-760.) 

The  question  whether  a  retired  naval  officer  should  be  permitted  to  reside  in  a 
foreign  country  and  engage  in  business  with  a  foreign  company  manufacturing  war 
munitions  is  one  of  policy,  which  should  be  given  very  thoughtful  consideration. 
File  9736-58,  J.  A.  G.,  Aug.  11, 1915; C.  M.  0. 29, 1915, 11.  Seealso  File  9736-67,  J.  A.  G., 
May  16, 1916. 

32.  Foreign  country— Living  in  a  foreign  country  indefinitely— Question  does  not  come 

undar  the  jurisdiction  of  the  Navy  Department  but  should  be  submitted  to  the  De- 
partment of  State.  File  9212-35,  J.  A.  G.,  Apr.  9, 1913. 


542  RETIRED  OFFICERS. 

33.  General  court-martial— Retired  officers  tried  by— Boatswain  (G.  C.  M.  Rec.  32614; 

C.  M.  O.  34, 1916);  carpenter  (C.  M.  O.48,  1907);  chief  boa tswain(C.M.  0.15,1915); 
rear  admiral  (C.  M.  0. 41, 1915);  second  lieutenant,  Marine  Corps  (C.  M.  O.  23,  1896). 
See  also  JURISDICTION,  104. 

34.  Government  contractors— Employment  of  officer  by,  prohibited — Employment  as 

director  of  a  company  furnishing  supplies  to  the  Government  is  not  legal.  File 
9736-9.  See  also  File  9736-12,  Sec.  Navy,  Dec.  4,  1909. 

The  naval  appropriation  act  of  June  10, 1896  (29  Stat.  361),  forbids  the  employment 
of  any  officer  of  the  Navy  or  Marine  Corps  on  the  active  or  retired  list  by  a  firm  or 
company  furnishing  naval  supplies  or  war  material  to  the  Government.  However, 
if  the  Navy  Department  desires  to  promote  American  trade  in  a  foreign  country  it 
may  detail  an  officer  at  the  expense  of  the  Government, and  as  the  representative 
thereof  to  assist  such  persons  whose  interests,  in  the  opinion  of  the  Secretary  of  the 
Navy,  justify  such  proceedings.  File  6077-32  :  4,  Apr.  18, 1911;  9736-35,  Sec.  Navy, 
June  20, 1913;  9736-36,  Sec.  Navy,  June  20, 1913. 

35.  Same — If  a  naval  officer  hasaccepted  employment  with  a  person  or  company  furnishing 

naval  supplies  or  war  material  to  the  Government  in  violation  of  the  act  of  June  10, 
1896  (29  Stat.  361 ),  there  is  no  doubt  that  he  may  be  brought  to  trial  therefor  by  general 
court-martial  notwithstanding  the  fact  that  he  has  returned  the  amount  of  his  retired 
pay  to  the  Government.  No  officer  of  the  Navy  or  Marine  Corps  has  heretofore  been 
brought  to  trial  by  general  court-martiaj  for  violation  of  the  law  cited  above.  Should 
evidence  be  obtained  sufficient  to  establish  that  a  company  by  which  a  naval  officer  is 
employed  is  in  fact  engaged  in  furnishing  naval  supplies  or  war  material  to  the  United 
States  Government,  the  question  whether  he  should  be  brought  to  trial  therefor  by 
court-martial  or  otherwise  dealt  with  is  one  of  policy  not  under  the  cognizance  of  the 
office  of  the  Judge  Advocate  General.  File  9736-61 : 1,  J.  A.  G..  Aug.  28, 1916. 

36.  Same— Under  the  act  of  June  10, 1896  (29  Stat .  361 ),  a  retired  naval  officer  can  not  accept 

employment  as  assistant  superintendent  of  motive  power  with  a  company  furnishing 
naval  supplies  or  war  material  to  the  Government,  even  though  such  officer  has 
nothing  to  do  with  the  manufacture  or  sale  of  products.  Same,  as  to  acceptance  of 
position  as  "director"  of  a  company  furnishing  supplies  to  the  Navy.  File  9736-9, 
5.  A.  G.,  June  25, 1910,  p.  17.  See  also  File  9736-14,  Sec.  Navy,  Jan.  9, 1910. 

37.  Same— The  employment  of  a  retired  officer  as  superintendent  or  foreman  with  con- 

tractors performing  work  on  contracts  at  a  naval  training  station  is  specifically  pro- 
hibited by  law,  and  the  department  would  consider  the  acceptance  of  such  employ- 
ment as  in  the  highest  degree  objectionable.  (File  9736-17,  Sec.  Navy,  May  26, 1910.) 
File  9736-1,  J.  A.  G.,  June  25,  1910,  p.  18. 

38.  Hague  Conference— The  President  can  appoint  a  retired  officer  of  the  Navy  as  a 

delegate  to  the  Hague  Conference,  section  1440,  R.  S.,  providing  that  if  any  officer 
of  the  Navy  accepts  or  holds  an  appointment  in  the  diplomatic  or  consular  service  he 
shall  be  considered  as  having  resigned  his  place  in  the  Navy,  does  not  affect  his  eligi- 
bility, nor  does  the  Dockery  Act  of  July  31, 1894  (28  Stat.,  205),  prohibiting  any  person 
who  holds  an  office  under  the  Revised  Statutes  at  a  salary  of  $2,500  or  over  from 
holding  any  other  office  under  the  United  States  to  which  compensation  is  attached. 
File  9947-93,  J.  A.  G.,  May  20, 1912. 

39.  Harbor  master— A  chief  boatswain  retired  was  elected  to  the  position  of  harbor  master 

and  the  department  held  that  there  was  no  Federal  law  or  regulation  prohibiting  him 
from  holding  the  position  in  question.  File  9736-69,  J.  A.  G.,  Aug.  11,  1916. 

40.  Health  officer— A  retired  naval  surgeon  can  not  be  appointed  to  the  position  of  health 

officer  of  Cule bra,  P.  R.    See  APPOINTMENTS,  35. 

41.  Jury  duty — If  a  retired  officer  is  summoned  before  a  United  States  court  for  jury  duty, 

he  should  urge  to  the  judge  the  objection  arising  from  his  military  status,  to  his  serving 
on  a  civil  jury.  See  JURY,  13. 

Retired  officers  of  the  Navy  are  not  exempted  by  the  Federal  statutes  from  service 
as  jurors  on  State  courts.  The  question  as  to  whether  a  retired  officer  should  be 
required  to  serve  in  such  capacity  is  one  for  the  court  to  decide  and  is  affected  by  the 
possible  interference  of  such  service  with  a  retired  officer's  liability  to  be  assigned  to 
active  naval  duty  in  accordance  with  law.  File  21090-5,  Solicitor,  Nov.  8, 1912.  See 
also  File  21090-5:1,  J.  A.  G.,  Nov.  9,  1912,  to  the  same  effect. 

Under  the  laws  of  some  States  the  holder  of  an  office  under  the  United  States,  whose 
official  duties,  at  the  time,  prevent  his  attendance  as  a  juror,  is  exempt.  File  21090- 
5: 1,  J.  A.  G.,  Nov.  9, 1912. 


RETIRED   OFFICERS.  543 

42.  Legality  of  employment  must  be  determined  by  the  officer  or  enlisted  man— 

Whether  a  retired  officer  may  or  may  not  accept  any  civil  position  is  a  question  to  be 
determined  by  him  upon  his  own  responsibility,  as  the  Government  would  not 
become  interested  hi  the  matter  unless  and  until  he  should  have  accepted  illegal 
employment.  (File  9736-18,  J.  A.  G..  June  25,  1910,  quoting  21  Op.  Atty.  Gen.,  510; 
9736-15,  Sec.  Navy,  Mar.  28,  1910.)  File  9736-60,  Sec.  Navy,  Oct.  9,  1915;  C.  M.  O. 
35,  1915, 11. 

43.  Major  general,  commandant— Retired  marine  officer  can  not  be  appointed  as.    See 

MARINE  CORPS,  47,  48. 

44.  Marine  officers — A  retired  marine  officer  is  eligible  to  detail  to  service  as  a  teacher  or 

professor  in  any  school  or  college  under  the  act  of  Mar.  2, 1895  (28  Stat.,  826),  providing 
in  part  as  follows: 

"Provided,  That  any  retired  officer  of  the  Navy  or  Marine  Corps  may,  on  his  own 
application,  be  detailed  to  service  as  a  teacher  or  professor  in  any  school  or  college, 
but  while  so  serving  such  officer  shall  be  allowed  no  additional  compensation." 

Concerning  the  provision  which  refers  to  "additional  compensation,"  it  was  held  by 
the  Attorney  General  in  construing  a  similar  provision  of  section  1260,  R.  S.,  "that  this 
does  not  refer  to  any  additional  compensation  from  the  college,  but  from  the  United 
States."  (20  Op.  Atty.  Gen.,  689). 

The  act  of  Feb.  26, 1901  (31  Stat.,  810)  and  act  of  Apr.  21, 1904  (33  Stat.,  225)  were 
.  considered  in  this  opinion.  File  11112-649,  J.  A.  G.,  Sept.  8, 1916.  Set  also  File  9736- 
22,  Sec.  Navy,  Aug.  12, 1911;  R.  S.  1225. 

45.  Same — "  Held,  That  after  June  6, 1912.  retired  officers  of  the  Marine  Corps  can  not  be 

ordered  to  perform  active  duty  under  the  law  as  it  now  stands."  File  27231-47, 
J.  A.  G.,  May  31, 1912.  But  see  RETIRED  OFFICERS,  l. 

46.  Same— Act  of  August  22, 1912  (37  Stat.,  329).    See  RETIRED  OFFICERS,  1. 

47.  Same^Rankof  retired  marine  officers— As  affected  by  act  June  3,  1916  (39  Stat.,  183.) 

Section  24  of  this  act  does  not  apply  to  the  Marine  Corns  "  in  so  far  as  affects  the  rank 
of  retired  officers  who  have  performed ,  or  who  may  in  the  future  perform,  the  required 
amount  of  active  duty."  File  26509-158:2,  J.  A.  G.,  June  27,  1916. 

4S.  Same — Retired  marine  officers  requested  change  of  date  in  commissions.    See  COM- 
MISSIONS, 17, 18. 

49.  Same — Pay  of  retired  marine  officer  ordered  to  active  duty  by  the  Secretary  of  the  Navy 

under  act  of  Aug.  22, 1912  (37  Stat.,  329).    See  PAY,  91 ;  RETIRED  OFFICERS,  1. 

50.  Mayor  of  a  city  to  one  of  the  States — Revised  Statutes  1860  "does  not  prohibit  a 

retired  officer  from  accepting  an  office  as  mayor  of  a  city  in  one  of  the  States  if  duly 
elected  thereto.  In  such  case,  however,  a  retired  officer  is,  of  course,  subject  to  recall 
to  naval  duty  if  the  exigencies  of  the  service  so  require  under  the  law."  (File  5650-00, 
Sec.  Navy,  Sept.  21, 1900.)  File  9736-18,  J.  A.  G.,  June  25, 1910,  p.  17.  See  also  Act  ot 
June  7, 1900  (31  Stat.,  703);  File  27231-3,  J.  A.  G.,  Nov.  1,  1909. 

51.  Medical  Corps— Employed  on  active  duty— An  officer  of  the  Medical  Corps  of  the 

Navy  on  the  retired  list  may  be  employed  on  active  duty  under  the  act  of  August  22, 
1912  (37  Stat.,  329).  File  27231-65,  J.  A.  G.,  June  30,  1915;  C.  M.  O.  22,  1915,  10. 

52.  National  Guard— It  has  been  decided  by  the  Attorney  General  (29  Op.  Atty.  Gen. 

298)  that  an  office  in  the  National  Guard  of  a  State  is  not  a  civil  office  within  the  mean- 
ing of  section  1222,  R.  S.,  relating  to  the  Army,  the  Attorney  General  stating  in  part: 
"I  have  the  honor,  therefore,  to  advise  you  that,  in  my  opinion,  an  officer  on  the 
active  list  of  the  Regular  Army  may  accept  the  office  to  which  you  refer  without 
violating  the  provisions  of  section  1222,  R.  S.  Whether  the  acceptance  by  an  officer 
of  the  Army  of  an  office  in  the  National  Guard  of  a  State  would  be  inconsistent  with  the 
policy  expressed  in  the  Constitution  and  laws  of  the  United  States  with  respect  to 
these  two  establishments,  and  whether  there  are  not  reasons  other  than  those  con- 
tained in  section  1222,  R.  S.,  which  would  make  it  illegal  or  improper  for  an  officer  of 
the  Army  to  subject  himself  to  conflicting  State  jurisdiction,  are  matters  upon  which 
I  express  no  opinion."  File  8093-17,  J.  A.  G.,  May  22,  1914. 

53.  Naval  Home — Forfeiture  of  retired  pay  when  admitted  to  Naval  Home.    See  NAVAL 

HOME.I. 

54.  Naval  Militia  of  a  State*— A  retired  officer  of  the  Navy  can  legally  accept  a  commission 

as  an  officer  hi  the  National  Guard,  or  Naval  Militia,  of  a  State,  quoting  from  letter  of 
Acting  Judge  Advocate  General  to  aid  for  personnel,  Dec.  23,  1910,  File  9736-19.  The 
letter  cited  is,  however,  modified  by  the  provision  of  the  act  of  Aug.  22,  1912  (37 
Stat.,  329)  providing  that  naval  officers  may,  tr ith  their  consent,  be  ordered  to  duty. 
File  9736-29,  J.  A.  G.,  Oct.  17, 1912. 

50756"— 17 35 


544  RETIRED  OFFICERS. 

55.  Same — There  is  nothing  in  the  law  which  would  prohibit  a  retired  naval  officer  from 

accepting  a  commission  as  commanding  officer  of  the  Naval  Militia  of  a  State.  In 
case  of  acceptance,  however,  such  officer  will  be  subject  to  recall  to  naval  duty  if  the 
exigencies  of  the  service  so  require  under  the  act  of  June  7, 1900  (31  Stat.,  703),  or  in  time 
of  war.  (File  9736-19,  J.  A.  G.,  Dec.  23,  1910.)  The  responsibility  of  such  officer, 
commissioned  as  commanding  officer  of  the  Naval  Militia  of  a  State,  would  not  be  to 
the  governor  only,  but  within  the  purview  of  matters  covered  by  the  Articles  for  the 
Government  of  the  Navy  and  other  lawful  rules,  would  be  responsible  even  to  the 
extent  of  punishment  by  naval  courts-martial;  also  to  the  Secretary  of  the  Navy. 
His  accountability  for  Government  property  intrusted  to  him  personally  would  not  be 
different  from  that  of  other  officers  of  the  Navy  similarly  intrusted.  (File  9736-19:1.) 

56.  Same— There  is  no  legal  objection  to  a  retired  naval  officer  accepting  a  commission  in 

the  Naval  Militia,  the  objection,  if  any,  being  one  of  policy  only.  Op.,  J.  A.  G., 
Feb.  17,  1916.  See  also  File  26254-2073,  Sec.  Navy,  Aug.  24,  1916. 

57.  Same — "It  is  suggested  that  the  commissioning  of  a  warrant  officer  in  the  Navy  with 

the  rank  of  a  lieutenant  in  the  Naval  Militia,  to  wear,  it  is  assumed,  the  uniform  of  a 
lieutenant,  in  which  position  he  may  come  in  contact  with  officers  of  the  Navy,  his 
actual  seniors  in  rank,  would  be  open  to  objection  upon  grounds  of  policy,  and  would 
not  conduce  to  the  best  interests  of  the  service."  File  4580-04,  J.  A.  G.,  May  24, 1904, 
quoted  in  File  8093-17,  J.  A.  G.,  May  22,  1914. 

58.  Same — While  there  is  no  law  expressly  prohibiting  an  officer  of  the  Regular  Navy  from 

holding  an  office  in  the  Naval  Militia,  it  is  believed  that  the  holding  of  such  office 
contemporaneously  with  holding  an  office  in  the  Regular  Navy  is  incompatible 
with  the  best  interests  of  both  the  Regular  Navy  and  Naval  Militia.  File  8093-17, 
J.  A.  G.,  May  22,  1914. 

59.  "  Offices  "—The  Attorney  General  has  held  that  an  officer  may  hold  two  distinct  offices 

and  receive  the  pay  of  each.  (14  J.  A.  G.  437.)  But  if  two  incompatible  offices  are  held 
by  the  same  person,  it  is  otherwise.  Also  held  that  the  Secretary  of  the  Navy  can 
appoint  a  retired  officer  to  supervise  the  completion  of  certain  tables  of  planets.  File 
9736-18,  J.  A.  G.,  June  25, 1910,  p.  12.  See  also  RETIRED  OFFICERS,  18,  66. 

60.  Officers,  retired— Tried  by  general  court-martial.    See  RETIRED  OFFICERS,  33. 

61.  Part  of  Navy— Naval  officers,  when  placed  on  the  retired  list,  are  still  part  of  the  naval 

service  and  subject  to  the  jurisdiction  thereof.  (See  Murphy  v.  U.  S.,  38  Ct.  Cls. 
511,  521.)  See  RETIRED  OFFICERS,  3-5, 33, 62,  74;  File  27231-5,  Sec.  Navy,  Dec.  9, 1909. 

62.  Passed  assistant  surgeon,  retired— Recommended  for  trial  by  general  court-  martial. 

File  26251-12462. 

63.  Pay— Compensation  of  retired  officers  denned.    See  RETIRED  OFFICERS,  16. 

04.  Same— Half  pay  when  retired  under  the  provisions  of  section  R.  S.,  1447.    14  J.  A.  G. 
427;C.M.O.  49,  1915,27. 

65.  Same — Forfeiture  of  retired  pay  when  admitted  to  Naval  Home.    See  NAVAL  HOME,  l. 

66.  Same — A  retired  officer  of  the  Navy  whose  retired  pay  amounts  to  $2,500  per  annum, 

is  within  the  prohibition  of  the  act  of  July  31,  1894,  section  2  (28  Stat.,  205).  File 
9736-42,  Sec.  Navy,  Mar.  7, 1914.  See  also  RETIRED  OFFICERS,  18,  60. 

67.  Pension.    See  RETIRED  OFFICERS,  16. 

68.  Porto  Rico—  Health  officer  of  Culebra,  P.  R.    -Sec  APPOINTMENTS,  35. 

69.  Professors — Marine  officers  as.    See  RETIRED  OFFICERS,  44. 

Naval  officers  as.    See  File  21449-2;  21403. 

70.  Bank  of  Marine  officers— As  affected  by  the  act  of  June  3, 1916  (39  Stat.,  183).    See 

RETIRED  OFFICERS,  47. 

71.  Rear  admiral,  retired— Tried  by  general  court-martial.    C.  M.  O.  41,  1915. 

72.  Representatives,  House  of — Suggested:  That  it  is  inadvisable  that  a  retired  naval 

officer  "go  to  Congress  and  retain  his  commission  in  the  Navy,"  even  though  he 
declines  all  compensation  or  pay  for  his  services  in  Congress,  and  will  resign  his  seat 
in  Congress  whenever  the  Navy  Department  shall  require  his  service.  See  RETIRED 
OFFICERS,  18. 

73.  Residence — Voting.    See  VOTING,  12. 

74.  Second  lieutenant,  Marine  Corps,  retired — Tried  by  general  court-martial.    C.  M. 

O.23, 1896. 

75.  Ship,  merchant — There  is  no  Federal  statute  which  would  prevent  a  retired  officer  of 

the  Navy  from  accepting  command  of  a  merchant  vessel  provided  he  does  not  accept 
employment  with  any  person  or  company  furnishing  naval  supplies,  etc.,  to  the 
Government.  File  9736-51,  J.  A.  G.,  Nov.  19, 1914. 


RETIRED   OFFICERS.  545 

A  naval  officer  can  not  lawfully  serve  as  master  of  a  private  steam  vessel  in  the  mer- 
chant sen-ice  without  having  previously  obtained  the  license  required  by  section 
4438,  R.  S.,  although  he  may  be  eligible,  by  virtue  of  his  commission,  to  take  command 
of  a  steam  vessel  of  the  United  States  in  the  naval  service.  (15  Op.  Atty.  Gen.  60.) 

There  is  no  objection  to  a  retired  naval  officer  accepting  command  of  a  merchant 
vessel.  (Letter  of  Department  of  State,  dated  Nov.  24,  1914.)  See  File  9736-51. 

76.  Signatures — The  word  "retired  "  may  appropriately,  and  should  be,  appended  to  the 

signatures  of  officers  on  the  retired  list.    File  3575-03. 

77.  State  offices.    File  27231-3. 

78.  Superintendent  of  the  State,  War,  and  Navy  Building— Eligibility  of  a  retired 

naval  officer.    File  9510-5. 

79.  Voting.   See  VOTING. 

80.  War— Censor  duty  in  time  of  war.    File  21393-185:560. 

81.  War  slate.    File  3800-640:2;  28573-64. 

82.  Warrant  officers,  retired— Tried  by  general  court-martial.    C.  M.  O.  34, 1916. 

RETIREMENT  OF  ENLISTED  MEN. 

1.  Fleet  Naval  Reserve.    See  RETIREMENT  OF  ENLISTED  MEN,  3. 

2.  Laws  relating  to—"  That  when  an  enlisted  man  or  appointed  petty  officer  has  served 

as  such  thirty  years  in  the  United  States  Navy,  either  as  an  enlisted  man  or  petty 
officer,  or  both,  he  shall,  by  making  application  to  the  President,  be  placed  on  the 
retired  list  hereby  created,  with  the  rank  held  by  bun  at  the  date  of  retirement;  and 
he  shall  thereafter  receive  seventy-five  per  cent  of  the  pay  and  allowances  of  the  rank 
or  rating  upon  which  he  was  retired:  Provided,  That  if  said  enlisted  man  or  appointed 
petty  officer  had  active  service  in  the  Navy  or  in  the  Army  or  Marine  Corps,  either 
as  volunteer  or  regular,  during  the  Civil  or  Spanish-American  War,  such  war  service 
shall  be  computed  as  double  time  in  computing  the  thirty  years  necessary  to  entitle 
him  to  be  retired,"  etc.  (Act  Mar.  3,  1899,  sec.  17:  30  Stat.,  1008.) 

"That  in  computing  the  necessary  thirty  years'  time  for  retirement  of  petty  officers 
and  enlisted  men  of  the  Navy,  all  service  in  the  Army,  Navy,  or  Marine  Corps  shall 
be  credited."  (Act  June  22, 1906;  34  Stat.,  451.) 

"That  when  an  enlisted  man  shall  have  served  thirty  years  either  in  the  Army, 
Navy,  or  Marine  Corps,  or  in  all,  he  shall,  upon  making  application  to  the  President, 
be  placed  upon  the  retired  list,  with  seventy-five  per  centum  of  the  pay  and  allow- 
ances he  may  then  be  in  receipt  of,  and  that  said  allowances  shall  be  as  follows:  *  *  * 
Provided,  That  in  computing  the  necessary  thirty  years' time  all  service  in  the  Army, 
Navy,  and  Marine  Corps  shall  be  credited. 

"SEC.  2.  That  all  acts  and  parts  of  acts,  so  far  as  they  conflict  with  the  provisions 
of  this  act,  are  hereby  repealed."  (Act  Mar.  2, 1907;  34  Stat.,  1217.) 
«  *  *  *  The  period  of  time  during  which  members  of  the  naval  reserve  were 
actively  employed  with  the  Navy  while  enlisted  in  the  naval  reserve  shall,  for  the 
purposes  of  retirement,  be  counted  as  active  service  in  the  Navy  in  the  case  of  those 
who  reenlist  in  the  Navy  after  service  in  the  naval  reserve."  (Act  of  Mar.  3, 1915, 
38  Stat.,  940.) 

"Men  transferred  to  the  Fleet  Naval  Reserve  shall  be  governed  by  the  laws  and 
regulat  ions  for  the  government  of  the  Navy  and  shall  not  be  discharged  from  the  Naval 
Reserve  Force  without  their  consent,  except  by  sentence  of  court-martial.  They  may, 
upon  their  own  request,  upon  completing  thirty  years',  including  naval  and  fleet 
naval  reserve  service,  be  placed  on  the  retired  list  of  the  Navy  with  the  pay  they  were 
then  receiving  plus  the  allowances  to  which  enlisted  men  of  the  same  rating  are  en- 
titled on  retirement  after  thirty  years'  naval  service."  (Act  Aug.  29,  19160  File 
26254-2114.  Sec.  Navy,  October,  1911. 

3.  Service  required — For  the  purpose  of  determining  the  thirty  years'  service  necessary  for 

retirement,  all  service  should  be  counted,  namely,  Army,  Navy,  Marine  Corps, 
active  Naval  Reserve  service  as  referred  to  in  the  Act  of  March  3, 1915  (38  Stat.,  940), 
and  Fleet  Naval  Reserve  service,  in  the  cases  of  men  transferred  to  and  retired  from 
the  Fleet  Naval  Reserve.  File 8124-55,  J.  A.  G.,  Oct.  17, 1916:  C.  M.  O.  37, 1916. 

Members  of  the  Fleet  Naval  Reserve  upon  retirement  are  entitled  to  have  war 
service  "computed  as  double  time  in  computing  the  thirty  years  necessary  to  entitle" 
them  to  be  retired  in  accordance  with  the  act  of  March  3,  1899  (30  Stat.,  1008).    File 
26254-2114,  Sec.  Navy,  Oct.  16,  1916:  C.  M.  O.  37,  1916. 
4.  War  service— See  RETIREMENT  OF  ENLISTED  MEN,  3. 


54G  RETIREMENT    OF   OFFICERS. 

RETIREMENT  OF  OFFICERS. 

1.  Acceptance.    See  RETIREMENT  OF  OFFICERS,  18. 

2.  Acting  assistant  surgeons— Can  not,  under  the  law.  be  retired  for  physical  disability. 

File  27231-51,  Sec.  Navy,  June  30, 1915,  and  July  14, 1915. 

3.  Action— Of  President.    See  RETIREMENT  OF  OFFICERS,  42-47. 

4.  Admiral  of  the  Navy— After  the  victory  of  the  present  Admiral  of  the  Navy  over  the 

Spanish  Squadron  at  Manila,  the  following  law  was  enacted  (Mar.  2,  1899;  30  Stat 
995  1045): 

''That  the  President  is  hereby  authorized  to  appoint  by  selection  and  promotion  an 
t         Admiral  of  the  Navy,  who  shall  not  be  placed  upon  the  retired  list  except  upon  his 
own  application." 

It  can  not  be  contended  that  the  retention  of  this  distinguished  officer  upon  the 
active  list,  at  his  pleasure,  is  meant  to  be  other  than  a  reward.  File  2623-114.  J.A..G., 
Aug.  19, 1910,  p.  10. 

5.  Age— Retirements  for  age  and  for  physical  disability  do  not  appear  to  be  rights  of  re- 

tirement to  which  an  officer  is  entitled,  but  are,  on  the  contrary,  compulsory  and  are 
provided  to  rid  the  service  of  the  aged,  the  enfeebled,  and  the  physically  unfit.  15 
J.  A.  G.,  15.  See  also  RETIREMENT  OF  OFFICERS,  21,  28. 

6.  Same — There  are  many  instances  indicatory  that  Congress  has  never  intended  that 

retirement  for  age  shall  be  considered  as  beneficial,  but,  on  the  contrary,  as  dis- 
tinctly adverse  to  the  interests  of  the  person  so  retired.  15  J.  A.  G.,  9.  See  also 
RETIREMENT  OF  OFFICERS,  21,  28. 

7.  Age,  retirement  for  age  prior  to  Aug.  29,  1916— The  court,  in  U.  S.exrel.  George 

li.  Foreman  v.  George  von  L.  Meyer,  held  in  substance  that  an  officer  of  the  Navy 
must  have  had  45  years'  service  to  entitle  him  to  retirement  for  age.  See  File  5460-32: 
17,  J.  A.  G.,  Feb.  7,  1912,  which  comments  adversely  upon  the  court's  ruling  above. 
An  officer  of  the  Navy  does  not  have  to  have  had  45  years'  service  before  he  can  be 
retired  for  age,  but  may  be  retired  for  ago  after  attaining  the  age  of  62  years.  The 
department's  construction  of  the  retirement  laws,  in  consonance  therewith,  are 
therefore  considered  proper  and  contrary  to  the  court's  ruling  above.  File  5460-32:17, 
J.  A.  G.,  Feb.  17, 1912. 

8.  Same — Laws  relating  to  retirement  for  age  and  construction  of  same.    See  RETIRE- 

MENT OF  OFFICERS.  28. 

9.  Age,  retirement  for  age  subsequent  to  Aug.  29, 1916 — "  Except  as  herein  other- 

wise provided ,  hereafter  the  age  for  retirement  of  all  officers  of  the  Navy  shall  be  sixty- 
four  years  instead  of  sixty-two  years  as  now  prescribed  by  law."  (Act  of  Aug.  29, 
1916;  39  Stat.,  579.) 

The  age  limit  for  retirement  of  officers  of  tne  Navy,  provided  in  the  act  of  August 
29, 1916  (39  Stat.,  579),  will  apply  to  retired  officers  who  may  be  restored  to  the  active 
list  by  acts  of  Congress.  File  286K72,  J.  A.  G.,  Sept.  9, 1916. 

10.  Army — Abstract  of  retirement  laws.    See  RETIREMENT  OF  OFFICERS,  29. 

11.  Beneflt^Congress  has  never  intended  that  retirement  for  age  shall  be  considered  as 

beneficial.    See  RETIREMENT  OF  OFFICERS,  6. 

12.  Causes  of— Twelve  officers,  at  least,  who  were  found  physically  qualified  for  promo- 

tion, but  unqualified  professionally,  mentally,  or  morally,  have  been  placed  upon  the 
retired  list  in  accordance  with  the  act  of  April  21,  1864,  sec.  1  (13  Stat.,  53).  At  least 
three  officers  who  were  examined  and  found  physically  disqualified  were  retired 
under  section  4  of  above  act  (13  Stat.,  53).  14  J.  A.  G.,  422. 

13.  Chief  carpenter— With  Civil  War  service.    See  CIVIL  WAR  SERVICE,  6. 

14.  Chiefs  of  bureaus — Subsequent  retirement  of  officers  who  have  served  as  chiefs  of 

bureaus.    File  27231-66:2,  J.  A.  G.,  Oct.  21,  1915. 

15.  Chiefs  of  Staff  Corps.    See  CHIEFS  OF  STAFF  CORPS,  1. 

16.  Civil  War  service — Higher  grade  for  Civil  War  service.    See  CIVIL  WAR  SERVICE,  5,  6. 

17.  Clerks  to  assistant  paymasters,  Marine  Corps.    See  PAYMASTERS'    CLERKS, 

MARINE  CORPS,  5,  6. 

18.  Communication  of  acceptance — While  in  the  case  of  an  officer  who  resigns  his 

commission  it  is  necessary  to  communicate  to  him  the  acceptance  of  such  resignation, 
yet  the  same  conditions  do  not  exist  whore  a  change  of  status  is  involved,  as  the 
transfer  of  an  officer  from  the  active  to  the  retired  list,  and  the  facts  are  only  com- 
municated to  the  officer  concerned  to  inform  him  of  the  fact  that  he  has  been  retired, 
on  and  from  a  certain  date.  File  26543,  J.  A.  G.,  Aug.  28,  1911,  p.  2. 

19.  Congress— Can  not  change  finding  of  a  retiring  board.    See  RETIREMENT  OF  OFFI- 

CERS, 26. 


RETIREMENT   OF  OFFICERS.  547 

20.  Death  gratuity— An  officer  of  the  Navy  was  selected  for  retirement  under  the  act  of 

March  3, 1899,  sec.  9  (30  Stat.,  1004, 1006);  findings  of  board  approved  by  the  President 
July  3, 1911;  the  officer  died  July  4{  1911.  Held,  That  since  this  officer  was  no  longer 
on  the  active  list  but  on  the  retired  list ,  the  provisions  of  law  for  the  payment  of  a  death 
gratuity  were  not  applicable.  Ffle  26543-62:1,  J.  A.  G.,  Aug.  28,  1911. 

21.  Disadvantage— Retirement  is  looked  upon  as  disadvantageous  by  officers.    File 

26253-114,  J.  A.  G.,  Aug.  19, 1910,  p.  11.    See  also  RETIREMENT  OF  OFFICERS,  5,  6. 

22.  "Discharged"— Defined  and  compared  with  "wholly  retired"  and  "dismissed."    See 

DISCHARGE,  11. 

23.  "Dismissed"— Defined  and  compared  with  "wholly  retired"  and  "discharged."    See 

DISCHARGE,  11. 

24.  Employment-;-In  civil  capacity  during  Philippine  campaign— Since  employment  in 

connection  with  the  Marine  Corps  in  the  Philippines  during  the  Philippine  Campaign 
in  a  civilian  capacity  did  not  operate  to  make  such  employee  an  officer  or  enlisted 
man  of  said  corps  (Ffle  19245-43:1,  Sec.  Navy,  Mar.  8, 1912)  the  department  held  that 
a  pay  clerk,  having  been  soemployed,  should  not  be  considered  as  having  been  in  the 
military  service  in  connection  with  questions  of  precedence  or  retirement  for  length 
of  service.  File  19245-43:3,  Sec.  Navy,  July  6,  1915;  C.  M.  O.  27,  1915,  10. 

25.  Feeble— Retirement  of.    See  See  RETIREMENT  OF  OFFICERS,  5. 

26.  Finding— Of  a  retiring  board  can  not  be  changed  by  act  of  Congress.    Ffle  26255-83:4, 

J.  A.G.,Aug.  4,  1911,  p.  2. 

27.  Involuntary  retirement— Laws  relating  to.    See  RETIREMENT  OF  OFFICERS,  28,  29. 

28.  Laws  relating  to  retirement  of  officers  of  the  Navy— The  act  of  December  21, 1861, 

provided  that  officers  of  the  Navy  should  be  retired  from  active  sen-ice  for  two  sepa- 
rate reasons,  namely:  (1)  Whose  name  shall  have  been  borne  on  the  Navy  Register 
for  45  years;  (2)  who  shall  be  of  the  age  of  62  years.  The  Navy  Department  has,  for 
nearly  40  years,  construed  the  law,  now  embodied  as  section  1444,  R.  S.,  as  only 
requiring  the  fulfilment  of  either  requirement.  The  construction  of  those  laws  by 
the  department  should  be  controlling.  Ffle  26260-874,  J.  A.  G.,  June  3,  1910,  p.  5. 

29.  Same — Abstract  of  retirement  laws  showing  differences  between  the  laws  relating  to 

retirement  of  officers  of  the  Army,  Navy,  and  Marine  Corps.  File  27231-10,  Feb.  9, 
1910. 

30.  Same— In  general  under  section  1456,  R.  S.,  and  the  act  of  August  5, 1882  (22  Stat.,  284), 

misconduct  is  not  ground  for  retirement.    Ffle  26260-874,  J.  A.  G.,  June  3, 1910,  p.  5. 

31.  Same — A  commander  who  has  failed  to  qualify  for  promotion  can  not  be  retained  at 

the  head  of  his  list  until  he  does  qualify,  by  virtue  of  section  1458,  R.  S.  In  such  a 
case,  the  pro  visions  of  sections  1447  and  14%,  R.S.,  would  apply  and  the  officer  would 
receive  one-half  pay  upon  retirement.  Ffle  26260-874,  J.  A.  G.,  June  3, 1910,  pp.  5-8. 
See  also  File  5460-32:17,  J.  A.  G.,  Feb.  7,  1912. 

32.  Leave  of  absence — Requested  prior  to  retirement.    See  LEAVE  OF  ABSENCE,  10. 

33.  Legal  right — To  be  examined  for  promotion  when  physically  incapacitated  for  duty — 

An  officer  has  not  a  legal  right  to  be  ordered  before  a  board  of  medical  examiners  for 
promotion  instead  of  being  ordered  before  a  retiring  board,  where  he  is  due  for  pro- 
motion, but  the  records  of  the  department  in  his  case  are  such  as  to  establish  pnma 
/ocJehisphysicalincapacityforactiveduty.  Thisapplies,forexample,  (a)  toan  officer 
who  has  already  appeared  before  a  retiring  board  upon  which  action  has  been  sus- 
pended or  which  has  not  otherwise  been  finally  disposed  of;  (6)  to  an  officer  who  is 
on  sick  leave  or  on  the  sick  list  when  his  promotion  becomes  due,  and  has  been  in 
that  status  for  a  prolonged  period  prior  thereto;  (c)  and  to  an  officer  who  has  received 
permanent  physical  injuries  of  a  disabling  character  before  his  promotion  comes  due. 
File  27231-63,  J.  A.  G.,  May  27,  1915;  C.  M.  O.  22,  1915,  10. 

34.  Line  of  duty.   See  SURGICAL  OPERATIONS. 

35.  Marine  officers— "The  commissioned  officers  of  the  Marine  Corps  shall  be  retired  in 

like  cases,  in  the  same  manner,  and  with  the  same  relative  conditions,  in  all  respects, 
as  are  provided  for  officers  of  the  Army,  except  as  is  otherwise  provided  in  the  next 
section."  (R.  S.,  1622.)  Ffle  26280-fil. 

From  the  very  language  of  section  1622,  R.  S.,  it  would  occur  that  it  was  intended 
to  apply  only  to  the  retirement  of  marine  officers,  and  not  to  their  status  after  retire- 
ment. This  is  what  was  held  by  the  Court  of  Claims  in  Jonas  v.  U.  S.  (Ct.  Cls.),  the 
court  stating: 

"Section  1622  simply  provides  for  the  conditions  precedent  to  the  retirement  of  an 
officer  of  the  Marine  Corps,  but  in  no  way  changes  the  jurisdiction  to  which  he  is 
subject  or  the  conditions  under  which  he  may  again  be  placed  upon  active  duty." 


548  RETIREMENT    OF   OFFICERS. 

"The  meaning  of  the  provision,  'with  the  same  relative  conditions,'  is  obscure. 
It  might  be  regarded  as  including  eligibility  for  assignment  to  active  duty.  But  I 
think  this  would  be  extending  its  meaning  beyond  what  was  intended.  I  am  of 
opinion  that  it  will  be  given  its  appropriate  meaning  by  confining  it  to  conditions 
pertaining  to  retirement  alone."  (11  Comp.  Dec.,  8.) 

"The  language  of  section  1022  is  broad  and  sweeping,  and  as  it  is  the  only  provision 
upon  the  subject  of  retirement  it  must  be  held  to  mean  just  what  it  says — that  'the 
commissioned  officers  of  the  Marine  Corps  shall  be  retired  in  like  cases  in  the  same 
manner,  and  with  the  same  relative  conditions  in  all  respects,  as  are  provided  for 
officers  of  the  Army.'  In  other  words,  officers  of  the  Marine  Corps,  in  the  matter  of 
retirement,  were  placed  by  that  section  upon  exactly  the  same  footing  as  officers  of 
the  Army."  (25  Op.  Atty.  Gen.,  262.) 

36.  Same — A  marine  officer  was  examined  for  promotion  to  the  next  higher  grade  and 

failed  physically,  whereupon  the  marine  examining  board  resolved  itself  into  a  re- 
tiring board;  the  officer  was  found  incapacitated  for  active  service,  the  result  of  an 
incident  of  the  service.  The  actual  retirement  should  not  take  place  before  the 
occurrence  of  the  vacancy  to  which  the  officer  would  be  entitled  If  qualified  (he  having 
been  examined  prior  to  the  existence  of  the  vacancy).  Action  was  withheld  until  a 
vacancy  occurred ,  when  the  record  was  transmitted  to  the  President  with  the  recom- 
mendation that  the  finding  be  approved  and  the  officer  retired  in  the  next  higher 
grade,  under  the  acts  of  October  1, 1890  (26  Stat.,  562),  and  July  28, 1892  (27  Stat.,  321). 
File  26260-1058,  May  6,  1912. 

37.  Naval  officers— In  general.    File  26260-1294,  J.  A.  G.,  June  10, 1911. 

38.  Paymasters'  clerks.    File  26253-364:1,  J.  A.  G.,  Mar.  23, 1915. 

39.  Paymasters'  clerks,  Marine  Corps.    See  PAYMASTERS'  CLERKS,  MARINE  CORPS,  5. 6. 

40.  Physical  disability— "Hereafter,  if  any  officer  of  the  United  States  Navy  shall  fail 

in  his  physical  examination  for  promotion  and  be  found  incapacitated  for  service  by 
reason  of  physical  disability  contracted  in  the  line  of  duty,  no  shall  be  retired  with 
the  rank  to  which  his  seniority  entitled  him  to  be  promoted/'  (Act  Mar.  4, 1911;  36 
Stat.,  1267.)  , 

The  purpose  of  the  enactment  of  March  4,  1911,  above  quoted,  as  shown  by  the 
Secretary  of  the  Navy's  annual  report  for  the  fiscal  year  1909  (p.  34),  and  by  letters 
written  by  this  department  to  Congress  urging  the  legislation  in  question  (File  20509- 
1/2-40  and  40:1;  26255-195:2),  was  to  reward  officers  who  had  served  the  full  period  in 
their  existing  grade  and  who,  upon  becoming  due  for  promotion  by  seniority,  were 
found  upon  examination  therefor  to  be  physically  disqualified  for  such  promotion  to 
which  they  were  regarded  as  being  in  equity  and  justice  entitled  by  reason  of  efficient 
service  rendered  bv  them  on  the  active  list.  In  other  words,  the  law  was  intended  to 
cover  the  cases  of  officers  who  had  served  throughout  their  existing  grade  on  the 
activelist  but  who,  upon  examination  for  promotion,  were  discovered  to  be  physically 
disqualified  for  the  duties  of  a  higher  grade.  (See  File  26253-386:1,  Jan.  27,  1915. ) 
File  27231-63,  J.  A.  G.,  May  27,  1915.  See  also  PROMOTION,  157;  RETIREMENT  OF 
OFFICERS,  50. 

41.  "Plucking  Board"— Held,  That  the  vacancies  caused  by  retirements  in  cases  where 

the  provision  in  the  act  of  March  4,  1911  (36  Stat.,  1267),  applies,  should  be  counted  in 
determining  the  annual  "average  vacancies  enumerated  in  section  8"  of  the  Navy 
personnel  act.  (Act  of  March  3,  1899,  30  Stat.  1006.) 

The  provisions  of  the  act  of  March  4, 1911  (36  Stat.,  1267),  were  intended  to  bo  identi- 
cal with  the  Army  law  of  October  1,  1890  (26  Stat.,  562),  and  to  have  the  identical 
operation  thereof. 

The  vacancies  created  by  the  provision  of  the  act  of  March  4,  1911  (36  Stat.,  1267), 
are  vacancies  in  the  grades  held  at  the  time  of  retirement  from  which  promotion 
would  otherwise  bo  made.  File  2C297-9,  J.  A.  G.,  Feb.  8, 1912. 

The  so-called  Plucking  Board  was  the  act  of  March  3, 1899,  section  9,  (30  Stat.  1006) 
as  amended  by  the  act  of  August  22, 1912  (37  Stat .,  328).  It  was  repealed  by  the  act  of 
March  3, 1915  (38  Stat.,  938).  File  26251-169,  p.  7.  See  also  PROMOTION,  123. 

"The  act  of  March  3, 1899,  section  9  (30  Stat.,  1004),  known  as  The  Navy  Personnel 
Act,  provided  for  a  board  of  rear  admirals  whose  duty  it  was  to  select  officers  for  re- 
tirement, in  order  to  create  vacancies.  It  was  provided  that  the  Secretary  of  the 
Navy  'shall  place  at  its  disposal  the  service  and  medical  records  on  file  in  the  Navy 
Department  of  all  the  officers  in  the  grades  of  captain,  commander,  lieutenant  com- 
mander, and  lieutenant; '  that '  the  board  shall  then  select ,  as  soon  as  practicable  after 
the  first  day  of  July  a  sufficient  number  of  officers  from  the  before-mentioned  grades, 
as  constituted  on  the  thirtieth  day  of  June  of  that  year,  to  cause  the  average  vacancies 


RETIREMENT    OF    OFFICERS.  549 

enumerated  in  section  eight  of  this  Act ';  and  that  'each  member  of  said  board  shall 
swear,  or  affirm,  that  he  will  without  prejudice  or  partiality,  and  having  in  view 
solely  the  special  fitness  of  officers  and  the  efficiency  of  the  naval  service,  perform  the 
duties  imposed  upon  him  by  this  Act."  File  20231-169;  J.  A.  G. ,  Nov.  28, 1916,  pp.  7-8. 

42.  President—"  Whenever,  in  the  judgment  of  the  President,  an  officer  is  incapacitated 

to  perform  the  duties  of  his  office,  the  President,  at  his  discretion,  may  direct  the 
Secretary  of  the  Navy  to  refer  the  case  of  such  officer"  to  a  retiring  board.  File 
27231-63,  J.  A.  G.,  May  27,  1915. 

43.  Same— Action  of  President  in  approving  the  finding  of  a  retiring  board  is  a  judicial 

act  "equivalent  to  the  judgment  of  an  appropriate  tribunal."  (Burchard  v.  V.  S., 
125  U.  S.,  176).  File  26256-10/A,  J.  A.  G.,  Jan.  25,  1909,  p.  4. 

44.  Same— After  approval  by  the  President  of  the  report  of  a  retiring  board  the  case  can 

not  be  reopened.  Where  the  connection  of  an  officer  with  the  service  has  been 
severed  by  his  resignation,  discharge,  or  dismissal,  he  can  be  reinstated  only  by  a  new 
appointment  made  by  and  with  the  advice  of  the  Senata.  The  mere  revocation 
or  the  acceptance  of  his  resignation  or  of  the  order  terminating  his  connection  with 
the  service  can  not  have  this  effect.  (20  Enc.  Law,  636,  etc.)  File  5252-72,  J.  A.  G., 
Sept.  27,  1915. 

45.  Same — The  President  may  approve,  disapprove,  or  issue  orders  in  the  case.     File 

26253-275,  Sec.  Navy,  Apr.  4,  1913. 

46.  Same— Subsequent  modification  by  the  President  of  his  former  action.    File  26253-398, 

April,  1915.    See  also  File  26260-1392:29,  February,  1912. 

47.  Promotion — Officer  due  for  promotion  but  incapacitated  for  duty.    See  RETIREMENT 

OP  OFFICERS,  33. 

48.  Right,  legal— An  officer  has  no  legal  right  to  be  ordered  before  a  board  of  medical  ex- 

aminers for  promotion  instead  of  being  ordered  before  a  retiring  board.  See  BOARDS 
OF  MEDICAL  EXAMINERS,  6;  RETIREMENT  OF  OFFICERS,  33. 

49.  Staff  Corps — Retirement  of  chiefs  of  staff  corps.    See  CHIEFS  OF  STAFF  CORPS. 

50.  Statute— Act  of  March  4, 1911— The  Naval  Appropriation  act  of  March  4, 1911  (36  Stat., 

1267),  contains  the  following: 

"Hereafter,  if  any  officer  of  the  United  States  Navy  shall  fail  in  his  physical  exami- 
nation for  promotion  and  be  found  incapacitated  for  service  by  reason  of  physical 
disability  contracted  in  the  line  of  duty,  he  shall  be  retired  with  the  rank  to  which 
his  seniority  entitled  him  to  be  promoted." 

This  enactment  was  intended  to  cover  the  cases  of  officers  who  had  served  through 
out  their  existing  grade  on  the  active  list,  but  who,  upon  examination  for  promotion 
were  discovered  to  be  physically  disqualified  for  the  duties  of  a  higher  grade.  It  does 
not  apply  to  thecase  of  an  officer  who,  because  of  physical  disability,  never  rendered 
any  real  service  in  his  existing  grade,  and  whose  physical  incapacity  for  promotion 
was  well  known  and  established  by  the  official  records  even  prior  to  his  being  com- 
missioned in  his  present  grade. 

Accordingly,  Held  that  a  midshipman  who  was  promoted  to  ensign  while  physically 
incapacitated  for  duty,  but  who  was  nevertheless  retained  on  the  active  list  notwith-' 
standing  his  continued  incapacity  and  the  adverse  report  of  a  retiring  board,  until  he 
became  due  for  promotion  to  lieutenant  (junior  grade),  should  be  ordered  before 
another  retiring  board,  and  if  found  incapacitated  for  active  duty  due  to  an  incident 
of  the  service  should  be  retired  with  his  present  rank ;  and  that  the  law  neither  requires 
nor  contemplates  that  he  be  examined  for  promotion  with  a  view  to  his  retirement 
with  the  rank  of  lieutenant  (junior  grade).  File  26253-386:1,  Sec.  Navy,  Jan.  27, 1915; 
See  also  file  26253-334:2;  C.  M.  0. 6, 1915, 16.  See  also  RETIREMENT  OF  OFFICERS,  40. 

51.  Transfer— From  one  status  to  another  on  the  retired  list.    See  File  26254-236. 

52.  Voluntary— Abstract  of  laws  relating  to.    14  J.  A.  G.,  287,  Feb.  9, 1910. 

53.  Warrant  officers.    See  File  26253-114,  J.  A.  G.,  Aug.  19, 1910,  p.  2. 

54.  "Wholly  retired  "—Defined  and  compared  with  "Discharged"  and  "Dismissed." 

See  DISCHARGE,  11. 

REVEALING  VOTE,  OPINION,  OR  SENTENCE.    See  OATHS,  47. 

REVENUE-CUTTER  SERVICE.    See  also  COAST  GUARD. 

1.  Medals  of  Honor.   Sec  MEDALS  OF  HONOR,  3. 

2.  Transfer  of  naval  vessel— Authority  of  Congress  is  necessary  for  transfer  of  naval 

vessel  to  the  Revenue-Cutter  Service.    File  3160-54,  May  4,  1907. 


550  REVIEWING    AUTHORITY. 

REVIEWING  AUTHORITY.    See  also   CONVENING   AUTHORITY;   REVISING   POWER; 

SECRETARY  OF  THE  NAVY. 

1.  Abuse  of  authority.   See  CRITICISM  OF  COURTS-MARTIAL,  35. 

2.  Action  of —Importance  of.    See  CONVENING  AUTHORITY.  2. 

3.  Approval— Necessity  of.    See  CONVENING  AUTHORITY,  2. 

4.  Changing  action  after  promulgation.   See  CONVENING  AUTHORITY,  6. 

5.  Clemency— The  power  of  exercising  clemency  is  vested  in  the  reviewing  authority, 

not  in  courts-martial  or  members.  See  ADEQUATE  SENTENCES,  3-6;  CLEMENCY,  13; 
COURT.  17. 

6.  Convening  authority— The  convening  authority  of  a  general  court-martial  is  the 

reviewing  authority,  except  where  the  sentence  is  death  or  the  dismissal  of  a  com- 
missioned or  warrant  officer.  (A.  G.  N.,  53.)  See  CRITICISM  OF  COURTS-MARTIAL,  35. 

7.  Definition— In  general,  the  senior  officer  present  is  the  incumbent  of  that  office,  and 

not  the  particular  individual  who  may  happen  at  some  particular  time  to  occupy 
the  position.  File  26287-1121,  J.  A.  G.,  Feb.  24,  1912. 

8.  Disapproval— Effect  of.   See  CONVENING  AUTHORITY,  21;  CRITICISM   OF  COURTS- 

MARTIAL,  35;  REVIEWING  AUTHORITY,  20. 

9.  Evidence — As  to  the  intervention  of  the  reviewing  authority  in  such  matters  [unob- 

jected-to  evidence],  such  action  is  believed  to  be  unnecessary,  even  if  it  be  not  im- 
proper or  irregular.  While  there  is  no  such  thing,  of  course,  as  a  bill  of  exceptions  in 
a  court-martial  proceeding,  yet  if  objections  are  made  during  the  course  of  the  trial 
they  should  be  considered  by  the  reviewing  authority.  But  if  no  objection  is  made, 
then  in  accordance  with  ordinary  procedure  there  is  nothing  in  question  for  the  re- 
viewing authority  to  decide  as  to  the  admissibility  of  evidence.  A  possible  exception 
to  this,  nowever,  in  view  of  the  greater  latitude  allowed  in  all  court-martial  procedure, 
would  be  a  case  where  the  trial  court  had  ignored  the  objectionable  character  of  certain 
evidence  on  the  ground  of  public  policy. 

The  reviewing  authority  should  not,  therefore,  have  concerned  himself  with  the 
question  of  the  admissibility  of  the  evidence  in  question;  in  other  words,  he  might 
properly  have  approved  the  proceedings,  because,  as  the  particular  evidence  was  not 
objected  to  upon  the  trial,  and  as  it  did  not  contravene  any  rule  of  public  policy,  he 
need  not  have  concerned  himself  with  the  matter.  C.  M.  O.  31,  1911.  See  also 
EVIDENCE,  82-84. 

10.  Exemptions  In  sentences— Exemption  of  $20  to  be  paid  when  discharged  is  not 

subject  to  action  of  convening  or  reviewing  authority.  See  EXEMPTIONS  IN  SEN- 
TENCES, 1,  2,  6,  7. 

11.  Just^-The  reviewing  authority  must  be  convinced  of  the  justness  of  the  finding  and 

sentence  before  approving.    C.  M.  O.  6,  1909,  3. 

12.  Mitigation  or  remission— Of  sentence  after  final  action  on.    See  CONVENING  AU- 

THORITY, 62;  SECRETARY  OF  THE  NAVY,  56. 

13.  Numbers,  loss  of — Action  on  general  court-martial,  where  it  is  desired  to  place  officer 

at  foot  of  list  and  there  lose  numbers.    See  NUMBERS,  Loss  OF,  10. 

14.  Objections  to  evidence.   See  EVIDENCE,  82, 83. 

15.  Plea  in  bar  of  trial— Reviewing  authority  may  not  compel  a  court  to  reverse  its  judg- 

ment upon  a  plea  in  bar  of  trial.  See  REVIEWING  AUTHORITY,  16;  NAVAL  MILITIA. 
39  (p.  407). 

16.  Powers  of — It  is  not  in  the  power  of  the  revising  authority  to  compel  a  court  to  reverse 

its  judgment  upon  a  plea  in  bar  of  trial,  or  to  change  its  finding  or  sentence,  when, 
upon  being  reconvened  by  him,  it  has  declined  to  modify  the  same,  nor  either  directly 
or  indirectly  to  enlarge  the  measure  of  punishment  imposed  by  sentence  of  a  court- 
martial.  (R-846.)  The  members  of  a  duly  constituted  and  organized  court-martial 
can  not  be  dictated  to  or  interfered  with  in  their  proceedings  by  the  highest  military 
authority.  (R-722.)  C.  M.  0. 4, 1914, 11,  overruling  C.  M.  0. 16, 1911,  3,  containing 
a  statementfrom  Winthrop,  p.  378,  that  where  a  court  holds  a  plea  in  bar  valid  the 
convening  authority  may  "order  it  positively  to  try  the  charges."  See  also  RE- 
VISION, 24. 

17.  Record — The  reviewing  authority  has  only  the  record  from  which  to  form  an  opinion 

as  to  the  merits  of  the  case.    C.  M.  O.  6,  1909,  3.    See  also  COURT,  16,  20. 

18.  Remission  or  mitigation — Of  sentence  after  final  action  on.    See  CONVENING 

AUTHORITY,  62;  SECRETARY  OF  THE  NAVY,  56. 

19.  Sentences — General  courts-martial  must  not  lose  sight  of  the  fact  that  their  adjudged 

sentences  are  inoperative  and  of  noeflect  until  approved  as  provided  by  law.  C.  M.  O. 
6,  1909,  3.  See  also  CONVENING  AUTHORITY,  2. 

Effect  of  disapproval  by  reviewing  authority.  See  CONVENING  AUTHORITY,  21; 
CRITICISM  OF  COURTS-MARTIAL,  35;  REVIEWING  AUTHORITY,  20. 


REVIEWING   AUTHORITY.  551 

20.  Sentence  approved,  proceedings  disapproved— In  a  summary  court-martial  case 

where  the  convening  authority  approved  the  proceedings  and  sentence  and  the  re- 
viewing authority  (senior  officer  present)  disapproved  the  proceedings  but  approved 
the  sentence,  the  department  stated  in  part: 

"  No  sentence  of  a  summary  court-martial  shall  be  carried  into  execution  until  the 
proceedings  and  sentence  have  been  approved  by  the  officer  ordering  the  court  and  by 
the  commander  in  chief,  or,  in  his  absence,  by  the  senior  officer  present."  (A.  G.  N. 
32.)  [See  also  SUMMARY  COURTS-MARTIAL,  38.) 

Where  there  is  a  sentence  the  reviewing  authority  may  and  often  does  exercise  the 
authority  of  disapproval  as  to  some  portion  or  portions  of  the  proceedings  not  essential 
to  support  the  sentence.  Thus  he  may,  in  his  review,  disapprove  a  ruling  of  the 
court  upon  an  objection  to  evidence,  or  a  ruling  upon  some  interlocutory  matter  as  a 
motion  for  a  continuance,  which,  though  erroneous,  does  not  impugn  the  final  judg- 
ment; or  he  may  disapprove  some  statement  or  omission  in  the  record,  which,  not 
being  at  variance  with  a  statutory  requirement,  does  not  constitute  a  fatal  defect. 
But  this  form  of  unfavorable  comment  is  entirely  consistent  with  a  final  approval 
of  the  sentence  or  of  a  punishment;  a  disapproval  indeed  of  certain  of  the  proceedings 
is  often  accompanied  by  an  approval  of  the  sentence  or  of  a  part  of  it.  (See  WINTHROP, 
p.  692.) 

The  remarks  of  the  reviewing  authority  (senior  officer  present)  in  this  case,  however, 
disapproved  the  entire  proceedings,  leaving  nothing  to  support  the  sentence.  Cer- 
tainly if  the  entire  proceedings  were  devitalized  by  the  disapproval,  they  retained  no 
force  to  sustain  the  finding  and  the  sentence  predicated  thereon.  No  authority  is 
found  in  FORMS  OP  PROCEDURE,  1910,  nor  in  the  preceding  volume  (Lauchheimer), 
authorizing  this  form  of  action  by  a  reviewing  authority. 

It  may  be  true  that  it  was  intended  merely  to  comment  adversely  upon  the  particular 
fact  that  the  confession  of  the  accused  was  admitted.  If  this  were  tfue,  and  it  may 
be  regarded  in  that  light,  perhaps,  then  the  sentence  may,  of  course,  be  sustained. 
The  reviewing  authority  says  in  nis  remarks,  after  disapproving  "the  proceedings  in 
the  foregoing  case,"  etc.,  that  the  sentence  is  approved  because  "there  seems  to  be 
sufficient  evidence  exclusive  of  that  given  by  Lieut.  *  *  *,  United  States  Navy, 
to  establish  the  guilt  of  the  accused,  as  found  by  the  court." 

It  is  believed  that  a  careful  reading  of  the  foregoing  indicates  that  the  intention 
of  the  reviewing  authority  was  merely  to  disapprove  the  proceedings  as  to  the  one 
particular  matter,  but  that  his  language  was  rather  inartificial  for  that  purpose,  and. 
unless  read  in  connection  with  the  latter  part  of  the  remarks,  might  well  be  regarded 
as  a  complete  disapproval  of  the  whole  proceedings.  It  is  believed  that  this  was  not 
the  intention,  however,  and  that  the  whole  indorsement,  read  altogether,  may 
properly  be  held  to  mean  that  only  that  single  act  of  the  court  is  disapproved.  This 
is  not  an  unreasonable  construction,  and  as  the  guilt  of  the  accused  appears  to  have 
been  shown,  there  would  be  no  miscarriage  of  justice  in  reading  the  remarks  in  this 
sense.  C.  M.  O.  31,  1911,  3-4.  See  also  CONVENING  AUTHORITY,  21. 

21.  Unobjected-to  evidence.    See  EVIDENCE,  82-84;  REVIEWING  AUTHORITY,  9. 

22.  Witnesses — "The  court,  having  personally  heard  the  witnesses,  is,  ordinarily  more 

competent  to  arrive  at  the  facts  from  the  evidence  presented  than  is  a  reviewing  au- 
thority, even  though  said  reviewing  authority  may  by  long  experience  be  more  ex- 
pert in  weighing  evidence  than  is  the  court."  File  26251-12159,  Sec.  Navy,  Oct.  30, 
1916.  See  also  EVIDENCE,  129. 

REVISED  STATUTES. 

1.  Nature  of — The  "  Revised  Statutes  "  is  one  act  of  Congress  (act  June  22, 1874)  entitled 

"An  act  to  revise  and  consolidate  the  statutes  of  the  United  States  in  force  on  the 
first  day  of  December,  anno  Domini  one  thousand  eight  hundred  and  seventy-three." 

2.  Object  of— "The  main  object  of  the  revision  was  to  incorporate  all  the  existing  statutes 

in  a  single  volume,  that  a  person  desiring  to  know  the  written  law  upon  any  subject 
might  learn  it  by  an  examination  of  that  volume,  without  the  necessity  of  referring 
to  prior  statutes  upon  the  subject.  *  *  *  If  it  be  but  another  volume  added  to 
the  prior  Statutes  at  Large,  the  main  object  of  the  revision  is  lost,  and  no  one  can 
be  certain  of  the  law  without  an  examination  of  all  previous  statutes  upon  the  same 
subject."  (Hamilton  v.  Rathbone,  175  U.  8.  421.  See  also  Murdock  v.  Memphis, 
20  Wall.  617.)  File  26280-61,  Sec.  Navy,  July  10,  1916. 

REVISING  AUTHORITY.    See  REVISING  POWER. 


552  REVISION. 

REVISING  FOWER.    See  also  CONVENING  AUTHORITY;  REVIEWING  AUTHORITY;   SEC- 
RETARY OF  THE  NAVY. 

1.  Clemency— If  court  adjudges  inadequate  sentence,  the  revising  authority  will  not 

grant  clemency.    See  CLEMENCY,  54. 

2.  Same— Clemency  is  to  be  exercised  by  the  "revising  power,"  not  by  the  court.    See 

ADEQUATE  SENTENCES,  5. 

3.  Recommendations — To  the  clemency  of.    See  CLEMENCY. 

4.  Record  of  proceedings — Minutes  of  opinion  and  decision  in  cases  of  objections  are  for 

information  of  revising  authority.    C.  M.  O.  49,  1915,  11. 

REVISION. 

1.  Absence  of  accused— A  general  court-martial  properly  ruled  that  an  accused  should 

not  be  present  during  the  proceeding  in  revision  while  the  letter  returning  the  case 
for  revision  was  being  read.  Otherwise  the  accused  would  be  informed  of  the  findings 
of  the  court,  etc.  File  20251-12159  (Record  of  proceeding,  first  revision,  p.  2.). 

2.  Acquittal— Adhering  to.    See  CRITICISM  OF  COURTS-MARTIAL,  19,  20,  22. 

3.  Action  of  convening  authority.    See  REVISION,  9, 10. 

4.  Authority— It  is  laid  down  as  a  thing  not  open  to  controversy  in  all  the  books  on  mili- 

tary law,  that  the  superior  authority  may  order  a  court-martial  to  reassemble  to 
revise  its  proceedings  and  its  sentence.  (6  Op.  Atty.  Gen.,  203.) 

Whether  a  generalcourt-martial  record  shall  be  returned  to  the  general  court-martial 
for  revision  by  the  department  (convening  authority)  is  a  question  of  policy  which 
addresses  itself  to  the  department  alone.  C.  M.  O.  4,  1913. 

5.  Boards  ot  inquest.   See  BOARDS  OF  INQUEST,  7. 

6.  Boards  of  investigation.   See  BOARDS  OF  INVESTIGATION,  16. 

7.  Clemency— Court  adhering  to  its  recommendation  to  clemency  in  revision.    See 

FINDINGS. 

8.  Clerical  errors— Correction  of.    See  ACCUSED,  8;  CLERICAL  ERRORS,  3;   RECORD  OF 

PROCEEDINGS,  26. 

9.  Convening  authority— Upon  the  receipt  of  the  record  of  a  court-martial  the  reviewing 

officer  shall  proceed  at  once  to  scrutinize  the  same,  in  order  to  return  it  for  revision,  if 
such  course  Tbe  necessary ,  before  the  dissolution  of  the  court.  ( R-5  36. ) 

10.  Same— The  convening  authority  (fleet)  "approved  the  proceedings  in  revision  in  this 

case,  but  disapproved  the  finding  and  sentence  in  revision."  By  the  wording  of  the 
action  of  the  convening  authority  he  approved  only  the  proceedings  in  revision,  and 
disapproved  the  finding  and  sentence  in  revision.  The  words  "  in  revision"  should 
be  omitted,  thus  making  the  action  cover  the  whole  of  the  proceedings,  both  original 
and  in  revision.  The  appropriate  action  in  this  case  would  read:  "  The  proceedings  of 
the  general  court-martial  in  the  foregoing  case  of  Lieut,  (junior  grade)  *  *  *,  United 
States  Navy,  are  approved;  the  findings  and  sentence  are  disapproved  for  the  follow- 
ing reasons:  *  *  *.  He  will  be  released  from  arrest  and  restored  to  duty."  (Forms 
of  Procedure,  1910,  p.  52;  C.  M.  O.  23, 1910,  p.  3.)  C.  M.  O.  4, 1916,  3,  5. 

11.  Courts  of  inquiry.    See  COURTS  OF  INQUIRY,  47. 

12.  Criticism  of  court-martial— Where  the  subject  of  the  unfavorable  criticism  is  an 

error  capable  of  being  corrected  by  the  return  of  the  proceedings  to  the  court,  it  is 
just  that  this  course  snould  first  be  pursued.  See  CRITICISM  OF  COURTS-MARTIAL,  35. 

13.  Dissolution  of  court— No  revision  after  dissolution.    See  COURT,  69-71,  144. 

14.  Evidence— Illegal  to  introduce  new  evidence  in  revision.    C.  M.  0. 23, 1904, 1;  2, 1905,  3; 

22, 1905;  23, 1905; 54, 1905;  142, 1900;  61, 1894,  2;  37, 1909,  4;  15, 1910, 12;  26, 1910,  7;  5, 1911, 
5;  8,  1911.  8;  10,  1912  5;  5,  1914,  5. 

15.  Same — Article  R-837,  United  States  Navy  Regulations,  1913,  provides  as  follows: 

"(1)  When  a  court  is  ordered  to  revise  its  proceedings,  new  testimony  shall  not  be 
brought  forward  in  any  shape. 

"  (2)  The  revision  shall  be  strictly  confined  to  a  reconsideration  of  the  matter  alread  y 
recorded  in  the  proceedings,  no  part  of  which  is  to  be  amended,  altered,  or  annulled  in 
any  way." 

The  Forms  of  Procedure  for  Courts  and  Boards  in  the  Navy  and  Marine  Corps 
provide  as  follows: 

"No  new  testimony  admitted:  When  a  court  is  ordered  to  revise  its  proceedings 
no  new  testimony  shall  be  brought  forward  in  any  shape"  (p.  175). 

The  decisions  in  the  Army  on  this  subject  are  stated  as  follows  (Dig.  Army, 
1912,  p.  523,  par.  5): 

"It  is  now  settled  in  our  law  that  a  court-martial  is  not  empowered,  at  this  pro- 
ceeding (that  is,  proceeding  in  revision),  to  take  or  receive  testimony."  C.  M.  O.  5, 
1914, 5. 


REVISION.  553 

16.  Same — Summary  court-martial  proceedings  disapproved  because  additional  evidence 

received  on  revision.    File  27201-199  and  201. 

17.  Findings— If  court  adheres  to  former  findings  (or  findings  and  acquittal)  in  revision, 

such  statement  should  be  in  handwriting  of  judge  advocate.    C.  M.  O.  29,  1914.  5-6. 

18.  Handwriting — Findings  and  sentence  in  revision  should  be  in  handwriting  of  judge 

advocate  or  recorder  even  if  adhered  to.    See  FINDINGS,  48-50;  SENTENCES,  52. 

19.  Judge  advocate — It  is  not  necessary  that  the  same  judge  advocate  officiate  on  the 

revision  of  a  case  as  took  part  in  the  original  proceedings.  If  a  new  officer  be  detailed 
in  that  capacity,  however,  the  orders  of  the  convening  authority,  modifying  the  pre- 
cept in  that  respect,  shall  be  read  and  a  copy  appended  to  the  record  in  revision. 
(R-838  (2).) 

20.  Members — Constitution  of  court  in  revision.    See  REVISION,  22. 

21.  New  Judge  advocate.    See  REVISION,  19. 

22.  New  members — An  officer  who  was  not  a  member  of  the  general  court-martial  which 

tried  the  accused,  but  subsequently  was  appointed  to  such,  renders  the  proceedings 
in  revision  illegal,  if  he  sits  upon  the  court  during  the  proceedings  in  revision.  C.M.  O. 
47, 1910. 10. 

23.  New  trial— A  revision  is  not  a  new  trial.    A  new  trial  is  a  rehearing  of  the  case.    The 

court-martial  in  revision  does  not  rehear  the  case;  it  only  considers  the  record  for 
the  purpose  of  correcting  or  modifying  any  conclusions  thereon.  A  true  analogy  from 
the  civil  courts  is  the  case  of  a  jury  sent  out  to  reconsider  its  verdict.  (6  Op.  Atty. 
Gen.,  205.) 

24.  Plea  In  bar — "While  many  precedents  may  be  found  for  the  return  of  proceedings 

to  a  court-martial  by  the  revising  authority,  with  a  presentment  of  his  reasons  for 
differing  from  the  court  in  sustaining  the  plea  in  bar,  I  can  find  no  precedent  case  in 
which,  under  similar  circumstances,  the  convening  authority  ordered  the  court  to 
proceed  with  the  trial,  nor  do  I  know  of  any  provision  of  law  or  any  regulation  con- 
ferring such  authority."  The  English  practice  agrees  with  the  above:  "  If  the  court 
allow  the  plea,  the  convening  officer  can  not  overrule  the  finding,  inasmuch  as  to  do 
so  would  be  to  compel  the  court  to  try  the  prisoner,  and  thus  render  its  members  liable 
to  possible  action  for  damages  after  the  expression  of  their  own  opinion  that  they  had 
no  Jurisdiction.  But  the  convening  officer  may  convene  another  court."  (Manual 
of  Military  Law,  War  Office,  1887,  p.  623.)  C.  M.  O.  9, 1893,  11,  12.  See  also  RE- 
VIEWING AUTHORITY,  15, 16. 

25.  Previous  convictions — May,  in  certain  cases,  be  introduced  in  revision.    See  PREVIOUS 

CONVICTIONS,  19. 

26.  Quorum.    See  REVISION,  30. 

27.  Reasons  asked  for — Where  the  court  rendered  a  full  and  honorable  acquittal  in  a  case 

where  it  was  believed  that  the  evidence  clearly  warranted  a  conviction,  the  depart- 
ment in  returning  the  record  for  revision  stated  among  other  things:  It  is  directed  that 
"should  the  particular  feature  which  has  governed  the  court  in  its  previous  finding 
not  be  adequately  covered  in  the  above  and  should  the  court  therefore  still  adhere 
to  its  previous  finding  *  *  *  it  spread  upon  the  record  for  the  information  of  the 
department  the  reasons  complete  and  in  detail  which  governed  it  in  arriving  at  its 
finding."  File  26251-12159,  Sec.  Navy,  Oct.  30, 1916,  p.  6. 

28.  Reasons  for  adhering — "The  department  in  returning  the  record  of  the  proceedings 

to  the  court  pointed  out  the  irregularity  of  procedure,  mcompetency  of  evidence,  and 
illegal  conclusion  reached,  and  notwithstanding  this  the  court,  after  reconvening, 
adhered  to  its  original  finding  without  even  attempting  to  set  forth  its  reasons  for  so 
doing  or  show  any  justification  for  its  course,  which  action  the  undersigned  is  wholly 
unable  to  understand."  C.  M.  0. 37, 1909,  6. 

29.  Reconvening  order— Should  be  prefixed.    See  REVISION,  30. 

30.  Record  of  proceedings — If  the  court  be  reconvened  to  amend  or  otherwise  remedy  a 

defect  or  omission  hi  the  record ,  which  may  be  done  if  the  facts  warrant,  the  recon- 
vening order  must  be  prefixed  to  the  record,  which  shall  also  show  that  at  least  five 
members  of  the  court,  the  judge  advocate,  and  the  accused  were  present,  and  that  the 
amendment  was  then  made  to  conform  to  and  express  the  truth  in  the  case.  The 
five  members  above  mentioned  must  be  among  those  who  authenticated  the  original 
sentence.  (R-838(l).)  See  C.  M.  O.  49,  1915, 12. 

31.  Same— Original  record  not  to  be  amended,  altered,  or  annulled.    C.  M.  O.  47,  1910,  5; 

17, 1910, 5;  5,  1911,  5;  5,  1912, 14;  5, 1914,  5.    See  also  CORRECTIONS,  4. 

32.  Same— Record  of  proceedings  in  revision  should  be  prefixed,  not  appended,  to  the 

record  of  which  it  is  a  part.    C.  M.  O.  23, 1910,  4;  29, 1914,  3. 


554  REVISION. 

33.  Sentence— When  the  court,  hi  revision,  adjudges  another  sentence,  it  must  be  stated 

in  the  record  that  the  court  revokes  the  former  sentence,  as  otherwise  the  accused  will 
stand  sentenced  twice  for  one  offense,  which  is  illegal.  C.  M.  O.  42, 1894, 3;  37, 1909,  7. 

34.  Same— Where  there  are  two  former  sentences,  in  order  to  prevent  ambiguity,  the 

phraseology  should  be  altered  so  as  to  indicate  which  sentence  the  court  adheres  to; 
as,  for  example, "  the  court  d  oes  respectfully  adhere  to  its  former  sentence ,  as  awarded 

35. 

be  in  the  handwriting  of  the  judge  advocate.  C.  M.  O.  4271909, 11;  23, 1910, 3;  30, 1910, 
8;  29,  1914,  6;  42,  1914,  4;  8, 1915,  3;  6,  1916,  2. 

36.  Same — "  It  is  noted  in  the  record  of  proceedings  in  revision  of  the  general  court-martial 

in  the  foregoing  case  of  Pay  Clerk  *  *  *,  United  States  Navy,  that  the  record  of 
the  action  of  the  court  in  adhering  to  its  former  sentence  is  typewritten.  This  should 
have  been  in  the  handwriting  of  the  judge  advocate."  (Forms  of  Procedure,  1910, 
p.  51,  changes  dated  July  10, 1914.)  [Seealso  Index-Digest,  1914,  pp.  34, 38.]  C.  M.  O. 
6,  1916,  2.  Set  also  HANDWRITING,  9. 

37.  Summary  court-martial — Record  in  revision  should  be  prefixed,  not  appended. 

See  SUMMARY  COURTS-MABTIAL,  67,  81. 

REVOCATION. 

1.  Appointment— Of  paymaster's  clerk.    See  C.  M.  O.  15,  1902. 

2.  Same— Of  officers.    See  COMMISSIONS,  20. 

3.  China  campaign  badge.   See  CHINA  CAMPAIGN  BADGES. 

4.  Commissions— Impossible,  if  signed  and  sealed.  •  See  COMMISSIONS,  22,  32, 33. 

5.  Discharge.   See  DISCHARGE,  23,  24,  25. 

6.  Discharge  obtained  by  fraud.    See  DISCHARGE  OBTAINED  BY  FRAUD. 

7.  Dishonorable  discharge — Where  an  enlisted  man  has  been  sentenced  by  general 

court-martial  to  dishonorable  discharge,  and  such  sentence  has  been  approved  and 
executed,  it  can  not  afterwards  be  revoked  and  an  honorable  discharge  substituted. 
File  26516-9,  J.  A.  G.,  May  28,  1909.  Set  also  DISCHARGE,  24;  DISHONORABLE  DIS- 
CHARGE, 20. 

8.  Dismissal.   See  DISMISSAL,  31;  MIDSHIPMEN,  75. 

9.  Philippine  Campaign  Badge.   See  PHILIPPINE  CAMPAIGN  BADGES,  3. 

10.  Post  traders.   See  POST  TRADERS,  1. 

11.  Resignations.   See  RESIGNATIONS,  21,  22. 

12.  Retirements.   See  RESIGNATIONS,  22. 

13.  Secretary  of  the  Navy— Revocation  of  action  in  courts-martial.     See  SETTING 

ASIDE,  8. 

14.  Sentences.   See  SENTENCES,  93, 94. 

REWARDS. 

1.  Actual  delivery — No  reward  is  paid  by  the  Navy  for  the  arrest  of  a  deserter  but  only 

for  his  actual  delivery.    File  5621-9,  Sec.  Navy,  Sept.  10,  1907. 

2.  Administrator — It  is  proper  and  legal  that  a  reward  for  a  deserter  returned  to  the 

naval  authorities  by  a  sheriff  be  paid  to  the  administrator  of  the  estate  of  said  sheriff. 
Care  should  be  taken,  however,  to  insure  the  payment  of  the  reward  to  a  person  duly 
appointed  as  administrator.  File  26516-177,  J.  A.  G.,  June  26, 1915;  C.  M.  O.  22, 1915, 
10. 

3.  Deputy  United  States  marshal— Reward  may  be  paid  to.    File  26516-103:1. 

4.  Detectives.   See  REWARDS,  11, 12. 

5.  Excluding  certain  persons  or  firms  from  offer— If  Bureau  of  Navigation  desires  to 

bar  any  person  or  firm  from  delivering  deserters  and  receiving  rewards  therefor,  this 
may  be  accomplished  by  inserting  a  clause  in  the  offer  of  reward  to  the  effect  that  such 
reward  will  not  be  paid  to  any  individual  or  firm  which  has  been  denied  the  right  to 
arrest  deserters  by  the  Navy  Department.  File  26516-92:1,  J.  A.  G.,  Sept.  27,  1912. 
See  also  File  26516-216. 
f>.  Expiration  of  offer.  See  REWARDS,  8. 

7.  General  public.    See  REWARDS,  9, 10. 

8.  Lapse  of  offer— Where  the  offer  of  a  reward  for  the  apprehension  and  delivery  of  a 

deserter  by  a  commanding  officer  expires  before  a  civil  officer  delivers  the  deserter 
to  a  recruiting  officer  of  the  Navy,  who  tells  the  civil  officer  ho  is  ent  itled  to  the  reward 
of  $50  for  the  delivery,  the  reward  can  not  be  paid,  for  the  otter  was  not  in  effect  when 
the  delivery  was  made,  the  recruiting  officer  was  not  the  "commanding  officer" 


REWARDS.  555 

within  the  meaning  of  R-3635,  so  that  his  statement  to  the  civil  officer  was  not  in 
itself  an  offer  of  a  reward,  and  the  status  of  the  case  is  the  same  as  the  case  considered 
in  the  comptroller's  decision  of  February  5,  1914  (156  S.  &  A.  Memo.  2981),  where  no 
reward  was  offered,  and  it  was  accordingly  held  that  no  reward  could  be  paid,  but 
that  the  expenses  incurred  by  the  civil  officer  in  making  delivery  might  legally  be 
allowed. 

It  has  been  provided  in  Army  Regulations  that  "a  reward  of  $50  will  be  paid  to  any 
civil  officer  or  civilian  for  the  apprehension  and  delivery"  of  deserters.  Under  a 
regulation  of  this  character  rewards  may  be  paid  whether  offered  hi  a  specific  case 
or  not,  the  regulation  itself  constituting  a  general  9ffer  of  a  reward  in  all  cases  within 
its  provisions.  Difficulties  of  the  character  arising  where  an  offer  of  reward  has 
lapsed  before  delivery  of  the  deserter  and  of  like  nature  are  therefore  due  to  the  limita- 
tions contained  in  the  Navy  Regulations  on  the  subject.  Recommended,  That  Navy 
Regulations  be  amended.  File  26516-164,  J.  A.  G.,  Dec.  30, 1914. 

9.  Offers  for— Where  reward  is  offered  to  general  public  for  arrest  of  a  deserter  from  the 
naval  service,  such  reward  may  be  paid  to  any  person  complying  with  terms  of  offer 
without  inquiry  as  to  authority  of  such  person  to  make  arrests.  File  26516-92  and 
92:1,  J.  A.  G.,  Sept.  27, 1912. 

10.  Private  citizens— While  private  citizens  may  be  entitled  to  receive  a  reward  for  return- 

ing a  deserter  from  the  Navy,  the  payment  of  such  reward  would  not  protect  him 
from  liability  to  the  deserter  for  false  imprisonment,  if  he  was  not  authorized  to  make 
arrests.  File  26516-92  and  92:1,  J.  A.  G.,  Sept.  27,  1912. 

11.  Private  detective  agency— "A  reward  for  the  arrest  of  a  deserter  or  straggler  with 

authorized  expenses  incurred  in  his  return  to  the  service  may  be  paid  to  a 
private  detective  agency  notwithstanding  the  prohibition  in  the  act  of  March  3, 1893 
(27  Stat.,  591),  against  the  employment  in  any  Government  service  of  an  'employee 
of  the  Pinkerton  Detective  Agency,  or  similar  agency.'"  File  26516-38,  J.  A.  G., 
Dec.  3,  1910;  26516-92:1.  Sept.  27, 1912. 

12.  Private  detectives — "  It  has  long  been  the  practice  to  pay  rewards  to  private  detectives 

for  the  arrest  and  return  of  deserters  and  stragglers  from  the  Navy,  and  reimburse- 
ment of  expenses  thus  incurred  has  repeatedly  been  allowed  without  question." 
File  16154,  Sec.  Navy,  May  27, 1903,  quoted  in  File  26516-38,  J.  A.  G.,  Dec.  3, 1910,  p.  4. 

13.  Sheriff— Payment  of  reward  to  the  administrator  of  the  estate  of  a  sheriff.   See  RE- 

WAKDS,  2. 

14.  Substantial  compliance— A  legal  offer  for  a  reward  for  the  return  of  a  deserter  was 

made  and  the  deserter  brought  to  the  proper  place  for  delivery  and  offered  to  the 
commanding  officer.  Held,  Such  is  a  substantial  compliance  with  the  offer  made  in 
the  reward  paper  sent  out.  While  a  literal  delivery  of  the  deserter  was  not  made, 
the  person  who  had  him  in  charge  was  prepared  to  fully  complete  that  part  of  the 
contract.  The  offer  being  in  the  nature  of  a  contract,  after  partial  completion  of  the 
terms  it  could  not  then  be  revoked  by  the  refusal  to  receive  the  deserter  on  board 
the  ship.  The  reward  may  be  paid  to  the  proper  person  by  the  commanding  officer. 
File  26516-195,  Sec.  Navy,  Oct.  15, 1915. 

RIGHT  AND  WRONG  TEST.    See  INSANITY,  35;  RESPONSIBILITY  FOB  CRIME,  1. 
ROAD  POLL,  TAX.    See  POLL  TAXES,  1. 

ROBBERY. 

1.  Charge  and  specification.    See  CHARGES  AND  SPECIFICATIONS,  88,  92. 

2.  Definition.    See  ROBBERY,  5,  7. 

3.  Drunkenness— Admissible  only  to  prove  the  absence  of  the  necessary  specific  intent. 

See  DRUNKENNESS,  49. 

4.  Enlisted  man— Charged  with.    C.  M.  O.  8, 1913,  5;  9,  1916,  6. 

5.  Essentials— It  is  established  by  a  large  number  of  decisions  that  the  element  in  the 

legal  definition  of  the  crime  of  robbery  which  requires  the  taking  to  be  "  from  the 
person"  or  "  hi  the  presence"  of  the  owner  or  custodian  should  not  be  narrowly  con- 
strued. C.  M.  O.  8,  1913,  6. 

6.  Intent.   See  INTENT,  2;  ROBBERY,  7, 8. 

7.  Proof  of— At  midnight  three  enlisted  men,  including  the  accused,  entered  a  shop  and 

ordered  "three  ice  creams"  and  afterwards  one  of  them  stole  some  chewing  gum. 
Upon  being  remonstrated  with  by  the  shopkeeper  the  man  struck  the  shopkeeper, 
whereupon  the  latter  escaped  into  his  room.  The  shopkeeper  hearing  the  cash  register 
ring  he  returned  to  the  store  and  saw  the  accused  leaving  the  store.  The  accused 


556  BOBBERY. 

was  charged  with  "Robbery,"  the  specification  alleging  that  he  did  "by  violence, 
feloniously  take,  steal,  and  carry  away  from  a  cash  register"  a  sum  of  about  $35.  At 
the  trial  all  the  essential  elements  of  robbery  were  proved;  the  intimidation  of  the 
custodian,  violence,  the  felonious  taking  and  carrying  away  with  intent  to  deprive 
the  owner  of  his  property,  together  with  the  presence,  actual  or  constructive,  of  the 
custodian.  Held,  That  the  fact  that  the  custodian  was  not  in  actual  sight  of  the 
cash  register  at  the  exact  moment  the  money  was  taken  is  immaterial,  and  it  would 
be  a  narrow  interpretation  of  the  definition  of  the  crime  of  robbery  to  hold  that  the 
offense  actually  committed  by  the  accused  was  not  robbery.  Held,  further.  That, 
as  the  element  which  constitutes  the  essential  difference  between  "theft"  and  "rob- 
bery" was  not  alleged  in  the  specification,  thespecification  did  not  support  thecharge , 
there  was  no  legal  trial  and  conviction  therein,  and  the  finding  was  disapproved. 
C.  M.  0. 8, 1913, 6-7.  See  also  CHARGES  AND  SPECIFICATIONS,  92. 

S.  Specific  intent— Required.    C.  M.  O.  42, 1909.  10;  8,  1911,  5. 

9.  Theft— The  essential  feature  of  the  crime  of  "robbery  "  which  distinguishes  it  from  theft 
both  in  common  law  and  statutory  definition  is  the  taking  from  the  person  or  in  the 

S'esence  of  the  owner  or  custodian.    (U.  8.  v.  Jones,  26  Fed.  Cas.  No.  15494;  State  r. 
cCoy,  63  W.  Va.  69;  Houston  v.  Com.  87  Va.  257;  Com.  v.  Humphries,  7  Mass.  242.) 
The  considerable  difference  between  the  authorized  punishments  for  the  two 
offenses  is  an  additional  reason  for  alleging  the  respective  crimes  strictly  according  to 
their  accepted  legal  definitions.    C.  M.  O.  8,  1913,  6. 

RULES  FOR  TARGET  PRACTICE. 

1.  Regulations— Full  force  and  effect  of  regulations.    See  REGULATIONS,  NAVY,  14. 

RULES  OF  EVIDENCE.    See  EVIDENCE,  106-109. 

RULES    OF    STATUTORY    CONSTRUCTION    AND    INTERPRETATION.    See 

STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

SABBATH  DAY.    See  also  SUNDAY  LAWS. 

1.  Adjournment  of  courts-martial.    See  ADJOURNMENT  OP  COURTS-MARTIAL. 

2.  Observance  of— "The  President,  Commander  in  Chief  of  the  Army  and  Navy,  desires 

and  enjoins  the  orderly  observance  of  the  Sabbath  by  the  officers  and  men  in  the 
military  and  naval  service.  The  importance  for  man  and  beast  of  the  prescribed 
weekly  rest,  the  sacred  rights  of  Christian  soldiers  and  sailors,  a  becoming  deference 
to  the  best  sentiments  of  a  Christian  people,  and  a  due  regard  for  the  Divine  will, 
demand  that  Sunday  labor  in  the  Array  and  Navy  be  reduced  to  the  measure  of  strict 
necessity. 

"The  discipline  and  character  of  the  national  forces  should  not  suffer,  nor  the  cause 
they  defend  be  imperiled,  by  the  profanation  of  the  day  or  name  of  the  Most  High. 

'"At  this  time  of  public  distress, 'adopting  the  words  of  Washington  in  1776,  'men 
may  find  enough  to  do  in  the  service  of  God  and  their  country,  without  abandoning 
themselves  to  vice  and  immorality.'  The  first  General  Order  issued  by  the  Father 
of  his  Country  after  the  Declaration  of  Independence  indicates  the  spirit  hi  which  our 
institutions  were  founded  and  should  ever  be  defended:  '  The  General  hopes  and  tr-astg 
that  every  officer  and  man  will  endeavor  to  live  and  act  as  becomes  a  Christian  soldier 
defending  the  dearest  rights  and  liberties  of  his  country.'  *  *  *  ABRAHAM  LINCOLN." 
O.  0. 5,  Feb.  10, 1863,  publishing  a  general  order  of  President  dated  November  15. 
1862. 

SAILBOAT. 

l.  Gift  to  Government.   See  GIFTS  TO  GOVERNMENT,  1. 

SAILMAKERS  AND  CHD3F  SAILMAKERS. 

1.  Chief  saUmaker— Tried  by  general  court-martial.    C.  M.  O.  73,  1901;  4,  1908. 

2.  Command.    See  COMMAND,  21. 

3.  General  court-martial— Tried  by.    C.  M.  O.  10,  1879;  52,  1880;  30,  1881;  32,  1881; 

53,  1888;  39,  1892;  18,  1897;  90,  1897. 

4.  Staff  officers— Classed  as  staff  officers.    See  COMMAND,  21. 

5.  Warrant  officer— A  sailmaker  is  a  warrant  officer.    C.  M.  O.  18, 1897,  5. 


SCANDALOUS    CONDUCT.  557 

SALARIES.    See  also  EMOLUMENT;  "OFFICE,"  3,  4,  17,  18;  PAY. 

1 .  Waiving  or  withholding— Under  existing  judicial  decisions  the  salary  of  a  Government 
officer  which  is  fixed  by  law  can  not  be  withheld  by  executive  officers  nor  waived  by 
the  officer  himself  (Rush  v .  United  States,  35  Ct.  CIs.  223;  Andrews  v.  United  States, 
47  Ct.  CIs.  51 ,  new  trial  allowed  and  judgment  rendered  in  favor  of  claimant,  March  16, 
1914).  File  27231-47. 

SALE  OF  COMMISSIONS.    See  COMMISSIONS,  34;  CONGRESS,  11. 

SALVAGE. 

1.  Right  of  officers  and  crew  to.    See  File  27601-116:2,  J.  A.  G.,  May  17, 1915;  27673-342, 

J.  A.  G.,  Dec.  23,  1915. 

2.  Same — "Under  section  1536  R.  S.  it  is  made  a  part  of  the  duty  of  the  Navy  to  assist 

vessels  in  distress.  In  an  opinion  rendered  as  early  as  July  8, 1856  (7  Op.  Atty .  Gen., 
page  756),  the  Attorney  General  held  that  'officers  and  crews  of  the  public  ships  of  the 
United  States  are  not  entitled  to  salvage,  civil  or  military,  as  qf  complete  legal  right,' 
and  added  that  'the  allowance  of  salvage,  civil  or  military,  in  such  cases,  like  th» 
allowance  of  prize  money  on  captures,  is  against  public  policy  and  ought  to  be 
abolished  in  the  sea  service  as  it  was  long  ago  in  the  land  service.'  The  distribution 
of  prize  money  has  since,  by  act  of  March  3, 1899  (30  U.  S.  Statutes  at  Large,  p.  1007), 
been  abolished,  but  there  has  been  no  late  legislation  respecting  salvage. 

"In  the  recent  history  of  the  Navy  no  claim  has  been  allowed  for  salvage,  the  de- 
partment having  taken  the  ground,  in  a  number  of  cases,  that  such  claims  should  not 
be  made.  In  one  or  two  instances,  where  a  bonus  was  voluntarily  tendered  for  dis- 
tribution among  the  officers  and  men  of  a  naval  vessel,  such  gift  has  been  informally 
accepted."  (See  also  File  7173,  J.  A.  G.)  File  4496-79,  Sec.  Navy,  Oct.  17,  1907. 

3.  Same — In  a  recent  salvage  case  the  "actual  cost  of  certain  salvage  services "  rendered  a 

merchant  vessel  by  a  naval  vessel,  $890.15,  the  amount  thereof,  was  collected  and  de- 
posited to  the  credit  of  the  United  States.  File  27601-116. 

SAMOA. 

1.  General  Order  No.  121.    See  GENERAL  ORDER  No.  121,  Sept.  17, 1914, 22. 

2.  Officer— Tried  by  general  court-martial  at  Tutuila,  Samoa.    C.  M.  O.  33,  1915. 

3.  Reports  from  executive  officers.    See  GUAM,  10. 

SCANDALOUS  CONDUCT  TENDING  TO  THE  DESTRUCTION  OF  GOOD 
MORALS. 

1.  Attempted  suicide — Charged  under.    See  ATTEMPTED  SUICIDE. 

2.  "  Beat  up  " — A  statement  made  by  one  man  to  another  that  he  will  "beat  up"  a 

third  party  can  not  be  construed  as  scandalous  conduct  tending  to  the  destruction  of 
good  morals  within  the  meaning  of  paragraph  1  of  article  8  of  the  Articles  for  the 
Government  of  the  Navy.  C.  M.  O.  21,  1910, 11. 

3.  Debts — Neglect  and  failure  to  pay  charged  under.    See  DEBTS,  24.    This  offense  in 

general  should  be  charged  under  "conduct  unbecoming  an  officer  and  a  gentleman." 

4.  Enlisted  men— Charged  with.    C.  M.  0. 25, 1914,  3;  10, 1915,  4;  3, 1916,  6. 

5.  Fraudulent  enlistment— At  one  time  was  charged  under.    See  FRAUDULENT  EN- 

LISTMENT, 14,  82. 

6.  Fraudulently— Misappropriating  and  applying  to  his  own  use  money  lawfully  col- 

lected as  duly  authorized  agent  of  launaryman,  charged  under.    C.  M.  O.  18, 1908,  2. 

7.  Judge  advocate— Tried  by  general  court-martial  on  charge  of.    C.  M.  O.  104,  1896. 
S.  Midshipman— Charged  with.    C.  M.  O.  36,  1909. 

9.  Money— An  officer  having  received  large  sums  of  money  belonging  to  enlisted  men  as 
deposits  with  him  for  safe-keeping  while  he  was  commanding  officer  was  unable  to 
account  for  $8,000.  Tried  by  general  court-martial.  G.  O.  67,  Dec.  5,  1865. 

10.  Officers— Tried  by  general  court-martial.    G.  O.  67,  Dec.  5,  1865;  C.  M.  O.  57,  1880; 

4,  1909;  5,  1909;  48,  1910;  52,  1910;  2,  1911;  15,  1911;  27,  1911;  6,  1912;  13,  1912;  22,  1912; 
39,  1912;  4,  1913;  7,  1913;  15,  1913;  31,  1913;  37,  1913;  6,  1914;  7,  1914;  8,  1914;  24,  1914; 
27, 1914;  30, 1914;  50,  1914;  19, 1915;  47, 1915;  1, 1916;  18,  1916;  G.  C.  M.  Rec.  28881. 

11.  Same— Officer  tried  by  general  court-martial  for  engaging  in  a  brawl  and  disturbance 

in  a  public  bar  room.    C.  M.  O.  23,  1882. 

12.  Paymaster's  clerks— Charged  with.    C.  M.  O.  29,  1911,  3;  30,  1911;  35,  1913;  24,  1915; 

26,  1915. 

13.  Warrant  officers— Charged  with.    C.  M.  O.  34,  1909;  35,  1909;  5,  1913;  29,  1913;  22,  1914; 

32, 1914. 

14.  Warrant  officers  (commissioned)— Charged  with.    C.  M.  O.  29,  1913;  16,  1914. 

15.  Same— Retired  chief  boatswain  charged  with.    C.  M.  O.  15,  1915. 


558  SEAMAN   GUNNERS. 

SCHOOL  TAX.    See  POLL  TAXES,  1. 

SCREENING  AN  OFFENDER. 

1.  Dismissal — Of  an  acting  assistant  surgeon  for  screening  an  offender  (an  acting  master) 
who  kicked  and  abused  a  seaman.  G.  O.  35,  May  5, 1864. 

SEA  LAWYER. 

1.  Defense  of  an  offlcer-^Convening  authority  declared  that  defense  of  an  officer  con- 
sisted of  "a  mass  of  flimsy  technicalities,  'sea  lawyer'  objections,  and  efforts  to  escape 
by  unofficerlike  methods  the  penalties  sure  to  follow  his  misdeeds,  when  the  case  was 
stripped  of  these  and  the  facts  remained."  C.  M.  0. 16, 1911, 3. 

SEA-DUTY. 

1.  Naval  Academy— Sea  duty  as  part  of  the  course  at  the  Naval  Academy.    See  NAVAL 

ACADEMY,  22. 

2.  Sea  duty  pay.    C.  M.  O.  21, 1916.    See  also  PAY,  64,  96. 

SEALS. 

1.  Beneficiary  slips.    See  DEATH  GBATOITY,  28. 

2.  Commissions — Signed  and  sealed,  can  not  be  revoked.    See  COMMISSIONS,  22. 

SEAMAN  GUNNERS. 

1.  Classification— Hereafter  seamen  gunners  will  not  be  classed  with  petty  officers,  but 

with  seamen  first  class.    O.  O.  341,  Jan.  1,  1886. 

2.  Definition.   See  SEAMAN  GUNNERS,  4. 

3.  Reduction  In  rating— Seaman  gunners  can  not  be  reduced  to  a  lower  rating  except 

by  sentence  of  a  court-martial.    O.  0. 341,  Jan.  1, 1886. 

4.  Same— A  quartermaster  third  class,  United  States  Navy,  was  convicted  by  a  general 

court-martial  of  "Absence  from  station  and  duty  without  leave"  and  sentenced  to 
be  reduced  to  the  rating  of  seaman  gunner  and  to  be  confined  at  hard  labor  for  a  period 
of  six  months,  with  corresponding  forfeiture  of  pay  and  dishonorable  discharge. 

The  department  on  March  30, 1914,  approved  the  sentence  but  mitigated  the  same 
to  detention  in  the  disciplinary  barracks,  Port  Royal,  9.  C.  The  accused  was  un- 
conditionally restored  to  duty  from  said  barracks  on  September  14,  1914,  with  the 
rating  of  seaman  gunner. 

It  later  appeared  from  the  statement  of  his  commanding  officer  that  the  accused 
never  attended  the  school  for  the  instruction  of  seaman  gunners,  and  that  he  had  not 
successfully  completed  such  a  course,  and  was,  therefore,  not  entitled  to  a  certificate 
as  seaman  gunner,  as  provided  in  Navy  Regulations,  1913,  R-3564,  nor  was  he  entitled 
to  the  emoluments  therefor,  as  provided  in  Navy  Regulations,  R-3565.  These  facts 
were  not  disclosed  by  the  record  of  the  general  court-martial  in  this  case  which  was 
approved  by  the  department. 

Under  the  foregoing  circumstances  the  question  was  raised  as  to  what  was  the 
correct  rating  of  the  accused. 

The  table  of  "Classification  for  disrating,"  contained  in  Navy  Regulations,  1913, 
R-619,  shows  "seaman  gunner"  as  one  of  the  established  ratings,  but  in  authorizing 
reductions  to  that  rating  states:  "When  holding  a  certificate  as  such,  otherwise 
seaman."  This  table  is  stated  in  the  article  cited  to  be  published  for  the  guidance 
of  summary  courts-martial.  However,  in  court-martial  order  No.  30,  November  1, 
1912,  page  6,  it  is  expressly  stated,  with  reference  to  the  sentence  of  a  general  court- 
martial:  "Reduction  to  the  rating  of  seaman  gunner  is  applicable  only  in  those  cases 
of  men  holding  a  certificate  as  such." 

Navy  Regulations,  1913,  R-901  (3),  provides  that  court-martial  orders  "shall  have 
full  force  and  effect  as  regulations  for  the  guidance  of  all  persons  in  the  naval  estab- 
lishment;" and  the  department  has  emphatically  announced  that  court-martial 
orders  are  published  by  the  department  for  the  information  and  guidance  of  all 
officers  in  the  service,  and  that  they  may  be  held  accountable  for  ignorance  thereof 
when  occasion  arises  in  which  they  should  be  governed  by  instructions  contained  hi 
such  orders.  (C.  M.  O.  33,  1912,  p.  3;  File  26251-9538,  pp.  5-6;  26287-2704.) 

It  thus  appears,  both  from  the  nature  of  the  case  and  an  express  order  on  the  subject 
issued  by  the  department  and  having  full  force  and  effect  as  a  regulation,  that  reduc- 
tion of  a  petty  officer  to  the  rating  of  seaman  gunner  is  not  authorized,  even  by  sen- 
tence of  general  court-martial,  where  such  petty  officer  does  not  hold  a  certificate 
as  seaman  gunner.  Action  of  a  court-martial  alone  is  not  sufficient  to  make  an 
enlisted  man  a  seaman  gunner.  Before  he  can  hold  that  rating  he  must,  under  the 
regulations,  take  a  course  of  instruction  and  receive  a  certificate  as  such. 


SEAMAN   GUNNERS.  559 

There  is  no  doubt  that  the  purpose  of  the  court  was  to  comply  with  Navy  Regu- 
lations, 1913,  R-816  (3),  which  provides  that— 

"  In  all  cases  in  which  the  sentence  imposed  on  a  petty  officer  involves  confinement, 
it  should  include  reduction  to  one  of  the  ratings  below  petty  officer  in  the  branch  to 
which  he  belongs;  and  in  the  case  of  a  noncommissioned  officer  of  the  Marine  Corps, 
to  private." 

"The  law  certainly  does  not  contemplate  that  an  enlisted  man  shall  be  reduced  to 
a  rating  he  is  not  competent  to  nil."  (Comp.  Dec.,  Jan.  23,  1915,  App.  No.  24240; 
File  26254-1703.) 

Had  the  court  sentenced  the  accused  to  reduction  to  "seaman"  the  sentence  would 
have  been  legal  and  would  have  fulfilled  the  requirements  of  Navy  Regulations,  1913, 
R-816.  Or  had  the  error  been  disclosed  by  the  record,  the  case  could  have  been 
returned  to  the  court  for  correction,  in  accordance  with  precedent,  before  the  sentence 
was  approved.  (C.  M.  O.-30,  1912,  p.  6.) 

But,  nowever  plain  the  purpose  of  the  court,  the  sentence  imposed  was  expressed 
in  language  equally  plain,  and  was  stated  to  be,  that  the  accused  "be  reduced  to  the 
rating  of  seaman  gunner.  United  States  Navy."  This  sentence,  for  reasons  given 
above,  was  improper  and  inoperative.  To  change  the  sentence  so  as  to  reduce  the 
man  to  the  rating  of  "seaman"  would  be  to  substitute  a  different  sentence  for  that 
imposed  by  the  court,  and  would  not  be  authorized.  Therefore  the  attempted  re- 
duction in  the  accused's  rating  was  ineffectual,  and  he  retains  the  rating  of  quarter- 
master, third  class,  United  States  Navy  (File  26251-8890:6).  C.  M.  O.  49, 1914-5-6. 

SECRECY. 

1.  Confidential  publications.    See  CONFIDENTIAL  PUBLICATIONS. 

2.  Courts-martial  trials.    See  COURT,  126, 127,  171. 

3.  Oaths— Naval  courts-martial.    See  CRITICISM  OF  COURTS-MAETIAL,  22,  35,  36;  OATHS, 

20,  47. 

SECRET  SOCIETY. 

1.  Medical  officers — Signing  forms  for  enlisted  men  to  secure  sick  dues.    See  MEDICAL 
RECORDS,  5. 

SECRETARY  OF  THE  NAVY. 

1.  Abuse  of  his  powers— The  Secretary  of  the  Navy  represents  the  President,  and  exer- 

cises his  power  on  the  subjects  confided  to  his  department.  He  is  responsible  to 
the  people  and  the  law  for  any  abuse  of  the  powers  intrusted  to  him.  His  acts  and 
decisions,  on  subjects  submitted  to  his  jurisdiction  and  control  by  the  Constitution 
and  laws,  do  not  require  the  approval  of  any  officer  of  another  department  to  make 
them  valid  and  conclusive.  (U.  S.  v.  Jones,  18  How.,  95.)  File  26543-66,  J.  A.  G., 
Sept.  8, 1911,  p.  8. 

2.  Same— Legal  liability.    See  LEGAL  LIABILITY,  3;  SECRETARY  OF  THE  NAVY,  1. 

3.  Absence  of— In  the  absence  of  the  Secretary  and  Assistant  Secretary  of  the  Navy,  the 

President  has  directed  that,  until  further  orders,  the  duties  of  the  Secretary  of  the 
Navy  shall  be  performed  by  the  following  designated  persons,  in  the  order  named: 
The  Chief  of  the  Bureau  of  Navigation;  m  his  absence,  the  Chief  of  the  Bureau  of 
Ordnance;  and  in  the  absence  of  those  two,  the  Chief  of  the  Bureau  of  Steam  En- 
gineering. File  12753-9,  June  29,  1912.  But  see  Act  of  March  3,  1915  (38  Stat.,  940), 
which  provides  that  the  Chief  of  Naval  Operations  "shall  be  next  in  succession  to 
act  as  Secretary  of  the  Navy"  during  the  temporary  absence  of  the  Secretary  and  the 
Assistant  Secretary.  See  also  PRECEDENCE,  29. 

4.  Act  of— Is  act  of  the  President.    See  PRESIDENT  OF  THE  UNITED  STATES,  13,  26;  REGU- 

LATIONS, NAVY,  16. 

5.  Acting  Secretary  of  the  Navy.    See  PRECEDENCE,  29. 

6.  Administration  of  the  Navy — The  Secretary  of  the  Navy  is  charged  with  the  adminis- 

tration of  the  entire  Navy.    See  ADEQUATE  SENTENCES,  3. 

7.  Appeals.   See  APPEALS. 

8.  Arrest — If  in  cases  where  such  action  should  be  taken  by  the  convening  authority 

(fleet  or  station),  the  record  does  not  disclose  that  the  accused  was  released  from 
arrest  and  restored  to  duty,  the  Secretary  of  the  Navy  will  issue  directions.  C.  M.  O. 
13,  1914;  40,  1915.  Seeofeo  C.  M.  O.  32,  1915. 

9.  Auditor  for  the  Navy  Department— In  certain  cases  Secretary  of  the  Navy  refuses 

to  furnish  information  to  the  Auditor.  See  AUDITOR  FOB  THE  NAVY  DEPARTMENT, 
5;  DEATH  GRATUITY,  23;  SECRETARY  OF  THE  NAVY,  60. 

50756—17 36 


560  SECRETARY   OF  THU    NAVY. 

10.  Boards  of  Medical  Examiners— Precept  signed  by.    See  BOARDS  or  MEDICAL 

EXAMINERS,  5. 

11.  Censure— Secretary  of  the  Navy  may  express  approval  or  disapproval  or  censure  acts 

or  omissions  of  any  officer,  enlisted  man,  or  civil  employee.  See  COMMENDATORY 
LETTERS,  2;  PUBLIC  REPRIMAND,  17, 18;  SECRETARY  OF  THE  NAVY,  63. 

12.  Civil  liability — For  abuse  of  power.    See  LEGAL  LIABILITY.  2,  3;  SECRETARY  OF  THE 

NAVY,  1. 

13.  Commendatory  letters.     See  COMMENDATORY  LETTERS,  2;  SECRETARY  OF  THE 

NAVY.  63. 

14.  Commissions — The  Secretary  of  the  Navy  may  sign  commissions  issued  to  officers 

but  "it  is  proper"  that  the  commission  should  declare  the  act  to  be  the  act  of  the 
President  performed  by  the  head  of  the  department  as  his  representative.  (22  Op. 
Atty.  Gen.  82.  See  also  O'Shea  v.  U.  S.,  28  Ct.  Cls.  392).  File  28687-4:1,  J.  A.  G., 
Sept.  16,  1916.  See  also  File  26521-152,  J.  A.  G.,  Sept.  22,  1916. 

15.  Same— Numbering  of  commissions  is  act  of  the  Secretary.    (Index,  1915,  11.)    See 

COMMISSIONS,  26. 

16.  Commuting  sentences — Secretary  of  the  Navy  may  not  commute  a  sentence.    See 

COMMUTING  SENTENCES;  SECRETARY  OF  THE  NAVY,  54. 

17.  Same— While  he  may  not  commute  he  may  remit,  mitigate,  or  set  aside.    See  AD- 

DITIONAL PUNISHMENT,  1. 

18.  Comptroller  of  the  Treasury— Policy  of  department  regarding.    See  COMPTROLLER 

OF  THE  TREASURY,  2. 

19.  Courts  of  Inquiry.   See  COURTS  OF  INQUIRY,  2, 10. 

20.  Court-martial  orders — Fleet  and  station  cases.    See  COURT-MARTIAL  ORDERS,  12. 

2 1 .  Criticism — Of  officers,  enlisted  men  or  civil  employees.    See  COMMENDATORY  LETTERS, 

2;  PUBLIC  REPRIMAND,  17, 18;  SECRETARY  OF  THE  NAVY,  63. 
Criticism  of  courts-martial.    See  CRITICISM  OF  COURTS-MARTIAL. 

22.  Decisions — Weight  of  the  decisions  of  the  Secretary  of  the  Navy.    See  SECRETARY  OF 

THE  NAVY,  39. 

Decisions  of  the  Secretary  of  the  Navy  distinguished  from  opinions  of  the  Judge 
Advocate  General.    See  JUDGE  ADVOCATE  GENERAL,  30. 

23.  Same— In  easily  accessible  form  in  court-martial  orders.    See  COURT-MARTIAL  OR- 

DERS, 8. 

24.  Delegation  of  authority — As  reviewing  officer  of  a  general  court-martial  can  not  be 

delegated,  "he  has  been  made  by  law  the  person  whose  duty  it  is  to  review  the 
proceedings  of  courts-martial  in  cases  of  this  kind.  This  implies  that  he  is  himself 
to  consider  the  proceedings  laid  before  him,  and  decide  personally  whether  they  ought 
to  be  carried  into  effect.  Stick  a  power  he  can  not  delegate.  His  personal  judgment 
is  required  as  much  so  as  it  would  have  been  in  passing  on  the  case  if  he  had  been 
one  of  the  members  of  the  court-martial  itself."  (Runklefl.  U.  S.,  122  U.  S.,  543.)  See 
CRITICISM  OF  COURTS-MARTIAL,  35. 

25.  Disapproval  of  sentences  by  convening  authority— No  sentence  can  be  carried 

into  execution  which  has  been  disapproved  by  the  convening  authority  (fleet)  and 
the  Secretary  of  the  Navy  is  without  power.  File  7719-03,  Sec.  Navy,  Nov.  18,  1903. 
See  also  CRITICISM  OF  COURTS-MARTIAL,  35. 

26.  Examining  boards— Precepts  signed  by.    See  NAVAL  EXAMINING  BOARDS,  4. 

Action  upon  records  of  Marine  and  Naval  Examining  Boards.    See  PROMOTION,  5, 
134. 

27.  Fleet  and  station  cases— Where  the  Secretary  of  the  Navy  is  not  the  convening 

authority,  in  general,  it  is  unnecessary  for  him  to  take  any  action  on  general  court- 
martial  cases  unless  he  desires  to  set  aside  the  proceedings  or  remit  or  mitigate  the 
sentence  in  whole  or  la  part  C.  M.  O.  38,  1905,  2;  Index-Digest.  1914,  35;  Index,  1915, 
45.  See  also  C.  M.  O.  107, 1894,  2;  89,  1899;  34,  1900;  4,  1914, 11;  19,  1914;  39,  1914;  48, 
1914;  13,  1915;  17,  1915;  40,  1915.  But  see  C.  M.  O.  13,  1914. 

28.  Same — Authority  of  Secretary  of  Navy  to  return  for  revision.    See  CRITICISM  OF 

COURTS-MARTIAL,  35. 

29.  Fleet  and  station  court-martial  orders.    See  COURT-MARTIAL  ORDERS,  12. 

30.  Same— "This  being  a  squadron  case,  and  having  received  the  approval  of  the  com- 

mander in  chief,  further  action  by  higher  authority  is  not  necessary  in  order  to  give  it 
validity."  It  is,  however,  the  right,  and  may  in  proper  circumstances  be  the  duty 
of  the  department  to  review  a  squadron  case.  (C.  M.  O.  9,  1893;  48,  1904.)  File 
3220-04,  J.  A.  G.,  Aug.  9,  1904. 

31.  Furlough— Secretary  may  place  an  officer  on  furlough.    See  FURLOUGH,  2;  OFFICERS, 

106. 


SECRETARY    OF   THE    NAVY.  561 

32.  General  courts-martial — Action  of  Secretary  of  the  Navy  in  general  court-martial 

cases — "The  court  having  concluded  its  labors  by  acquitting  the  accused,  the  duty 
is  devolved  by  law  upon  the  Secretary  of  the  Navy,  as  the  convening  and  revising 
authority,  to  either  approve  or  disapprove  the  findings  of  the  court.  The  proper 
discharge  of  this  duty  involves,  necessarily,  the  same  calm,  dispassionate,  and  un- 
biased consideration  of  the  evidence  and  of  the  facts  thereby  established  as  has,  pre- 
sumably, been  given  thereto  by  the  court."  C.  M.  O.  41,  1888,  4-5. 

33.  Same— The  department  has  a  duty  to  perform,  and  that  is,  not  only  to  carefully  con- 

sider and  weigh  all  the  evidence  before  it,  in  order  to  determine  whether  it  shall 


may  operate  to  create  a  dangerous  precedent.  It  is  possible  tlu_ 
may  not  have  been  present  in  the  mind  of  the  court,  but  whether  present  or  not, 
the  responsibility  of  the  department  in  this  regard  cannot  be  evaded  or  ignored.'* 
C.  M.  O.  41,  1888,  9.  See  also  SETTING  ASIDE,  10. 

34.  Same — Jurisdiction  to  convene.    See  MAEINES  SERVING  WITH  THE  ARMY,  7. 

The  Secretary  of  the  Navy  may  empower  certain  officers  to  convene  general  courts- 
martial.  See  CONVENING  AUTHORITY,  27. 

35.  Same— Power  of  Secretary  of  the  Navy— To  act  on  general  courts-martial,  in  cases 

in  which  he  is  not  convening  authority,  after  final  approval  by  convening  authority. 
See  File  26504-211;  CRITICISM  OF  COURTS-MARTIAL.  35. 

36.  Same — "When  received  the  record  must  be  reviewed  and  recorded  in  accordance  with 

law."    File  14625-183:25.  Sec.  Navy,  Apr.  9,  1912. 

37.  Same — The  Secretary  of  the  Navy,  when  the  convening  authority,  cannot  delegate 

his  power  to  review  but  must  do  so  personally.  See  CRITICISM  OF  COURTS-MARTIAL, 
35;  SECRETARY  OF  THE  NAVY,  24. 

38.  Judicial  question— Not  authorized  to  decide.    See  VOTING,". 

39.  Law,  questions  of — The  decision  of  the  department  on  questions  of  law  is  just  as 

binding  on  naval  courts-martial  as  a  decision  of  a  State  supreme  court  on  the  lower 
courts  of  that  State.  G.  C.  M.  Rec.  29422?  p.  336. 

The  department  does  not  consider  that  it  is  called  upon  to  furnish  courts-martial 
with  voluminous  or  exhaustive  citations  in  support  of  the  statements  of  the  law. 
Congress  has  by  express  statutory  enactment  (Act,  June  8, 1880,  21  Stat.,  164)  given 
the  Judge  Advocate  General,  under  the  direction  of  the  Secretary  of  the  Navy,  cogni- 
zance of  all  questions  of  naval  law  arising  in  the  naval  service  concerning  the  personnel; 
and  has  furnished  him  with  all  necessary  legal  machinery,  consisting  of  officers  and 
civilian  lawyers  who  have  made  a  specialty  of  naval  law  in  all  its  branches,  and  are 
supplied  with  exhaustive  references  to  decisions  and  precedents  in  both  civil  and 
military  cases,  including  every  reported  decision  of  the  Federal  and  State  courts  since 
the  foundation  of  this  Government.  In  addition,  Congress  has  by  Statute  (R.  S., 
356,  357),  placed  at  the  command  of  the  Secretary  of  the  Navy  the  entire  legal  ma- 
chinery of  the  Department  of  Justice  whenever  he  may  find  it  necessary  to  call  upon 
that  department  for  assistance  in  determining  questions  of  law  arising  in  the  naval 
service  upon  which  he  is  in  doubt.  All  the  above  mentioned  sources  of  legal  knowl- 
edge are  made  available  to  naval  courts-martial  by  a  regulation,  issued  by  the  Presi- 
dent pursuant  to  statutory  authorization  (R.  S.,  1547),  as  follows:  "All  communica- 
tions pertaining  to  questions  of  law  arising  before  courts-martial,  or  to  the  proceedings 
thereof,  which  may  require  the  action  of  the  department,  shall  likewise  be  forwarded 
direct  by  such  presiding  officers "  to  the  Judge  Advocate  General.  (R-850.)  Asa 
general  rule  members  of  courts-martial  are  not  qualified  by  train  ing  and  experience 
to  strip  reported  civil  cases  of  technical  terminology  and  weigh  the  principles  an- 
nounced in  the  various  citations  with  assurance  of  deducing  therefrom  the  correct 
conclusion  of  law.  File  26251-12159,  Sec.  Navy,  Dec.  9, 1916,  pp.  1-2. 

In  deciding  questions  of  law  for  naval  courts-martial,  the  department  prefers  to 
state  legal  conclusions  in  general  terms,  in  every  instance  being  prepared  to  support 
its  statements  of  the  law  should  it  be  called  upon  to  do  so  in  the  civil  courts,  as  some- 
times happens.  File  2C251-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  3. 

40.  Legal  liability— For  abuse  of  power.   See  LEGAL  LIABILITY,  3;  SECRETARY  OF  THE 

NAVY,  1. 

41.  Litigation  In  civil  courts— Policy  of  Secretary  of  Navy.    See  CIVIL  COURTS,  7. 

42.  Mark  of  desertion— Discretion  of  Secretary  of  Navy.    File  26539-551,  J.  A.  G.,  Mar.  17t 

1913.   See  also  MAKE  OF  DESERTION. 


562  SECRETARY    OF    THE    NAVY. 

43.  Midshipmen— Dismissal  by  Secretary  of  the  Navy.    See  MIDSHIPMEN,  80. 

44.  Same— Discharge  upon  own  application  at  end  of  four  years'  course.    See  MIDSHIPMEN. 

45.  Naval  examining  boards— Secretary  of  Navy  signs  precept.    See  NAVAL  EXAMINING 

BOARDS,  4. 
Action  upon  record  of  Naval  Examining  Board.    See  PROMOTION,  5. 

46.  Naval  Militia— It  is  not  the  duty  of  the  Secretary  of  the  Navy  to  prescribe  who  shall 

constitute  the  Naval  Militia.    See  NAVAL  MILITIA,  4,  33. 

47.  Officers — Secretary  may  censure,  commend,  etc.    See  COMMENDATORY  LETTERS,  2; 

SECRETARY  OF  THE  NAVY,  63. 

48.  Pardon — The  Secretary  of  the  Navy  can  not  pardon  an  offense.    See  PARDON  S,  47. 

49.  Plea  in  bar— Can  not  order  court  to  try  charges,  where  court  allows  plea  hi  bar.    See 

REVIEWING  AUTHORITY,  15;  REVISION,  24. 

60.  Powers — Of  the  Secretary  of  the  Navy  in  cases  in  which  the  Auditor  for  the  Navy 
Department  requested  information  for  the  evident  purpose  o{  reviewing  and  possibly 
overruling  decisions  of  the  Navy  Department  upon  questions  of  a  purely  military 
nature.  See  File  2(i260-347:C,  Sec.  Navy,  Oct.  20, 1909;  26543-66,  Sec.  Navy,  Sept.  8, 
1911.  See  also  AUDITOR  FOR  THE  NAVY  DEPARTMENT,  5;  DEATH  GRATUITY,  23. 

51.  Same— Powers  of  where  convening  authority  disapproved  sentence— Where  a  con- 

vening authority,  other  than  the  Secretary  of  the  Navy,  of  a  general  court-martial 
disapproved  the  sentence,  the  department  stated  in  part:  "The  result  of  this  action 
by  the  convening  authority  is  that  the  officer  escapes  punishment  altogether,  as  no 
sentence  can  be  carried  into  execution  which  has  been  disapproved  by  the  reviewing 
authority.  No  question^  therefore,  which  concerns  the  accused  officer  is  before  the 
department,  which  is  without  power  in  the  premises."  File  7719-03. 

52.  Same— In  cases  where  he  is  not  the  convening  authority  the  Secretary  of  the  Navy 

can  only  inquire  whether,  in  the  exercise  of  his  discretion,  the  convening  authority 
has  acted  within  the  limits  of  his  authority  or  overstepped  them.  See  CRITICISM  OF 
COURTS-MARTIAL,  35. 

53.  Same— In  one  case  an  indorsement  of  the  Marine  Corps  stated  in  part:  "As  the  sentence 

in  this  case  was  approved  *  *  *  by  the  '  fleet  convening  authority,'  it  appears 
that  no  further  action  can  now  be  taken."  The  sentence  in  mis  case  was  inadequate 
and  the  department  so  stated,  but  concurred  in  the  above  remarks.  File  26202-2658, 
Sec.  Navy,  Oct.  13, 1916. 

64.  Same — The  Secretary  of  the  Navy  may  set  aside  the  proceedings  or  remit  or  mitigate, 

in  whole  or  in  part,  the  sentence  imposed  by  any  naval  court-martial  convened  by 
his  order  or  by  that  of  any  officer  of  the  Navy  or  Marine  Corps.  C.  M.  O.  89,  1899; 
26,  1912.  4;  49,  1914,  4.  See  also  File  26254-1823:2,  p.  5;  20  Op.  Atty.  Gen.,  243;  15  Op. 
Atty.  Gen.,  175;  17  Comp.  Dec.  311;  13  Comp.  Dec.  726;  The  Laura,  114  U.  S.,  411; 
6  Op.  Atty.  Gen.  488;  SETTING  ASIDE.  10. 

65.  Same—  Power  of  Secretary  of  the  Navy  to  remit  or  mitigate  after  final  approval  by  con- 

vening authority.    File  265047210;  2650^211. 

66.  Same — Only  convening  authority  authorized  to  remit  or  mitigate  sentences  after  final 

action  thereon — The  department  has  held  that  officers  of  the  naval  service  convening 
general  courts-martial  are  not  authorized  to  remit  or  mitigate  the  sentences  imposed 
by  such  courts-martial  after  having  once  acted  thereupon.  For  example,  where  such 
officers  had  approved  the  proceedings,  findings,  and  sentence  of  courts-martial  and 
restored  men  to  duty  on  probation,  directing  thatshould  such  men  commitany  serious 
offense  report  thereof  be  made  to  the  convening  authority  for  his  consideration,  with  a 
view  to  terminating  the  probation,  the  department  held  that  such  procedure  was 
objectionable,  and  that  the  convening  authority  should  forward  the  record  to  the  de- 
partment, "with  recommendations  as  to  the  remission  of  the  sentences,"  in  order 
that  "  the  only  authority  empowered  to  carry  out  the  recommendations  may  in  its  discretion 
remit  or  mitigate  the  sentences."  C.  M.  O.  17,  1910,  5-6:  1, 1912,  4. 

"The  record  [of  proceedings  of  a  general  court-martial ]  having  been  approved  by 
the  Commander  in  Chief,  stands  complete."    13  J.  A.  G.  323,  June  11, 1904. 

57.  Praise — Secretary  may  praise,  censure,  commend,  criticise,  etc.  See  COMMENDATORY 
LETTERS,  2;  PUBLIC  REPRIMAND,  17;  SECRETARY  OF  THE  NAVY,  63. 

68.  President — Acts  through  the  Secretary  of  the  Navy— The  act  of  the  Secretary  of  the 
Navy  in  a  matter  under  his  jurisdiction  is  in  legal  contemplation  the  act  of  the  Presi- 
dent (Weller  v.  U.  S.,  41  Ct.  Cls.,  324).  See  NAVAL  EXAMINING  BOARDS,  4;  REGULA- 
TIONS, NAVY,  16. 


SECRETARY   OF   THE   NAVY.  563 

59.  Same— "The  President,  it  is  well  settled,  may  act  through  the  head  of  a  department; 

and  the  acts  of  the  head  of  a  department  are  to  be  deemed  the  acts  of  the  President," 
with  certain  exceptions  now  immaterial.  (Truitt  v.  U.  S.,  38  Ct.  Cls.,  398.)  File 
26521-152,  J.  A.  G.,  Sept.  22, 1916. 

An  order  of  the  Secretary  of  the  Navy  appointing  a  meteorologist  at  a  navy 
yard  must  be  regarded  as  the  order  of  the  President.  (Hayden  v.  U.  S.,  38 Ct.  Cls.,  39.) 
File  26521-152,  J.  A.  G.,  Sept.  22, 1916. 

60.  Public  Reprimand— See  PUBLIC  REPRIMAND,  17, 18;  SECRETARY  OF  THE  NAVY,  63. 

61.  Record  of  proceedings— Secretary  of  the  Navy  declined  to  go  behind  the  record.    See 

JUDGE  ADVOCATE,  105. 

62.  Records  of  the  department— The  Secretary  of  the  Navy  is  made  by  law  the  personal 

custodian  of  the  department's  records.  See  RECOBD  OF  PROCEEDINGS,  85;  RECORDS 
OF  THE  DEPARTMENT,  7. 

63.  Reprimand— The  assumption  that  the  Secretary  of  the  Navy  can  not  pronounce  a 

rebuke,  public  or  private,  npon  an  officer  for  a  breach  of  discipline,  or  a  failure  in  the 
performance  of  duty,  without  obtaining  the  sanction  of  a  court,  is  an  unheard  of 
proposition.  The  department  impartially  awards  praise  or  blame  to  the  officer  who 
deserves  one  or  the  other,  as  occasion  may  arise;  and  the  practice  is  as  old  as  the 
department  itself.  Cases  have  occurred  where  the  department,  without  trial,  has 
pronounced  emphatic  reprimand  upon  officers  in  general  orders.  The  publicity 
that  is  given  either  to  its  commendation  or  its  reproof  is  a  matter  within  its  own 
discretion,  in  the  exercise  of  which  it  consults  only  the  public  interests.  File  26251- 
2993,  Mar.  10, 1910,  quoting  letter  of  Sec.  Navy,  Jan.  14,  1891.  See  also  C.  M.  O.  9, 
1893;  File  26283-522,  Feb.  12, 1913;  COMMENDATORY  LETTERS,  2;  PUBLIC  REPRIMAND, 
17. 18. 

64.  Resignations — The  Secretary  of  the  Navy  is  the  proper  administrative  officer  to 

accept  resignations  of  naval  officers.    See  RESIGNATIONS,  28. 

65.  Reviewing  authority  of  general  courts-martial— Delegation  of  powers.    See  CRITI- 

CISM OF  COURTS-MARTIAL,  35;  SECRETARY  OF  THE  NAVY,  24. 

66.  Revision — Power  of  the  Secretary  of  the  Navy  to  return  records  for  revision  after  it 

has  been  acted  upon  by  the  convening  authority.    File  26504-211. 

67.  Revocation— Of  action  on  courts-martial.    See  SETTING  ASIDE,  8. 

68.  Setting  aside,  proceedings,  sentences,  etc.   See  SETTING  ASIDE,  10. 

69.  Steam  engineering— The  Secretary  of  the  Navy  or  Acting  Secretary,  as  the  case 

may  be,  may  sijm  all  mail  which  requires  the  signature  of  the  Chief  of  the  Bureau  of 
Steam  Engineering  during  a  vacancy  in  that  Office.  File  22724-7e,  May  14,  1909. 

70.  Summary  courts-martial— Action  on.    See  SUMMARY  COURTS-MARTIAL,  83. 

71.  Voting— The  Secretary  of  the  Navy  is  without  jurisdiction  to  decide  right  of  officers 

and  enlisted  men  to  vote.    See  VOTING,  7. 

72.  Vulgar  and  indecent  acts  and  associations  of  an  officer— Secretary  of  the  Navy 

may  place  officer  on  furlough.    See  OFFICERS,  106. 

73.  Waiving  Regulations.   See  REGULATIONS,  NAVY,  90-95. 

SEDITION. 

1.  Definition— The  accused  was  tried  by  general  court-martial  on  a  foreign  station  on  the 
charges  of  "Scandalous  conduct  tending  to  the  destruction  of  good  morals,"  and 
"Uttering  seditious  words." 

The  specification  of  the  first  charge  alleged  that,  in  a  public  barroom  in  Shanghai 
China,  in  the  presence  of  two  enlisted  men  of  His  Britannic  Majesty's  navy,  and 
several  enlisted  men  of  the  United  States  Navy,  the  accused  used,  in  a  loud  tone  of 
voice,  an  obscene  expression  against  the  United  States  Navy,  and  also  stated  that  the 
.  American  bluejacket  is  no  good,  and  had  not  treated  the  English  right,  or  language 

of  like  import. 

The  specification  of  the  second  charge  alleged  that,  in  the  same  place  and  in  the 
presence  of  the  same  witnesses  above  mentioned,  the  accused  used,  in  a  loud  tone  of 
voice,  seditious  words  in  reference  to  the  United  States  Navy,  saying,  in  substance, 
"F the  United  States  Navy." 

The  accused  pleaded  not  guilty  to  both  charges  and  the  specifications  thereof. 

The  court  found  both  specifications  proved  and  the  accused  guilty  of  both  charges. 

Whereas  the  evidence  conclusively  proves  the  allegations  set  forth  in  the  specifica- 
tions, in  so  far  as  the  spoken  words  are  concerned,  thereby  justifying  the  finding  of 
guilty  to  the  first  charges  there  are  two  points  which  present  themselves  in  considering 
the  second  charge  and  its  specification:  First,  as  to  whether  the  words  uttered  are 


564  SEDITION. 

seditious;  and,  second,  if  classed  in  that  category,  the  necessity  of  not  only  alleging 
but  establishing  the  fact  that  they  were  intentionally  so,  and  uttered  with  that 
purpose. 

The  American  and  English  Encyclopedia  of  Law,  under  the  caption  "Sedition," 
recites  as  follows: 

"In  the  United  States  it  has  been  held  that  all  publications  which  tend  to  degrade 
and  vilify  the  Constitution,  to  promote  insurrection  and  circulate  discontent  through 
its  members,  to  asperse  its  justice  and  anywise  impair  the  exercise  of  its  functions, 
are  seditious,  and  are  visited  with  the  peculiar  rigor  of  the  law."  (Respublica  v. 
Dennie.  4  Yates  (Pa.),  270.) 

And  the  same  authority  further  states: 

"Sedition  is  conduct  tending  toward  treason,  but  wanting  an  overt  act;  attempts 
made  by  meeting  or  speeches  or  by  publications  to  disturb  the  tranquillity  of  the 
State  which  do  not  amount  to  treason.  All  contempts  against  the  sovereign  and  the 
government,  and  riotous  assemblies  for  political  purposes,  may  be  reckoned  under 
the  head  of  sedition." 

"In  criminal  law;  the  raising  commotions  or  disturbances  in  the  State;  it  is  a 
revolt  against  legitimate  authority.  The  distinction  between  sedition  and  treason 
consists  in  this,  that  the  ultimate  object  of  sedition  is  a  violation  of  the  public  peace 
or  at  least  such  a  course  of  measures  as  evidently  engenders  it,  yet  it  does  not  aim  at 
direct  and  open  violence  against  the  laws  or  the  subversion  of  the  constitution." 
(Bouv.) 


writers  nearly  identified  with  mutiny,  is  in  the  more  recent  treatises  distinguished 
as  beine  a  resistance  to  the  civil  power,  demonstrated  by  riot  or  aggravated  disorder, 
is  supposed  to  apply  to  acts  of  a  treasonable  or  riotous 


In  view  of  what  the  foregoing  recognized  authorities  hold  to  be  sedition,  and  as 
seditious  words  necessarily  mean  words  of  a  seditious  character,  it  is  the  opinion  of 
the  department  that  the  words  used  by  this  accused  can  not  well  be  classed  as  sedi- 
tious; neither  should  the  same  be  considered  more  than  a  low,  obscene,  and  idle 
expression,  without  any  particular  intent  to  either  vilify  the  Constitution  through 
the  United  States  Navy,  or  to  promote  insurrection,  or  in  any  way  impair  the  exercise 
of  the  functions  of  the  United  States  Government. 

In  view  of  this  conclusion  it  hardly  seems  necessary  to  take  up  the  second  point 
involved,  namely,  that  if  classed  as  seditious  the  necessity  is  apparent  of  not  only 
alleging,  but  establishing  the  fact  that  they  were  intentionally  so  and  uttered  with 
that  purpose.  Some  remarks  on  this  phrase  of  the  case  might,  however,  be  appro- 
priate. 

In  treating  the  subject  of  evidence,  and  particularly  as  it  relates  to  the  introduction 
under  certain  circumstances  of  evidence  of  other  offenses  to  show  intent,  Wigmore,  a 
recognized  authority,  says  that  in  sedition  (including  seditious  riot  and  seditious 
lihelTother  acts  and  utterances  are  receivable  under  the  present  principles  to  evidence 
seditious  intent.  In  the  same  way  the  accused  may  offer  his  utterances  and  acts  to 
evidence  his  loyal  (i.  e.,  nonseditious)  intent.  Wigmore  on  Evidence,  vol.  1,  sec. 
369,  p.  370.) 

The  specification  in  this  case  contained  no  allegation  to  the  effect  that  the  words 
uttered  were  either  known  to  be  seditious,  or  that  they  were  spoken  with  that  intent; 
and,  in  the  opinion  of  the  department,  such  allegation  would  appear  to  be  essential. 

Furthermore,  the  evidence  rather  conclusively  indicates  that  the  accused  was 
intoxicated  at  the  time  he  used  the  expression  on  which  this  charge  is  based. 

'  Where  the  question  is  whether  words  have  been  uttered  with  a  deliberate  pur- 


pose or  are  merely  low  and  idle  expressions,  the  drunkenness  of  the  person  uttering 
them  is  proper  to  be  considered."    (Greenleaf  on  Evidence,  Vol.  Ill,  sec.  6,  p.  10.) 

The  same  authority  further  remarks  that,  "Intoxication  is  now  very  generally  held 
to  be  admissible,  not  to  excuse  a  crime,  but  as  bearing  upon  the  question  of  mental 
capacity  to  entertain  express  malice,  or  to  exercise  deliberation,  or  the  actual  presence 
of  a  deliberate  intent  in  the  mind  of  the  prisoner  at  the  time  of  the  act." 


SEDITION.  565 

Where,  therefore,  the  actual  existence  of  any  particular  purpose,  motive,  or  intent 
is  a  necessary  element  to  constitute  a  particular  species  of  crime  or  degree  of  crimi- 
nality, the  fact  that  the  accused  was  intoxicated  at  the  time  may  be  taken  into  con- 
sideration in  determining  the  purpose,  motive,  or  intent  with  which  he  committed 
the  act.  (3  Greenleaf  on  Evidence.  10,  note.) 

Winthrop  further  remarks  that  drunkenness,  if  clearly  shown  in  evidence  to  have 
been  such  as  to  have  incapacited  the  party  from  entertaining  such  purpose  or  intent, 
will  ordinarily  be  properly  treated  as  constituting  a  legal  defense  to  the  specific  act 
charged.  It  might  be  remarked,  however,  that  if  the  drunken  act  has  involved  a 
disorder  or  neglect  of  duty  prejudicial  to  good  order  and  discipline,  and  such  will 
almost  invariably  be  the  fact,  the  accused  may  be  convicted  of  an  offense  under  the 
latter  charge.  (Winthrop's  Military  Law,  2  ed.,  p.  441.) 

From  a  careful  review  of  the  evidence  adduced  In  this  case,  it  appears  that  the 
accused  was  intoxicated,  and  hardly  capable  of  entertaining  a  deliberate  purpose  or 
intent,  and  the  words  spoken  by  him  were  nothing  more  than  a  low,  obscene,  and 
idle  expression  of  a  drunken  man,  uttered  without  particular  significance  or  meaning, 
certainly  without  seditious  meaning  or  purpose,  and  should  be  treated  as  such. 

In  view  of  the  foregoing  the  findings  of  the  court  on  the  second  charge  and  specifi- 
cation thereof  were  disapproved  by  the  department;  but  the  punishment  adjudged 
by  the  court  being  considered  none  too  severe  for  the  offenses  of  which  the  accused 
was  found  guilty,  the  proceedings  and  the  findings  on  the  first  charge  and  the  sen- 
tence were  approved.  C.  M.  0. 14,  1910,  13-15. 

2.  "Uttering  seditious  words" — Enlisted  man  charged  with.    See  MALICIOUSLY  UTTER- 
INQ  SEDITIOUS  WORDS,  1;  SEDITION,  1;  UTTEBING  SEDITIOUS  WOKDS. 

SELECTION. 

1.  Promotion  by  selection.    See  PROMOTION  BY  SELECTION. 

SELF  DEFENSE.    See  MANSLAUGHTER,  12;  MURDER,  32. 

SELF-INCBIMINATION. 

1.  Accused — Status  of,  as  witness.    See  WITNESSES,  1 — 11. 

2.  Accused  may  not  object  to  another  Incriminating  himself — The  accused  cannot 

object  to  such  testimony  and  has  no  right  to  insist  upon  the  privilege  and  require  the 
court  to  exclude  the  evidence  on  that  ground.  The  witness  may  waive  his  privilege 
and  testify  in  spite  of  any  objection  coming  from  the  accused  or  his  counsel.  If  the 
witness  claims  his  privilege  but  is  nevertheless  required  to  testify,  it  is  a  matter  ex- 
clusively between  the  court  and  the  witness.  Under  such  circumstances  the  accused 
is  in  no  worse  predicament  than  if  the  witness  had  come  forward  voluntarily  to  testify 
or  had  failed  to  avail  himself  of  his  privilege.  (17  Op.  Atty.  Gen.,  616)  C.  M.  0. 29, 
1914,  7.  See  also  File  26262-2405. 

3.  Claiming— How  the  privilege  is  claimed— The  method  of  the  witness  availing  himself 

of  the  privilege  is  by  claiming  it  after  the  question  has  been  put.  (McKelvey,  p.  376.) 
"The  proper  course  in  any  case  where  a  witness  claims  the  privilege  of  declining  to 
answer  questions  on  the  grounds  of  self-crimination  [or  degradation]  is  for  the  witness 
to  state  in  specific  terms  why  he  refuses  to  answer,  and  then  the  court  must  decide 
whether  or  not  the  privilege  should  be  allowed."  (C.  M.  O.  17,  1910,  13.)  "The 
witness  should  not  be  required  to  explain  fully  how  his  answer  would  tend  to  criminate 
[or  degrade]  him."  (40  Cyc.,  2550.)  The  grounds  on  which  the  refusal  is  based, 
that  is  whether  criminating  or  degrading  (C.  M.  0. 17, 1910, 13),  as  well  as  the  question, 
should  appear  in  the  record.  (McKelvey,  p.  376.)  C.  M.  O.  29, 1914, 12. 

4.  Comment,  no — Witness  may  decline  to  answer  and  if  privilege  is  allowed,  no  inference 

or  unfavorable  comment  is  to  be  made — "  In  the  exercise  of  this  privilege  the  law 
protects  the  witness  from  unfavorable  presumptions;  for  if  it  be  exercised,  no  legal 
inference  as  to  the  truth  of  the  matter  which  was  the  subject  of  the  inquiry  is  permitted 
to  be  drawn."  (1  Winth.,  p.  525.)  "In  any  case  where  it  is  rightly  claimed  and  is 
upheld  by  the  court  the  privilege  is  so  complete  that  the  prosecutor  will  not  be 
allowed  to  even  comment  upon  the  refusal  of  the  witness  to  answer."  (C.  M.  0. 17, 
1910,  13.)  C.  M.  O.  29, 1914,  11. 

5.  Compulsion — If  the  answer,  made  under  compulsion,  is  criminating,  it  can  not  be  used 

in  evidence  against  the  witness  subsequently — If  the  privilege  claimed  by  the  witness 
be  on  the  ground  of  self-crimination,  and  the  "court  should  compel  him  to  answer  a 
question,  deemed  proper  by  it,  the  answer  thereto,  if  it  should  prove  criminating,  can 
not  be  given  in  evidence  against  him.  (Dudley,  p.  289.)  "The  general  rule  certainly 


566  SELF-INCEIMINATION. 

is  that  evidence  given  or  statements  made  by  a  party  under  compulsion  or  order  of 

court,  tending  to  criminate  himself,  can  not  be  put  in  evidence  on  a  criminal  proceeding 

against  him."    (U.  S.  v.  Prescott,  2  Dill,  405, 27  Fed.  Cas.  16085.)    C.  M.  0. 29, 1914, 14. 

6.  Contempt  of  court — II  directed  by  the  court  the  witness  must  answer  the  question 

or  be  in  contempt.    See  CONTEMPT  OF  COURT,  7. 

,7.  Court  decides  whether  the  privilege  should  be  allowed — The  question  of  whether 
an  answer  might  criminate  or  tend  to  criminate  or  degrade  a  witness  is  a  pre- 
liminary question  of  fact  for  the  court  to  decide.  (See  C.  M.  0. 17, 1910, 13.  and  McKel- 
vey,  p.  380.)  "A  witness  cannot  be  left  to  say  for  himself  when  he  will  or  will  not 
answer  questions  and  then  defend  himself  from  punishment  by  hiding  behind  his 
privilege."  (McKelvey,  p.  380.)  "The  witness  will  not  be  required  to  explain  in 
what  manner  the  answer  would  criminate  [or  degrade]  him,  as  this  would  defeat  the 
object  of  the  rule."  (Jones  on  Evidence,  p.  889.)  "A  witness  is  not  the  sole  judge 
whether  a  question  put  to  him,  if  answered,  may  tend  to  criminate  [or  degrade]  him. 
*  *  *  But  if  the  fact  once  appear,  that  the  witness  is  in  danger,  great  latitude  will 
be  allowed  him  in  judging  for  himself  the  effect  of  any  particular  question. "  (2  Bouv. , 
1244.)  "It  is  not  the  rule,  however,  that  the  privilege  must  always  be  extended  to  the 
witness,  if  asked.  While  the  court  should  be  extremely  careful  to  protect  the  witness 
in  his  right,  yet  the  danger  must  be  something  more  than  a  merely  fanciful  or  imaginary 
danger, 

"It  must  be  real,  with  reference  to  the  probable  operation  of  law  in  the  ordinary 
course  of  things,  and  not  merely  speculative,  having  reference  to  some  remote  and  un- 
lucky contingency.  The  court  must  see,  from  the  circumstances  of  the  case  and  the 
nature  of  the  evidence  which  the  witness  is  called  to  give,  that  there  is  reasonable 
ground  to  apprehend  danger  to  the  witness  from  his  being  compelled  to  answer,  and 
that  it  would  naturally  subject  him  to  actual  punishment."  (3  Jones  on  Evidence, 
pp.  888-889.)  C.  M.  O.  29,  1914,  14. 

In  connection  with  the  discussion  in  Court-Martial  Order  No.  29, 1914,  page  14,  lines 
13-38,  of  criminating  and  degrading  questions,  the  following  is  quoted  from  a  decision 
of  Chief  Justice  Marshall:  "It  is  the  province  of  the  court  to  judge  whether  any  direct 
answer  to  the  question  which  may  be  proposed  will  furnish  evidence  against  the 
witness.  If  such  answer  may  disclose  a  fact  which  forms  a  necessary  and  essential 
link  in  the  chain  of  testimony,  which  would  be  sufficient  to  convict  him  of  any  crime, 
he  is  not  bound  to  answer  it  so  as  to  furnish  matter  for  that  conviction.  In  such  a  case 
the  witness  must  himself  judge  what  his  answer  will  be;  and  if  he  say  so  on  oath  that 
he  can  not  answer  without  accusing  himself,  he  can  not  be  compelled  to  answer." 
(U.  S.  v.  Burr,  25  Fed.  Cas.,  38;  Counselman  v.  Hitchcock,  142  U.  S.,  547.)  C.  M.  O. 
53,  1914,  5. 

8.  Court,  in  proper  cases,  may  inform  the  witness  of  his  privilege— In  proper  cases, 

however,  the  court  may,  in  its  discretion,  inform  the  witness  of  his  rights.  (17  Op. 
Atty.  Gen.,  616;  C.  M.  O.  49, 1910,  9;  14, 1910, 12.)  "So,  whereas,  there  appears  to  be 
no  objection,  if  it  be  deemed  necessary,  to  cautioning  an  ignorant  witness  against 
incriminating  himself,  when  he  voluntarily  takes  the  stand,  such  caution  should  be 
properly  worded.  That  is,  if  he  is  without  counsel,  he  may,  if  deemed  necessary,  be 
advised,  that  in  the  examination  in  chief  he  need  not  answer  questions  which  will 
tend  to  criminate  him;  but,  if  answered  on  the  direct  examination,  he  must  submit 
to  a  full  cross-examination  on  the  subject  matter  that  is  brought  out,  notwithstanding 
the  answers  may  tend  to  criminate  or  disgrace  him."  (C.  M.  O.  49, 1910,  9;  14, 1910 
12.)  C.  M.  O.  29, 1914.  Seealso  C.  M.  0. 16,  1916,  7j  G.  C.  M.  Rec.  31509,  p.  34. 

9.  Court  of  Inquiry — The  defendant  before  a  court  of  inquiry  shall  be  allowed,  if  he  so 

desires,  to  testify  in  his  own  behalf,  but  he  may  decline  to  answer  any  question  which 
may  tend:  to  incriminate  himself.  (R-421.)  See  File  26251-12895, 1917. 

10.  Degrade.    See  SELF  CRIMINATION,  11, 12. 

11.  Disgrace — Questions,  the  answers  to  which  would  disgrace  or  degrade,  but  not  tend  to 

criminate,  may  be  asked  on  matters  material  to  the  issue  on  trial  but  not  as  to  col- 
lateral, irrelevant,  or  immaterial  matters — "A  witness  may  be  compelled  to  answer 
as  to  a  matter  which  is  material  to  the  issue  on  trial,  notwithstanding  his  answer  may 
have  a  tendency  to  disgrace  him  or  bring  him  into  disrepute;  but  may  refuse  to  answer 
where  the  inquiry  is  as  to  collateral,  irrelevant,  or  immaterial  matters.  Accordingly 
he  may  fall  back  upon  his  privilege  and  refuse  to  answer  if  his  answer  could  have  no 
effect  upon  the  case  except  to  impair  his  credibility,  unless  the  answer  of  the  witness 
will  not  directly  show  his  infamy,  but  only  tend  to  disgrace  him,  in  which  case  he  is 
bound  to  answer."  (40  Cyc.,  2534.)  "  He  can  not,  it  would  seem,  refuse  to  give  tes- 
timony, which  is  material  and  relevant  to  the  issue,  for  the  reason  that  it  would 
disgrace  him  or  expose  him  to  civil  liability."  (2  Bouv.,  1244.) 


SELF-INCRIMINATION.  567 

lain  silent  "when  the  answer  which 
his  infamy,  but  will  only  tend 
seen  to  have  that  effect  certainly 

and  directly"  (2  Bouv.,  1244);  that  is,  the  answer  must  be  one  which  would  clearly 
degrade  and  not  merely  tend  to  degrade. 

Since  the  proviso  to  the  act  of  February  16,  1909,  section  12  (35  Stat.,  622)  (Navy 
Regulations,  1913,  R-42),  discussed  under  the  heading  "Witness  is  privileged  from 
answering  criminating  questions,"  is  declaratory  of  the  common  law  on  the  subject, 
the  common  law  principles  expressed  above  are  not  inconsistent  with  this  proviso 
and  apply  to  all  witnesses  who  appear  before  any  kind  of  a  naval  court.  C.  M.  O. 
29,  1914,  11-12. 

12.  Same— As  to  impeaching  a  witness  it  may  be  stated  as  the  weight  of  modern  authority 

that,  "the  fact  that  a  witness  has  been  convicted  of  crime  may  be  brought  out  as 
bearing  on  his  credibility,  where  the  crime  amounts  to  a  felony,  or  is  infamous  in  its 
nature,  and  involves  moral  turpitude.  But  it  is  usually  held  that  a  witness  is  not 
to  be  discredited  by  showing  his  conviction  of  a  mere  misdemeanor,  or  minor  offense 
not  involving  moral  turpitude,  or  infamous  in  its  nature."  (40  Cyc.,  2607.)  C.M.  O. 
16, 1916,  8.  See  also  WITNESSES,  52. 

13.  No  privilege — On  the  ground  that  the  answer  would  tend  to  criminate  if  the  testimony 

can  not  be  used  to  convict  or  as  to  a  matter  brought  out  hi  examination-in-chief. — "  The 
privilege  [against  self-crimination]  can  not,  of  course,  be  claimed  where  the  criminal 
liability  has  ceased — as  where  the  witness  has  been  finally  tried  for  the  offense  re- 
ferred to  in  the  question"  (1  Winth.  p.  525.  SeealsoC.M.  0. 25, 1909);  "or  prosecution 
for  the  same  has  been  barred  by  the  statute  of  limitations.  Nor  can  it  be  claimed  on 
the  cross-examination  where  the  witness  has  voluntarily  testified  without  objection, 
as  to  the  subject  of  the  question  on  the  examination-in-chief."  (1  Winth.,  p.  525.) 
Nor  where  the  witness  has  been  pardoned  for  the  offense  involved  in  the  inquiry. 
(40  Cyc.,  2542.)  Where  a  witness  declines  to  testify  on  the  ground  that  his  testimony 
might  criminate  him,  and  the  President  has  issued  an  unconditional  pardon,  the 
witness  is  thereby  deprived  of  the  right  to  claim  the  privilege,  without  reference  to 
whether  he  accepted  the  pardon  or  not.  (U.  S.  v.  Burdick,  211  Fed.  Rep..  492.  See 
also  Hale  v.  Henkel,  201  U.  S.,  43.) 

But  if  the  privilege  is  claimed  on  the  ground  that  the  answer  would  degrade  or  dis- 
grace the  witness,  as  hereinafter  explained ,  and  the  inquiry  is  as  to  matter  not  involved 
in  the  issues  on  trial — as,  for  instance,  questions  affecting  the  witness'  credibility — 
the  fact  that  criminal  liability  has  ceased  by  reason  of  former  trial,  the  bar  of  the 
statute  of  limitations,  or  pardon,  does  not  prevent  the  witness  claiming  the  privilege. 
C.  M.  O.  29,  1914,  11.  See  also  SELF-INCRIMINATION,  12. 

14.  Same— The  case  of  U.  S.  v.  Burdick  (211  Fed.  Rep.,  492)  cited  in  Court-Martial  Order 

No.  29,  1914,  page  11,  lines  22-26,  was  reversed  by  the  Supreme  Court  of  the  United 
States. 

The  facts  in  this  case  are  as  follows:  Burdick  first  appeared  before  a  grand  jury 
and  declined  under  oath  to  answer  questions  on  the  ground  of  crimination.  The 
President  thereupon  issued  an  unconditional  pardon  for  any  offenses  committed  by 
Burdick  in  reference  to  the  subject  matter  of  the  questions,  the  answers  to  which 
Burdick  claimed  might  criminate  him.  Burdick  declined  to  accept  the  pardon,  or 
to  answer  certain  questions,  giving  the  reason,  as  before,  that  the  answers  might  tend 
to  criminate  him.  He  was  presented  by  the  grand  jury  to  the  district  court  for  con- 
tempt and  adjudged  guilty  thereof,  but  given  an  opportunity  to  purge  himself  of  con- 
tempt by  answering  the  questions.  He  refused  again.  The  district  court  decided 
that  the  President  "has  power  to  pardon  for  a  crime  of  which  the  individual  has  not 
been  convicted  and  which  he  does  not  admit,  and  that  acceptance  is  not  necessary 
to  toll  the  privilege  against  incrimination." 

The  Supreme  Court  reversed  the  d  istrict  court,  Mr.  Justice  McKenna,  who  delivered 
the  opinion  of  the  court  on  January  25, 1915,  saying  in  part  as  follows:  "  Grant  ing,  then, 
that  the  pardon  was  legally  issued  and  was  sufficient  for  immunity,  it  was  Burdick's 
right  to  refuse  it,  as  we  have  seen;  and  it,  therefore,  not  becoming  effective,  his  right 
under  the  Constitution  to  decline  to  testify  remained  to  be  asserted."  (Burdick 
v.  U.  S.,  235,  U.  S.,  267.)  C.  M.  O.  53,  1914,  5. 

15.  Pardon.    C.  M.  O.  29, 1914, 11;  53, 1914, 5.    See  also  SELF-CRIMINATION,  13, 14. 


568  SELF-IXCRIMINATIOX. 

16.  Personal  privilege— Privilege  is  a  personal  one  and  may  be  claimed  by  the  witness 

only— The  privilege  may  be  claimed  by  the  witness  but  is  strictly  personal  to  bun 
and  if  he  does  not  claim  it  for  himself  no  one  else  can  claim  it  for  him.  (40  Cyc..  2548; 
C.  M.  O.  49, 1910, 9;  55, 1910, 10;  14, 1910, 12;  0, 1913,  4;  8, 1913,  5;  17  Op.  Atty.  Gen.,  616.) 
Accordingly  the  accused  can  not  claim  the  privilege  for  another  who  is  a  witness 
(40  Cyc.,  2548;  17  Op.  Atty.  Gen.,  616),  nor  can  such  claim  be  interposed  by  counsel 
for  the  accused  (40  Cyc.,  2548;  17  Op.  Atty.  Gen.,  616;  C.  M.  0. 49, 1910, 9;  55, 1910, 10; 
6, 1913, 4)  nor  should  the  court  interfere,  but  should  leave  the  matter  with  the  witness 
to  avail  himself  of  his  privilege,  or  not,  as  he  sees  fit.  (3  Jones  on  Evidence,  p.  893; 
C.  M.  O.  49,  1910,  9;  8, 1913,  6;  29,  1914,  12.  See  also  C.  M.  O.  18,  1897,  4.) 

17.  Privilege  In  general — Witness  is  privileged  from  answering  criminating  questions — 

"It  is  an  established  principle  of  the  common  law,  recognized  indeed  and  affirmed 
in  the  United  States  Constitution,  that  a  witness  *  *  *  may  refuse  and  can  not 
be  required  to  answer  a  question  the  answer  to  which  may  tend  to  criminate  him; 
or,  as  it  is  expressed  by  Greenleaf , '  have  a  tendency  to  expose  him  to  a  penal  liability, 
or  to  any  kind  of  punishment,  or  to  a  criminal  charge';  or  even,  in  the  language  of 
Chief  Justice  Marshall,  form  a  link  in  the  'chain  of  testimony  which  is  necessary  to 
convict  an  individual  of  crime.'  *  *  *  In  military  cases  the  principle  has 
properly  been  recognized  where  the  answer  to  the  question  might  subject  the  witness 
either  to  a  military  or  a  civil  prosecution."  (1  Winth.,  pp.  524-526.) 

The  act  of  February  16,  1909,  section  12  (35  stat.,  622)  (Navy  Regulations,  1913, 
R-42),  contains  the  following  proviso: 

"No  witness  shall  be  compelled  to  incriminate  himself  or  to  answer  any  question 
which  may  tend  to  incriminate  or  degrade  him." 

It  would  appear  that  the  said  proviso  was  intended  to  be  declaratory  of  the  common 
law  on  the  subject,  and  under  such  circumstances  the  rule  of  construction  applies  that 
statutes  are  to  be  construed  with  reference  to  the  principles  of  common  law  and  in 
harmony  therewith,  unless  a  different  intention  on  the  part  of  the  legislature  is  mani- 
fested. 

Accordingly  the  principles  under  this  heading  apply  to  aU  witnesses,  whether  in 
the  naval  service  or  civil  life.  C.  M.  O.  29,  1914, 10. 

18.  Waiving  the  privilege — How  the  privilege  is  waived— "The  witness  may  waive  the 

privilege  by  failing  to  make  timely  objection.  For  still  stronger  reasons,  the  privilege 
is  waived  if  no  objection  whatever  is  made."  (3  Jones  on  Evidence,  p.  893.)  "The 
privilege  being  for  the  protection  of  the  witness,  he  may  waive  it,  but  once  having 
elected  to  do  so  he  is  not  permitted  to  stop,  but  must  go  on  and  make  a  full  dis- 
closure" (Dudley,  p.  290;  see  also  C.  M.  0. 17,  1910,  15).  "although  in  so  doing  he 
exposes  himself  to  a  oriminal  charge."  (C.  M.  0. 17, 1910, 14.)  C.  M.  0. 29, 1914, 13. 

19.  Witness  must  answer— If  directed  by  the  court  to  answer,  the  witness  must  do  so 

or  be  in  contempt.    C.  M.  O.  29, 1914, 13.    See  also  CONTEMPT  OF  COURT,  7. 

20.  Witness  only  may  claim.    See  SELF-INCRIMINATION,  16. 

SELF-SERVING  STATEMENTS.    C.  M.  O.  29, 1914, 8;  2,  1917,  2.    See  also  WORDS  AND 
PHRASES. 

SENATE. 

1.  Appointments  of  officers — Confirmation  by  Senate.    See  COMMISSIONS,  36. 

2.  Court  of  Inquiry— Reopened  on  request  of  Senate.    See  COURTS  OF  INQUIRY,  49. 

3.  Resolution — Senate  resolution  requested  Secretary  of  the  Navy  to  reopen  court  of 

inquiry.   See  COURTS  OF  INQUIRY,  49. 

SENIOR  OFFICER  PRESENT.   See  also  SUMMARY  COURTS-MARTIAL,  38. 

1.  Action  of— Importance  of.    See  CONVENING  AUTHORITY,  2. 

2.  Same — Word  "findings"  not  used  in  action  on  summary  courts-martial.    C.  M.  O. 

36, 1914,  5.    But  see  FINDINGS,  86. 

3.  Binding  of  court-martial  records.   See  BINDING  OF  COURT-MARTIAL  RECORDS. 

4.  Changing  action  after  promulgation— As  a  reviewing  authority  (senior  officer 

present)  can  not  change  his  action  upon  a  court-martial  after  such  action  has  been 
promulgated  and  the  accused  duly  notified,  it  would  not  be  proper  for  the  successor 
in  office  of  such  senior  officer  present  to  do  what  the  original  reviewing  authority 
could  not  do.  If  the  proceedings  have  not  been  published  nor  the  accused  notified", 
it  would  be  proper  for  such  successor  in  office  to  take  further  action  upon  a  case  as 
might  seem  to  him  necessary  and  proper.  File  26287-1121,  J.  A.  G.,  Feb.  24, 1912. 


SENIOR    OFFICER   PRESENT.  569 

5.  Convening  authority  also— Should  there  be  no  officer  present  senior  to  the  con- 

vening authority  of  a  summary  court-martial,  he  shall,  in  subscribing  his  action 
upon  the  record,  add  to  his  title  the  words,  "Senior  OfHcer  Present."  C.  M.  O.  34, 
1913, 3.  See  also  CONVENING  AUTHORITY,  2, 58. 

6.  Same — An  enlisted  man  was  tried  by  summary  court-martial  on  board  the  U.  S.  S. 

Ozark  and  sentenced  to  forfeiture  of  pay  and  bad-conduct  discharge.  Therecord  dis- 
closed that  the  convening  authority  was  also  the  senior  officer  present  and  took 
separate  actions  thereon;  that  is,  he  acted  on  the  case  as  convening  authority  and 
also  took  separate  action  thereon  as  senior  officer  present.  Navy  Regulations,  1913, 
R-620  (4)  provide,  "If  the  convening  authority  approves  the  whole  or  any  part  of 
the  sentence  adjudged,  he  shall  transmit  the  record  to  the  commander  in  chief,  or  in 
hisabsence  to  the  senior  officer  present.  Should  no  officer  senior  to  himself  be  present, 
he  shall.in  subscribing  hisaction  upon  the  record,  add  to  his  title  the  words  '  Senior 
Officer  Present. '"  This  one  action  is  thus  made  to  serve  a  double  purpose  in  such 
cases.  (See  C.  M.  O.  6,  1915,  p.  5)  C.  M.  O.  12,  1915,  5. 

7.  Commandant  of  navy  yard.   See  COMMANDANTS  OF  NAVY  YARDS  AND  NAVAL 

STATIONS,  4. 

8.  Definition.   See  REVIEWING  AUTHORITY,  7. 

9.  Disapproval  of  proceedings — And  approval  of  sentence  by  senior  officer  present. 

See  REVIEWING  AUTHORITY,  20. 

10.  Engine  room.   See  EMERGENCY,  5. 

11.  G.  O.  11O.   See  GENERAL  ORDER  110,  July  27, 1914,  21. 

12.  Navy  yards  and  naval  stations.    See  COMMANDANTS  OF  NAVY  YARDS  AND  NAVAL 

STATIONS,  4. 

13.  Reconvening — Senior  officer  present  may  direct  the  convening  authority  to  reconvene 

summary  court-martial.    C.  M.  O.  29,  1915,  11.    See  also  RECONVENING,  16. 

SENIORITY. 

1.  Promotion  by  seniority.    See  PROMOTION,  172-174. 

2.  Superior  officer — Seniority  in  the  Navy  list  conveys  superiority.    See  SUPERIOR 

OFFICERS,!. 
SENTENCES. 

1.  Abbreviated  Improperly.    See  ABBREVIATION,  2. 

2.  "Accessories  "—Used  ha  sentences  of  civil  courts.    See  ACCESSORIES,  1. 

3.  Same— Definition— The  words  "other  accessories  of  said  sentence"  when  used  in  the 

sentence  of  a  general  court-martial  shall  be  understood  to  include  the  following: 
The  person  so  sentenced  shall  perform  hard  labor  while  confined  pursuant  to  such 
sentence,  and  after  his  accrued  j>ay  (and  allowances  in  the  case  of  an  enlisted  man  of 
the  Marine  Corps)  shall  have  discharged  his  indebtedness  to  the  United  States  at  the 
date  of  approval  of  such  sentence,  shall  forfeit  all  pay  (and  in  the  case  of  an  enlisted  man 
of  the  Marine  Corps  sentenced  to  dishonorable  discharge,  all  allowances)  that  may 
become  due  him  during  a  period  equivalent  to  the  term  of  such  confinement  (or  if 
sentenced  to  dishonorable  discharge  during  his  current  enlistment),  except  the  sum 
of  $3  per  month  during  such  confinement  for  necessary  prison  expenses,  and  if  dis- 
honorably discharged  pursuant  to  such  sentence,  a  further  sum  of  $20  to  be  paid  him 
when  discharged.  (R-816  (5).)  See  C.  M.  O.  3, 1914,  4. 

4.  Accused— Sentence  furnished  accused.    See  ACCUSED,  36,  57;  RECORD  OF  PROCEED- 

INGS, 32. 

5.  Additional  numbers— Included  in  counting  numbers  lost  by  sentence.    See  ADDI- 

TIONAL NUMBERS,  2. 

6.  Adequate.    See  ADEQUATE  SENTENCES. 

7.  Adhered  to— Should  be  in  handwriting  of  judge  advocate.    See  REVISION,  17. 

8.  Alias — Of  accused  should  be  included.    See  ALIAS,    4. 

9.  Allowances.   See  ALLOWANCES,  1,  3,  4,  8-lp. 

10.  Alterations— The  judge  advocate  in  recording  the  sentence  in  revision  made  a  clerical 
error  in  the  phraseology  and  also,  having  made  a  mistake  in  writing  a  word;  attempted 
to  correct  his  error  by  writing  the  word  "adhere"  over  it.  It  has  previously  been 
pointed  out  that  if  the  judge  advocate  makes  a  mistake  in  recording  the  sentence 
he  should  rewrite  the  whole  page.  (See  Forms  of  Procedure,  1910,  p.  43;  C.  M.  O.  6, 
1916,  pp.  3-4.)  It  has  also  repeatedly  been  remarked  that  the  members  of  the  court, 
as  well  as  the  judge  advocate,  are  responsible  for  errors  of  the  above  character  appear- 
ing in  the  record.  (See  C.  M.  O.  55, 1910,  pp.  9-10;  14, 1913,  p.  5;  27,  1913,  p.  12;  17, 
1915,  p.  2;  35,1915,  p.  7;  6,  1916,  p.  4;  10,  1916,  3.) 


570  SENTENCES. 

11.  Ambiguous.   See  C.  M.  O.  11, 1915;  DISCHARGE,  3. 

12.  Antedating.    See  ANTEDATING,  3;  CONFINEMENT,  1,  9. 

13.  Approved— Only  that  accused  might  not  escape  punishment.    See  APPROVAL  ONLY 

THAT  ACCUSED  MIGHT  NOT  ENTIRELY  ESCAPE  PUNISHMENT. 

14.  Army— Sentence  imposed  by  Army  court-martial  mitigated  by  President  after  return 

of  accused  to  naval  jurisdiction.    See  MARINES  SERVING  WITH  ARMY,  6. 
Mitigation  of  sentence  after  final  approval.    See  ARTICLES  OF  WAR,  3. 
Sentence  of  dismissal  mandatory  r>y  law  for  "conduct  unbecoming  an  officer  and 

a  gentleman."    See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  6; 

COURT,  169. 

15.  Authentication  of.    See  AUTHENTICATION  OF  SENTENCES,  1;  COURT,  149, 175. 

16.  Bad-conduct  discharge.    See  BAD-CONDUCT  DISCHARGE. 

17.  Bread  and  water.    See  BREAD  AND  WATER. 

18.  Civil  court  sentence  suspended— Jurisdiction  of  naval  courts-martial.    See  JURISDIC- 

TION, 124. 

19.  Clemency.   See  CLEMENCY,  13,  41,  54,  57. 

20.  Clerical  errors— Correction  of,  in  revision.    See  CLERICAL  ERRORS,  3;  RECORD  OF 

PROCEEDINGS,  26. 

21.  Same — The  department  returned  a  general  court-martial  record  for  revision  as  "the 

sentence  contained  a  clerical  error,  inasmuch  as  the  word  'to'  was  omitted  before  the 
words  'be paid'."  C.  M.  O.  7, 1897,  2. 

22.  Commuting  sentences.   See  COMMUTING  SENTENCES. 

23.  "Conduct  unbecoming  an  officer  and  a  gentleman"— Dismissal  should  be 

mandatory  in  Navy.  See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  6; 
COURT,  169. 

24.  Confinement.   See  CONFINEMENT;  DECK  COURTS,  35-37. 

25.  Confinement  to  limits  of  ship,  post,  or  station— Not  viewed  with  favor.    See 

CONFINEMENT,  12,  19,  20,  21,  22. 

26.  Convening  authority  can  not  dictate— To  the  court  what  sentence  to  adjudge. 

See  CONVENING  AUTHORITY,  60;  CRITICISM  OF  COURTS-MARTIAL,  36. 

27.  Court— Should  not  prescribe  in  its  sentence  how  or  when  such  sentence  shall  be  exe- 

cuted. Such  matters  are  properly  within  the  province  of  the  reviewing  authority. 
See  COURT,  168;  GENERAL  ORDER  No.  110,  July  27, 1914,  21. 

28.  Court-martial  orders— Should  be  consulted  to  secure  uniformity.    See  COURT- 

MARTIAL  ORDERS,  17. 

29.  Date— To  begin.    C.  M.  0. 27, 1887, 16.    See  also  ANTEDATING,  3. 

30.  Death.   See  DESERTION,  137;  CHARGES  AND  SPECIFICATIONS,  47;  MILITARY  COMMIS- 

SIONS, 1:  SENTENCES,  70, 

31.  Deck  court.   See  DECK  COURTS,  51-56. 

32.  Deprivation  of  liberty  on  shore  on  foreign  station.    See  DEPRIVATION  OF  LIBERTY 

ON  SHORE  ON  FOREIGN  STATION. 

33.  Designation  and  name  of  accused — Should  be  included  in  sentence.    C.  M.  O.  37, 

1909,  3;  42,  1909,  6;  55,  1910,  8;  30,  1910,  7;  1,  1913,  5;  20,  19,  1913,  3;  42  1914,  5;  2 
1915,  2.  But  see  C.  M.  O.  12,  1914;  17,  1914;  23,  1914,  where  name  and  designation 
was  erroneously  omitted.  See  also  DESIGNATION  OF  ACCUSED,  2-4. 

34.  Dictate — Convening  authority  can  not  dictate  to  court  what  sentence  to  adjudge. 

See  CONVENING  AUTHORITY,  60:  CRITICISM  OF  COURTS-MARTIAL,  36. 

35.  Disapproved  by  convening  authority — No  sentence  can  be  carried  into  execution 

which  has  been  disapproved  by  the  convening  authority  (fleet)  and  the  Secretary  of 
the  Navy  is  without  power.  See  CONVENING  AUTHORITY,  21;  CRITICISM  OF  COURTS- 
MARTIAL,  35;  REVIEWING  AUTHORITY,  20. 

36.  Discharge.    See  BAD-CONDUCT  DISCHARGE;  DISHONORABLE  DISCHARGE;   ORDINARY 

DISCHARGES. 

Remission  of  unexecuted  loss  of  pay  by  discharge.     See  BAD-CONDUCT  DIS- 
CHARGE, 3. 

37.  Dissolution  of  court — Sentence  imposed  prior  to  dissolution  may  be  approved.    See 

C.  M.  O.  4, 1914, 1. 

38.  Dismissal.    See  ACTING  BOATSWAINS,  2;  DISMISSAL. 

39.  Erasures.   See  ERASURES,  2,  3. 

40.  Extra  police  duties.   See  EXTRA  POLICE  DUTY. 

41.  Excessive.   See  CONVENING  AUTHORITY,  60;  EXCESSIVE  SENTENCES. 

42.  Executed  fully— Can  not  be  any  restoration.    See  PARDONS,  35. 


SENTENCES.  571 

43.  Same — When  the  sentence  of  a  naval  court-martial,  lawfully  confirmed,  has  been 

executed,  the  proceedings  in  the  case  are  no  longer  subject  to  review  by  the  President; 
they  have  passed  beyond  his  control  and  are  at  an  end.  (15  Op.  Atty.  Gen.,  291). 
File  26516-9,  J.  A.  G.,  May  28, 1909.  Seealso  7  Op.  Atty.  Gen.,  99;  25  Op.  Atty.  Gen., 
581;  NUMBERS,  Loss  or,  11, 12. 

44.  Execution,  impossibility  ot— To  lose  ten  numbers  when  only  seven.    C.  M.  O.  18, 

1897,  5. 

45.  Exemptions  in  sentences.    See  EXEMPTIONS  IN  SENTENCES. 

4fi.  Extra  police  duties.    See  DECK  COURTS,  56;  EXTRA  POLICE  DUTY. 

47.  Figures— The  sentence  as  recorded  in  the  handwriting  of  judge  advocate  should  express 

the  period  of  confinement  in  figures  as  well  as  in  words.    G.  C.  M.  Rec.  30083. 
4S.  Flogging.    See  DESERTION,  119;  FLOGGING,  Marine  Corps  Gazette,  March,  1916,  p.  45. 

49.  Form  of  sentence — Sentences  of  general  courts-martial  in  the  cases  of  enlisted  men 

of  the  Navy  and  Marine  Corps  which  include  confinement  at  hard  labor  will  ordi- 
narily be  in  the  following  form: 

"The  court  therefore  sentences  him, , ,  United  States (to 

be  reduced  to  the  rating  (or  rank)  of ),  to  be  confined  for  a  period  of  — 

(then  to  be  dishonorably  discharged  from  the  United  States  naval  service),  and  to 
suffer  all  the  other  accessories  of  said  sentence,  as  prescribed  by  the  Navy  Regu- 
lations." (R-816(4).) 

50.  Fraudulent  enlistment — Enlistments  in  both  Navy  and  Marine  Corps.    See  FRAUDU- 

LENT ENLISTMENT,  83. 

Sentence  should  include  dishonorable  discharge.  See  FRAUDULENT  ENLISTMENT, 
40,84. 

51.  Guard  duty.    See  GUARD  DUTY,  3. 

52.  Handwriting— Sentences  must  be  in  handwriting  of  deck-court  officers,  recorders,  or 

judge  advocates.  C.  M.  O.  24, 1909, 3;  29, 1914, 5;  42, 1914, 5;  8, 1915;  G.  C.  M.  Rec. 
22105;  22149.  See  also  HANDWRITING,  7-9;  REVISION.  18,  35,  36. 

53.  Hard  labor.   See  HARD  LABOR. 

54.  Illegal.    See  BREAD  AND  WATER,  4. 

55.  Inappropriate  sentences— "  To  be  discharged  with  bad -conduct  discharge,  as  a  de- 

serter, the  discharge  to  be  dated  upon  the  day  he  left  the  Juniata,  May  second, 
eighteen  hundred  and  eighty-nine."  Disapproved  by  the  department  as  "being 
both  improper  and  inadequate."  C.  M.  O.  70,  1889. 

Similarly,  "to  be  dishonorably  discharged  as  a  deserter  from  the  service."    De- 
partment disapproved  as  inappropriate  and  inadequate.    C.  M.  O.  82,  1889. 
5'i.  Same — Department  does  not  favor  sentences  of  public  reprimand  for  officers;  loss  of 
pay  for  commissioned  officers  other  than  commissioned  warrant  officers;  or  suspen- 
sion from  duty.    See  PAY,  100, 109.  PUBLIC  REPRIMAND,  5;  SUSPENSION  FROM  DUTY. 

57.  Insanity.   See  INSANITY,  37, 38, 39. 

58.  Interlineations— The  sentence  must  be  recorded  by  the  deck-court  officer's,  recorder's 

or  judge  advocate's  own  hand  and  must  be  free  from  erasures  and  interlineations. 
G.  C.  M.  Rec.  23760.  See  also  File  26251-11076,  Sec.  Navy,  Oct.  13,  1915,  where  an 
initialed  interlineation  was  held  not  to  invalidate. 

In  reviewing  the  general  court-martial  record  in  the  case  of  a  private,  it  was  noted 
that  the  sentence  contained  an  interlineation  initialed  by  the  judge  advocate.  While 
this  irregularity  was  not  such  as  would  invalidate  the  proceedings,  the  department 
disapproves  such  action  by  the  judge  advocate.  The  members  of  the  court,  as  well 
as  the  judge  advocate,  are  responsible  that  the  record  does  not  contain  irregularities 
of  this  character.  ('Forms  of  Procedure,  1910,  p.  43.)  File  26251-11076,  Sec.  Navy, 
Oct.  13, 1915;  G.  C.  M.  Rec.  No.  31051;  C.  M.  O.  35. 1915,  7. 

59.  Joinder.   See  JOINDER,  TRIAL  IN,  15. 

60.  Judge  advocate— Must  sign  sentence.    C.  M.  O.  30, 1900. 

61.  Mandatory.   See  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN,  6;  RE- 

DUCTION IN  RATING,  19. 

62.  Marine  serving  with  Army.    See  MARINES  SERVING  WITH  ARMY,  6,  7. 

63.  Midshipmen.   See  MIDSHIPMEN,  32. 

64.  Mitigation  or  remission  after  final  action.    See  CONVENING  AUTHORITY,  62. 

65.  Name  and  designation — Of  accused  should  be  included  in  sentence.    See  DESIGNA- 

TION OF  ACCUSED,  2, 3;  NAMES,  6;  SENTENCES,  33. 

66.  Same — Must  be  in  handwriting  of  recorder  or  judge  advocate.    See  DESIGNATION  OF 

ACCUSED,  4. 

67.  Numbers  In  sentence.    See  SENTENCES,  47. 

68.  Numbers,  loss  of.    See  NUMBERS,  Loss  OF. 


572  SENTENCES. 

09.  Officers— The  policy  of  the  department  does  not  favor  a  sentence  involving  solely 
loss  of  pay  in  the  case  of  commissioned  officers  other  than  commissioned  warrant 
officers.  C.  M.  O.  48,  1915,  5.  See  also  PAY,  100. 

70.  Old  sentences — "To  be  fined  five  dollars  and  shot  to  death  but  recommended  to 

mercy."    G.  C.  M.  Rec.  lib,  July  16, 1812. 
"To  be  privately  advised  to  be  more  circumspect."    G.  C.  M.  Rec.  111. 

71.  Pay,  forfeiture  of.   See  PAY.  * 

72.  Same — Remission  by  discharge.    See  BAD-CONDUCT  DISCHARGE,  3. 

73.  Paymaster  General— The  following  sentence  was  confirmed  by  the  President:  "The 

court  thereupon  sentenced  the  said  Paymaster  General  *  *  *  'to  be  dismissed 
from  the  position  of  Chief  of  the  Bureau  of  Provisions  and  Clothing  in  the  Depart- 
ment of  the  Navy.  To  be  suspended  from  rank  and  duty  as  a  pay  inspector,  on 
furlough  pay.  for  three  years,  and  to  retain  his  present  number  in  his  grade  during 
that  period.'5'  C.  M.  O.  8,  1886,  33. 

74.  Paymaster's  clerk— While  not  necessary  sentence  of  dismissal  was  confirmed  by 

President.    C.  M.  0. 24, 1915;  26, 1915.    See  also  PAYMASTER'S  CLERKS,  8,  9. 

75.  Physical  condition  of  accused.   See  CLEMENCY,  41. 

70.  Phraseology — In  one  case  the  department  remarked — The  sentence  was  not  expressed 
in  the  phraseology  outlined  in  the  Forms  of  Procedure,  1910,  p.  42.  The  members  of 
the  court,  as  well  as  the  judge  advocate,  should  always  remember  that  "while  the 
phraseology  used  [hi  the  Forms  of  Procedure]  need  not  be  absolutely  adhered  to" 
(Forms  of  Procedure,  1910,  p.  3)  it  should  not  be  departed  from  unless  there  is  a  very 
good  reason  for  doing  so.  C.  M.  O.  6,  1916,  4. 

77.  President— May  remit  sentences,  etc.    See  PARDONS;  PRESIDENT  OF  THE  UNITED 

STATES. 

78.  Public  reprimand.    See  PUBLIC  REPRIMAND. 

79.  Bank— Of  accused,  when  an  officer  or  marine,  should  be  included  in  sentence.    See 

SENTENCES,  33. 

80.  Rating—  Of  accused  when  an  enlisted  man  of  the  Navy  should  be  included  in  sentence. 

See  SENTENCES,  33. 

81.  Reconsideration  of.    See  File  26258-302,  May  29, 1912.    See  also  16  Op.  Atty.  Gen.  104. 

82.  Reduction  In  rating.    See  REDUCTION  IN  RATING. 

83.  Remission  or  mitigation  after  final  action.    See  CONVENING  AUTHORITY,  62. 

84.  Remission  of  unexecuted  loss  of  pay— By  discharge.    See  BAD-CONDUCT  DIS- 

CHARGE, 3. 

85.  Remitted— Sentence  should  be  remitted  only  as  an  act  of  clemency  toward  the  ac- 

cused .  File  26287-560,  Sec.  Navy,  Aug.  3, 1910.  See  also  File  26251-7004:2,  Sec.  Navy, 
Mar.  31, 1913;  ALLOTMENTS,  6,  7;  CLEMENCY,  53;  PAY, 23. 

86.  Remitted  In  toto— To  avoid  a  miscarriage  of  justice.    C.  M.  0. 37, 1915, 1. 

87.  Restoration  to  duty  In  sentence — Court  has  no  power  to  sentence  an  accused  to  be 

released  and  restored  to  duty  upon  the  expiration  of  the  period  of  confinement. 
C.  M.  O.  60,  1892;  41,  1900;  37,  1909,  3.  See  also  COURT,  168. 

88.  Restriction.   See  RESTRICTION. 

89.  Reviewing  authority — Court  usurps  prerogatives  of  reviewing  authority  by  adjudging 

an  inadequate  sentence.    See  COURT,  164. 

90.  Same — Reviewing  authority  of  a  summary  court-martial  disapproved  the  proceedings 

but  approved  the  sentence.    See  REVIEWING  AUTHORITY,  20. 

91.  Revision — Sentence  adjudged  in  revision  after  dissolution  of  court  is  of  no  legal  effect. 

See  COURT,  68;  SENTENCES,  37. 

92.  Same — Sentence,  even  if  adhered  to,  should  be  in  the  handwriting  of  the  judge  ad- 

vocate.   See  REVISION,,  18;  SENTENCES,  52. 

93.  Revoked  or  removed — The  sentence  of  an  officer  who  was  convicted  by  general  court- 

martial  of  negligence  which  caused  the  loss  of  his  ship,  was  later  "removed  in  con- 
sequence of  the  good  conduct "  of  said  officer  during  the  War  of  the  Rebellion.  G.  O . 
101,  Mar.  11,  1869.  See  also  G.  O.  102,  Mar.  11,  1869,  and  G.  O.  104,  Mar.  13,  1869,  in 
which  sentences  were  "revoked."  In  these  cases  pay  which  had  been  forfeited  was 
restored. 

94.  Revoked— By  the  Secretary  of  the  Navy,  after  having  been  promulgated.    G.  O.  104, 

Mar.  13, 1869;  113,  Mar.  18. 1869;  102,  Mar.  11, 1869;  101,  Mar.  11, 1809. 

95.  Secretary  of  the  Navy — May  place  an  officer  on  furlough  if  he  is  not  dismissed  when 

found  guilty  of  vulgar  and  indecent  acts  and  associations.  C.  M.  0. 49, 1915,  27.  See 
also  OFFICERS,  106. 

96.  Same — Power  over  sentence.    See  SECRETARY  OF  THE  NAVY,  50-57. 


SENTENCES.  573 

97.  Severe— Proceedings  and  finding  approved  but,  in  view  of  unanimous  recommenda- 

tion to  clemency  and  the  fact  that  the  sentence  appeared  to  be  a  severe  one,  the 
sentence  was  disapproved.    C.  M.  O.  87,  1907,  1. 

98.  Setting  aside.   See  SETTING  ASIDE. 

99.  Signatures  of  members.    See  AUTHENTICATION  OF  SENTENCES,  1;  COURT,  175. 

100.  Signed— The  sentence  of  a  summary  court-martial  shall  be  signed  by  all  the  members 

and  the  recorder.    C .  M.  0 . 15, 1910, 12.    See  COURT,  175,  where  signature  was  omitted . 

101.  Solitary  confinement.   See  SOLITARY  CONFINEMENT. 

102.  Statutory.   See  STATUTORY  SENTENCES. 

103.  Stripped  of  insignia.    See  C.  M.  O.  7,  1888,  1;  An.  Rep.,  J.  A.  G.,  1908,  p.  21. 

104.  Substitution— After  a  case  has  been  finally  acted  on  the  reviewing  authority  is  not 

authorized  to  change  a  sentence  involving  reduction  to  "seaman  gunner"  to  reduction 
to  "seaman"  as  this  would  be  substituting  a  different  sentence  for  that  imposed  by 
the  court,  and  would  not  be  authorized.  C.  M.  O.  49,  1914,  6.  See  also  SEAMAN 
GUNNERS,  4. 

105.  Same— Court  not  to  substitute  punishment  of  different  nature  from  limitations— A 

court  is  not  to  sentence  an  officer  to  punishment  which  is  of  a  different  nature  than 
that  prescribed  by  the  limitations,  as  restriction  to  ship  or  station,  loss  of  pay,  sus- 
pension from  duty,  hi  the  case  of  drunkenness  where  the  limitation  for  this  offense 
is  "to  lose  ten  (10)  numbers."  C.  M.  O.  21, 1910, 17;  1, 1911,  3. 

106.  Summary  courts-martial.    See  SUMMARY  COURTS-MARTIAL,  86-92. 

107.  Suspended  for  one  year — Action  withheld  for  one  year.    C.  M.  O.  3,  1909. 

108.  Suspension  from  duty.    See  SUSPENSION  FROM  DUTY. 

109.  Suspended  twice  by  President— And  then  remitted.    See  DISMISSAL,  33. 

1 10.  Typewritten — The  finding  and  sentence  of  deck  courts  and  courts-martial  should  never 

be  typewritten,  but  should  be  in  the  handwriting  of  the  deck  court  officer,  recorder  or 
judge  advocate.  C.  M.  0. 24, 1909, 3.  Seealso  HANDWRITING,  9;  REVISION,  35;  36. 

111.  Uniformity— Where  the  same  summary  court-martial  adjudged  sentences  in  two 

different  cases  for  practically  identical  offenses  which  varied  greatly,  the  department 
stated:  "Since  it  is  obvious  that  the  best  interests  of  discipline  and  justice  can  not  be 
served  if  the  equality  of  punishments  is  disregarded,  the  department  directed  the  con- 
vening authority  in  these  cases  to  exercise  care  in  the  future  that  sentences  of  summary 
courts-martial  conform  to  an  established  schedule  before  final  approval  and  publi- 
cation. C.  M.  O.  10,  1911,  8. 

112.  Same— Courts-martial  should  use  prescribed  forms  of  sentences  in  order  to  secure 

uniformity.    C.  M.  O.  37,  1914;  52,  1914. 

"Undue  leniency  is  as  hurtful  to  the  proper  conduct  of  a  military  command  as 
undue  severity  and  should  be  carefully  avoided."  File  20971-19,  Sec.  Navy,  Aug. 
20, 1909. 

113.  Undesirable  sentences.    See  PUBLIC  REPRIMAND,  5;  SENTENCES,  55,56;  SUSPEN- 

SION FROM  DUTY,  4,5,9-13. 

114.  Unique  sentence.    C.  M.  O.  31,  1881,  2. 

115.  Unusual  sentence.    C.  M.  O.  27, 1887,  16. 

116.  Vote  on— Divulging.    See  OATHS,47. 

117.  Warrant  officers  (commissioned).    See  WARRANT  OFFICERS,  29,  30. 

118.  "Year" — Where  word  "year"  is  used,  year  is  construed  to  mean  12  calendar  months. 

File  26504-24,  J.  A.  G.,  Nov.  3,  1908. 

SENTINELS. 

1.  Abuse  of— Officer  tried  by  general  court-martial.    See  COUNTERSIGN,  1;  OFFICERS, 

110;  SENTINELS,  18. 

2.  Condition  when  posted— The  department  mitigated  the  sentence  of  a  sentinel  who 

had  been  found  guilty  of  "Leaving  post  before  being  regularly  relieved"  because 
"of  the  fact  that  a  doubt  exists  as  to  the  condition  of  the  accused  for  duty  at  the  time 
he  was  posted  as  a  sentry."  C.  M.  O.  69,  1897,  2. 

3.  Corporal  of  the  guard — Tried  by  general  court-martial  for  assaulting  and  striking  a 

general  court-martial  prisoner.    C.  M.  O.  4, 1896. 

4  Countersign.   See  COUNTERSIGN. 

5  Disciplinary  Barracks.    See  SENTINELS,  13. 

6  Disrespect— Officer  tried  by  general  court-martial.    See  COUNTERSIGN,  1;  OFFICERS, 

110;  SENTINELS,  18. 

7  Drunk— Sentinel  posted  when  drunk.    See  SENTINELS,  2, 15, 16. 

8  Escaping  prisoners — Duty  of  sentinel.    See  MANSLAUGHTER,  9;  PRISONERS,  19. 

9  Firearms— Use  of.    See  FIREARMS,  2. 


574  SENTINELS. 

10.  Guard  duty.    See  MANSLAUGHTER.  9;  SENTINELS,  13. 

11.  "Interfering  with  a  sentinel  "—Enlisted  man  tried  by  general  court-martial  on 

this  charge.    C.  M.  O.  102,  1903,  2. 

12.  Marine  Corps.   See  MANSLAUGHTER,  9;  SENTINELS,  13. 

13.  Naval  prisons — "  A  sentinel  in  charge  of  prisoners  or  detentioners  shall  be  instructed 

that  his  most  important  duties  are  to  preserve  the  peace  of  'the  prison  or  detention 
system,  prevent  the  escape  of  prisoners  or  detentioners,  and  observe  their  performance 
of  the  work  assigned,  lie  shall  maintain  a  soldierly  bearing  and  shall,  as  far  as 
practicable,  use  military  commands  in  formation,  marching,  halting,  breaking  ranks, 
and  in  controlling  prisoners  or  detentioners."  (  Manual  for  the  Government  of  United 
States  Naval  Prisons  and  Detention  Systems,  1916,  Sec.  90,  pp.  18-19.) 

14.  Officer — Tried  by  general  court-martial  on  charge  of  "conduct  to  the  prejudice  of  good 

order  and  discipline"  for  disrespect  and  abuse  of  a  sentinel.  See  COUNTERSIGN,  1; 
OFFICERS,  110;  SENTINELS,  18. 

15.  Posted  when  intoxicated—  The  accused  was  intoxicated  when  posted  as  a  sentinel — 

Was  charged  with  "Drunkenness  on  post"— The  department  stated:  "It  appears 
from  the  evidence  that  the  accused  was  *  *  *  when  posted  as  a  sentinel;  and, 
while  such  fact  does  not  render  him  any  the  less  liable  for  the  offenses  of  which  he  has 
been  found  guilty,  the  department  considers  that  it  does  to  some  extent  relieve  his 
delinquencies  of  their  flagrancy."  (See  C.  M.  O.  62,  1894;  89,  1895.)  C.  M.  O.  21 
1897,  2.  See  also  C.  M.  O.  136, 1900;  142,  1900;  80,  1898. 

16.  Same— Should  not  be  allowed  to  mount  guard  when  intoxicated.    C.  M.  0. 136.  1900; 

142,  1900. 

17.  Prisoners— Duty  of  sentinel  when  prisoner  attempts  to  escape.    See  MANSLAUGHTER,  9. 

18.  Respect  for — An  officer  having  been  found  guilty  of  "Conduct  to  the  prejudice  of  good 

order  and  discipline,"  the  specifications  thereunder  alleging  that  he  abused  the  senti- 
nel and  in  general  acted  prejudicial  to  good  order  and  discipline,  the  department  stated 
in  part: "  The  department  deems  it  proper  to  call  attention  to  the  remarkable  fact  that 
an  officer  of  his  age.  rank,  and  an  experience  in  the  service  covering  a  period  of  23  years 
should  display  such  ignorance  of  the  duties  of  sentinels,  such  lack  of  respect  for  the 
sacred  character  of  the  countersign,  and  such  a  thorough  disregard  of  the  proper 
treatment  of  inferiors  charged  with  responsible  duties."  C.  M.  O.  95, 1893,  3. 

SENTRIES.   See  SENTINELS. 

SEPARATE  OR  DETACHED  BATTALIONS. 

1.  Deck  courts — Convening  of  by  commanding  officers  of.    See  DECK  COURTS,  10-14; 

SUMMARY  COURTS-MARTIAL,  22. 38. 

2.  Summary  courts-martial— Convening  of  by  commanding  officers  of.    See  SUMMARY 

COURTS-MARTIAL,  22, 38. 

SEPARATE  OR  DETACHED  COMMAND. 

1.  Deck  courts— Convening  of  by  commanding  officers  of.    See  DECK  COURTS,  10-14; 

SUMMARY  COURTS-MARTIAL,  22,  38. 

2.  Summary  courts-martial— Convening  of  by  commanding  officers  of.    See  SUMMARY 

COURTS-MARTIAL,  22, 38. 

SERVICE  ON  NAVAL  COURTS-MARTIAL.    See  COURT,  170. 

SERVICE  RECORDS.    See  also  DESCRIPTIVE  LISTS;  EVIDENCE,  DOCUMENTARY,   19; 
LETTERS,  16;  REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD. 

1.  Acquittals — The  commanding  officer  of  a  naval  vessel  is  not  authorized  to  make  entry 

upon  the  enlistment  record  of  an  enlisted  man  who  has  been  acquitted  of  the  offense 
charged  against  him  by  a  duly  constituted  court,  as  such  action  would  be  contrary 
to  R-624  (2).  File  26287-587. 

2.  Charged  with  "  Desertion  " — "An  entry  upon  the  enlistment  [service]  record  that 

a  man  deserted  upon  a  certain  date  is  not  legal  evidence  of  desertion  by  him,  but  is 
evidence  only  that  he  is  charged  with  desertion."  File  26251-1963:1,  J.  A.  G.,  Aug.  17, 
1910,  p.  7.  SERVICE  RECORDS,  16,  overrules  above. 

3.  Same— Where  an  accused  was  found  guilty  of  "  Desertion,"  the  only  evidence  intro- 

duced being  "his  enlistment  record  and  descriptive  list  and  an  entry  in  the  log  of 
the  U.  3.  R.  8.  Vermont,  the  former  stating  that  the  accused  had  run  at  Newport. 
July  7, 1901,  from  the  U.  8.  8.  Alabama,  and  the  latter  that  he  was  brought  on  board 
thell.S.R.S.  Vermont  August  10  following."  The  accused  made  no  defense  and  the 
court  found  him  guilty  of  the  charge  of  desertion.  "The  documents  introduced  in 


SERVICE   RECORDS.  575 

evidence  afforded  no  proof  whatever  of  the  commission  of  the  offense  to  which  they 
related,  but  merely  of  the  fact  that  the  accused  was  charged  with  having  left  the 
Alabama  and  was  delivered  on  board  the  Vermont,  wholly  insufficient  to  establish  the 
offense  of  desertion  or  that  of  a  lesser  offense,  absence  without  leave."  C.  M.  O.  156, 1901. 
See  also  C.  M.  0. 52, 1902.  SERVICE  RECORDS,  16,  overrules  above. 

4.  Collateral  matters.    See  REPORTS  OF  DESERTERS  RECEIVED  ON  BOARD,  4. 

5.  Copy  of  appended  to  record— Certified  copy,  not  original,  appended  to  record. 

C.  M.  0. 31, 1896, 3.    Seealso  EVIDENCE,  DOCUMENTARY, 36, 45;  SERVICE  RECORDS,  23. 

6.  Deck  courts— Entries  in  service  record  of  convictions  by  deck  courts  must  be  authen- 

ticated by  the  signature  of  the  commanding  officer.    See  DECK  COURTS,  21. 

7.  Definition.   See  SERVICE  RECORDS,  15. 

8.  Departure  from  service— Service  records  are  inadmissible  in  "Desertion  "  cases  except 

to  prove  departure  from  the  service.  C.  M.  O.37, 1909, 9;  47, 1910, 9.  But  «et  SERVICE 
RECORDS,  16,  which  modifies  above. 

9.  Desertion.    C.  M.  0. 31, 1896, 2;  155, 1900;  76, 1901;  74  Ip03,  3;  28  1904,  3;  30, 1910,  6. 

10.  Same  -"It  is  manifest  that  the  court  erred  in  admitting  the  extract  from  the  enlist- 

ment record  of  the  accused  as  evidence  of  the  offense,  viz, '  Desertion,'  therein  referred 
to .  The  entry  in  question  amounted  to  nothing  more  than  a  report  against  the  accused 
by  his  commanding  officer,  charging  him  with  'Desertion.'  Moreover,  there  was 
apparently  no  attempt  made  to  identify  the  document  introduced,  as  should  have 
been  done,  by  the  oral  testimony  of  its  proper  custodian.  Even  had  this  been  done, 
however,  the  enlistment  record  would  still  nave  been  not  properly  admissible,  as  the 
officer  who  signed  the  original  entry  *  *  .  *  was  available  as  a  witness,  and  should 
have  been  called  to  testify  in  the  premises."  C.  M.  0. 146, 1901, 1.  See  also  C.  M.  O. 
156, 1901, 1,  2.  But  see  SERVICE  RECORDS,  16. 

In  a  case  disapproved  because  the  evidence  was  insufficient  to  convict  the  depart- 
ment stated:  "It  is  not  manifest  to  the  department  why  the  judge  advocate  did  not 
produce  the  enlistment  [service]  record  of  the'  man  and  read  the  usual  entries  con- 
tained thereon,  showing  the  date  and  place  from  which  the  original  absence  took 
place."  C.  M.  O.37,  1909,  5.  Seealso  C.  M.  O.42, 1909.  16. 

Where  the  judge  advocate  introduced  and  thecourt  received  in  evidence  an  extract 
from  the  accused's  service  record  setting  forth  the  fact  that  he  had  disposed  of  his 
uniform  and  effects,  the  department  held:  That,  "this  is  not  evidence,  but  an  ex  parte 
statement  of  th  e  commanding  officer  of  the  vessel  to  wh  ich  [th  e  accused]  was  attached , 
based  probably  upon  reports  made  to  him;  and  the  court  erred  in  receiving  it  in  evi- 
dence." "It  has  been  held  by  the  department  that  an  enlistment  [service]  record, 
introduced  in  a  trial  for  desertion,  is  only  evidence  to  show  the  departure  of  the 
man  from  his  station.  Any  attmding  circumstances  which  may  have  been  recorded 
in  the  enlistment  (service)  record  must  be  proved  by  confrontation  of  the  accused 
with  the  witnesses  against  him."  C.  M.  O.  47, 1910,  9.  Overruled  by  C.  M.  O.  31, 
1915, 14-16,  contained  in  SERVICE  RECORDS,  16. 

11.  Evidence— The  statement  of  age  contained  in  the  service  record  is  evidence  of  such 

a  character  as  may  be  accepted  by  naval  courts-martial.    C.  M.  O.  94, 1905,  1. 

12.  Fraudulent  enlistment— The  accused  was  charged  with  "Fraudulent  enlistment," 

and  the  judge  advocate  introduced  the  service  record  of  the  accused.  Counsel  for 
accused  objected  to  the  introduction  of  this  service  record  of  the  accused  in  his  fraudu- 
lent enlistment  on  the  ground  that  it  was  irrelevant.  Held:  Pending  the  introduc- 
tion of  prima  facie  proof  that  the  accused  and  the  alias  were  one  and  the  same  person 
this  service  record  was  clearly  irrelevant  and  the  court  erroneously  overruled  the 
objection  to  its  introduction.  C.  M.  O.  6, 1913,  3;  see  also  C.  M.  O.  94, 1905, 1. 

13.  Intent,  proof  of— An  entry  upon  an  enlistment  record  properly  identified  is  always 

admissible  inevidence.  Such  anentry  is  no  proof,  however,  of  intent,  as.  the  specific 
intent  to  abandon  the  naval  sen  ice  or  terminate  the  pending  contract  oienlistment. 
File  3047-04,  J.  A.  G.  Bui  stc  SERVICE  RECORDS,  16,  which  modifies  above. 

14.  Same-r"An  entry  upon  the  enlistment  record  that  a  man  deserted  upon  a  certain 

date  is  not  legal  evidence  of  a  desertion  by  him,  but  is  evidence  only  that  he  is  charged 
with  desertion."  File  26251-1963:1.  But  see  SERVICE  RECORDS,  16,  which  modifies 
above. 

15.  Nature  of— An  enlistment  record  is  an  "oripirr!  document"  and  "is  the  official  his- 

tory of  the  man's  service,  including  his  conduct  record,  during  the  period  of  sucb 
enlistment,  expressly  required  by  law  anti  regulations  to  be  kept  for  purposes  ol 
record."  C.  M.  O.  106,  1903,  4.  See  also  C.  M.  O.  74,  1903,  2;  LETTERS,  16. 

50756°— 17 37 


576  SERVICE    RECORDS. 

16.  Same— "Service  Records"  and  "Reports  of  Deserters  Received  on  Board"  are  such 

documents  as  may,  when  properly  identified  and  produced,  be  admitted  in  evidence. 
The  general  rule  is  that  it  is  sufficient  if  the  record  is  kept  in  the  discharge  of  a  public 
duty  and  is  a  convenient  and  appropriate  mode  of  discharging  that  duty  in  order 
that  it  may  be  admitted  as  a  public  document.  Thus,  a  record  has  been  held  admis- 
sible if  it  was  kept  by  the  direction  of  superior  officers  and  in  accordance  with  the 
rules  and  practice  of  the  office.  (17  Cyc.,  307.)  The  entries  made  in  service-record 
books  and  official  certificates  are  not  in  tne  nature  of  private  entries  or  memoranda, 
since  they  are  made  by  public  officers,  whose  duty  it  is  to  record  truly  the  facts  stated 
therein;  and  it  is  not  necessary  that  the  entries  be  made  personally  by  a  public  officer 
himself,  if  the  entries  are  made  under  his  direction  by  a  person  authorized  by  him. 

The  most  frequent  use  of  documentary  evidence  before  courts-martial  arises  in 
cases  of  trial  for  "Desertion,"  and  there  has  been  some  confusion  in  applying  the 
rules  of  evidence  in  this  regard.  The  following  rules  apply  to  the  use  of  "Service 
Records"  and  "Reports  of  Deserters  Received  on  Board"  as  evidence  before  naval 
courts-martial: 

The  mere  entry  of  desertion  in  a  "  Service  Record."  with  entries  of  attendant  cir- 
cumstances, is  not  sufficient  to  prove  the  gravamen  of  the  offense.  While  admissible, 
it  is  only  prima  facie  evidence,  open  to  explanation,  and  to  rebutting  testimony,  and 
while  it  would,  in  the  absence  of  rebutting  testimony,  show  that  the  accuse'd  was 
attached  to  and  serving  on  board  the  vessel,  or  stationed  at  the  navy  yard  or  naval 
station  indicated,  that  ne  was  found  to  be  absent  at  a  certain  time,  that  his  absence 
continued  for  10  days  or  more,  and  that  it  was  not  satisfactorily  explained,  it  would 
not  be  of  sufficient  weight  to  establish  the  fact  that  he  had  intended  permanently 
to  abandon  the  service,  that  he  was  possessed  of  the  animus  non  revertendi  when  the 
officer  made  the  entry.  Yet  the  entries  mentioned  are  admissible  evidence  of  the 
stated  facts  that  were  within  the  knowledge  of  the  officers  who  made  the  entries,  and 
are  by  no  means  without  probative  force  in  determining  whether  the  offense  of 
"Desertion"  has  been  committed. 

The  entries  on  a  "  Report  of  Deserter  Received  on  Board"  are  entitled  to  considera- 
tion when  such  report  has  been  properly  received  in  evidence,  to  prove  the  date  and 
place  of  return  from  unauthorized  absence  of  the  party  mentioned  therein,  together 
with  his  condition  at  the  time,  the  state  of  his  wearing  apparel,  etc.  (See  File 
26504-142,  J.  A.  G.,  May  18, 1912.) 

The  question  of  animus  non  revertendi  must,  of  necessity,  always  be  a  conclusion 
from  certain  facts,  and  is  for  the  court  to  determine  from  all  the  evidence  in  the  case. 

The  foregoing  (introduction  of  "Service  Record"  and  "Report  of  Deserters  Re- 
ceived on  Board")  "present  applications  in  various  instances  of  the  well-established 
rule  that  official  reports  and  certificates  made  contemporaneously  with  the  facts 
stated,  and  in  the  regular  course  of  official  duty,  by  an  officer  having  personal  knowl- 
edge of  them,  are  admissible  for  the  purpose  of  proving  such  facts."  (U.S.  v.  Corwin, 
129  U.  S.,  3K5;  U.  S.  v.  McCoy,  193  U.  S.,  602.)  They  are  not  conclusive  evidence  of 
the  facts  stated  therein,  and  rebutting  testimony  may  be  offered;  but  they  mav  well 
establish  the  case  for  the  prosecution,  if  an  accused  fail  to  produce  sufficient  evidence 
in  rebuttal  thereof  to  overcome  the  prima  facie  case  so  made  out  against  him. 

"  Manifestly  the  design  and  meaning  of  this  rule  is  not  to  convert  incompetent  and 
irrelevant  evidence  into  competent  and  relevant  evidence  simply  because  it  is  con- 
tained hi  an  official  communication."  (U.  S.  v.  Corwin,  129  U.  S.,  385-386.)  Should 
the  officer  who  made  the  entries  be  testifying  under  oath,  his  assertion  that  an  accused 
had  deserted  would  be  excluded  as  inadmissible;  he  could  only  be  heard  to  state 
facts  within  his  knowledge,  such  as  the  fact  that  the  accused  had  been  absent  without 
leave,  had  disposed  of  his  clothing  before  so  absenting  himself,  etc.,  from  which  the 
court  would  conclude  whether  such  facts  would  warrant  a  finding  of  guilty  on  a 
charge  of  "Desertion."  The  officer's  assertion  that  an  accused  had  deserted  would 
itself  imply  the  existence  of  primary  and  more  original  and  explicit  sources  of  infor- 
mation. 

The  facts  necessary  to  make  out  a  case  of  "Desertion"  may  be  proved  not  only  by 
the  records,  but  also  by  parol  evidence.  Where  records,  as  the  above,  are  introduced 
as  evidence,  it  is  not  necessary  or  required  that  the  officer  who  made  the  entries  be 
shown  to  be  unavailable  by  reason  of  death  .absence,  or  other  circumstances  of  such  a 
nature.  C.  M.  O.  31, 1915, 14-16.  See  also  EVIDENCE,  DOCUMENTARY,  19. 

17.  Not  best  evidence.    See  REPORTS  OF  DESERTER  RECEIVED  ON  BOARD,  3.    But  see 

SERVICE  RECORDS,  16. 


SERVICE   RECORDS.  577 

18.  Same — An  entry  on  an  enlistment  record  is  admissible  in  evidence  for  certain  pur- 

poses; if  practicable,  the  person  making  the  entry  should  be  called.  C.  M.  O.  156, 
Sept.  20, 1901.  See  also  C.  M.  O.  74, 1903, 3.  But  nee  SERVICE  RECORDS,  16. 

19.  Summary  courts-martial— Before  a  summary  court-martial  record  is  transmitted 

to  the  Judge  Advocate  General,  a  brief  transcript  shall  be  taken  therefrom  (except 
in  case  of  acquittal)  and  furnished  to  the  officer  of  the  deck  and  to  the  executive 
officer  for  entry,  respectively,  in  the  ship's  log  and  upon  the  service  record  of  the 
man  concerned.  This  transcript  shall  comprise  the  date  and  nature  of  the  offense 
proved  and  the  punishment  adjudged  as  approved  by  the  convening  and  reviewing 
authority,  with  the  date  of  such  approval.  If  the  said  punishment  be  disapproved 
or  mitigated  subsequently  by  the  department,  an  entry  to  that  effect  shall  be  made 
as  soon  as  notice  thereof  is  received.  If  bad -conduct  discharge,  or  both,  be  included 
in  the  sentence,  the  final  action  in  either  case  shall  be  similarly  entered.  The  tran- 
script and  entries  shall  be  authenticated  as  soon  as  made  by  the  signature  of  the 
commanding  officer.  (R-624(2).)  C.  M.  O.6, 1909, 4. 

20.  Plea  In  bar  held  valid — No  entry  should  be  made  on  service  record  of  a  summary 

court-martial  if  he  is  not  brought  to  trial  by  reason  of  his  plea  in  bar  of  trial  being 
adjudged  valid  by  thecourt.  File  26287-1677:1,  J.  A.  G.,  Aug.  22, 1913.  Seealso  PLEA 
IN  BAK,  9. 

21.  Previous  convictions — An  entry  of  conviction  by  a  deck  court  on  an  enlistment 

record  must  be  authenticated  by  the  signature  of  commanding  officer.    File  27217-12. 

22.  Procedure— In  introducing  in  evidence.    See  EVIDENCE,  DOCUMENTARY,  36,  45; 

23.  Record  of  Proceedings— The  accused  was  tried  before  a  general  court-martial  on  the 

charge  of  "  Desertion  "  and  pleaded  "not  guilty."  In  the  course  of  the  trial  the  judge 
advocate  went  on  the  stand  as  a  witness  for  the  prosecution  as  the  legal  custodian  of 
the  current  enlistment  record  of  the  accused,  and  it  was  noted  that  the  procedure 
followed  was  at  variance  with  that  laid  down  in  the  Forms  of  Procedure,  1910,  page 
32;  that  there  was  no  notation  on  the  record  of  proceedings  that  a  copy  of  such  docu- 
mentary evidence  was  appended  to  the  record,  nor  in  fact  was  a  copy  appended. 
(Forms  of  Procedure,  1910,  p.  32;  C.  M.  O.  36,  1914,  p.  7.)  C.  M.  O.  41,  1914,  4.  See 
also  EVIDENCE,  DOCUMENTARY,  19. 

24.  Same— Extracts  read  from  service  record  as  evidence  should  not  be  embodied  in  the 

record  of  proceedings.  A  certified  copy  should  be  appended.  G.  C.  M.  Rec.  29934; 
30041.  See  also  SERVICE  RECORDS,  23. 

25.  Witnesses — Service  record  of  a  witness,  improper  as  evidence  of  credibility.    C.  M.  O. 

47,  1910,  4-5. 

SESSIONS  OF  NAVAL  COURTS-MARTIAL.    See  COURT,  126,  127,  171-174. 

SET  OFF. 

1.  Discharge — Where  a  man  is  discharged  upon  expiration  of  enlistment  without  having 
been  fully  checked,  the  amount  of  a  summary  court-martial  sentence,  because  of 
sufficient  pay  not  having  accrued  to  satisfy  the  forfeiture,  the  amount  of  such  sentence 
which  remained  unchecked  at  date  of  discharge  can  not  be  set  off  against  pay  coming 
due  under  a  subsequent  enlistment.  His  discharge  from  the  previous  enlistment 
operated  as  a  remission  of  the  unexecuted  portion  of  the  forfeiture.  Comp.  Dec. 
Apr.  6,  1914,  158  S.  and  A.  Memo.  3035;  File  7657-241,  June  26,  1914. 

SETTING  ASIDE. 

1.  Accused— Requested  findings  and  sentence  be  set  aside  on  grounds  that  he  had  not 

received  a  public  trial.    C.  M.  O.  6, 1915,  6.    See  also  JUDGE  ADVOCATE,  105. 

2.  Deck  court.    See  DECK  COURTS,  58. 

3.  Findings  set  aside— No  arraignment  on  specification.    C.  M.  0. 17, 1915,  1-2. 

Findings  set  aside  in  a  fleet  case  by  the  Secretary  of  the  Navy,  as  specification  did 
not  support  the  charge.    C.  M.  O.  4, 1916.    See  also  FRAUD,  5 

4.  Findings  and  sentence — Of  a  general  court-martial  set  aside.    C.  M.  O.  14,  1914,  3. 

5.  Proceedings — Of  a  general  court-martial  set  aside  as  null  and  void.    C.  M.  0. 4. 1914, 11. 

See  also  C.  M.  O.  33,  1914,  5. 

6.  Proceedings,  findings,  and  sentence— Of  a  general  court-martial  set  aside  as  illegal. 

C.  M.  O.  4,  1916,  3. 

7.  Same— Of  a  general  court-martial  set  aside.    C.  M.  O.  78,  1905,  1. 


578  SETTING   ASIDE. 

8.  Proceedings,  findings,  and  sentence  once  set  aside  can  not  be  suspended  - 

The  Acting  Secretary  of  the  Navy  set  aside  the  proceedings,  findings,  and  sentence 
of  a  certain  general  court-martial  and  directed  the  discharge  of  the  accused  from  the 
naval  service  in  accordance  with  the  recommendation  of  a  board  of  medical  survey. 
Thereafter  the  Bureau  of  Navigation  recommended  that  action  on  the  proceedings, 
findings,  and  sentence  in  the  case  be  suspended.  Held,  that  "the  Secretary  of  the 
Navy  having  once  acted  upon  the  case  and  set  aside  the  proceedings,  findings,  and 
.sentence  of  the  court,  his  powers  in  the  premjses  were  thereby  exhausted  and  there 
is  now  no  authority  in  him  to  revoke  such,  action  and  hold  the  sentence  in  abeyance. 
(17  Op.  Atty.  Gen.  302.)"  File  26251-4424:7.  J.  A.  G. 

9.  Revocation— Of  action  of  setting  aside.    See  SETTING  ASIDE,  8. 

10.  Secretary  of  the  Navy— "The  Secretary  of  the  Navy  may  set  aside  the  proceedings, 

or  remit  or  mitigate,  in  whole  or  in  part,  the  sentence  imposed  by  any  naval  court- 
martial  convened  by  his  order  or  by  that  of  any  officer  of  the  Navy  or  Marine  Corps." 
(A.  G.  N.  33;  sec.  9,  act  Feb.  16, 1909;  35  Stat.,  621.) 

"The  department  reviews  the  record  of  all  naval  courts-martial,  with  a  view  to 
determining  whether  or  not  any  action  shall  be  taken  under  the  authority  of  the 
above-quoted  provision  "  of  law.  C.  M.  O.  26,  1912,  4.  See  also  SECRETARY  OF  THE 
NAVY,  27-30.  32-37,  64. 

11.  Sentence— Or  a  general  court-martial  set  aside.    C.  M.  O.  78, 1905, 1;  4. 1916.    See  also 

C.  M.  O.  33,  1905,  1. 

12.  Same-^-That  part  of  a  sentence  involving  confinement  set  aside,  as  sentence  did  not 

provide  for  forfeiture  of  pay.    C.  M.  O.  5,  1914,  3. 

13.  Same— Of  a  summary  court-martial  set  aside  as  illegal.    C.  M.  O.  22, 1915,  5-6.    Seeaho 

BKEAD  AND  WATER,  4. 

14.  Summary  court-martial — Proceedings  and  sentence  set  aside.    C.  M.  O.  5,  1914,  4; 

33, 1914,  6-8. 

15.  Same— Sentence  set  aside.    C.  M.  O.  5, 1916,  6. 

16.  Trial— The  trial,  conviction,  and  judgment  on  the  merits  in  the  case  was  set  aside  by 

the  department  and  the  penalty  remitted.  C.  M.  O.  9,  1893,  13.  See  also  C.  M.  O. 
18,  1897,  5. 

"  SHALL  AND  MAY."    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  77. 

SHERIFF. 

1.  Rewards  for  deserters.    See  REWARDS,  2. 

SHIPS.    See  VESSELS. 

SHIP'S  LOG  AS  EVIDENCE.    C.  M.  O.  15,  1910,  5. 

SHIP'S   STORE. 

1.  Comptroller  of  the  Treasury— Is  without  jurisdiction  to  render  a  decision  as  to  the 

legality  of  proposed  expenditures  from  profits  from  sales  by  ship's  stores  in  the  Navy 
in  view  of  the  provision  of  the  act  of  June  24, 1910  (36  Stat.,  619),  which  provides  that 
such  profits  should  be  accounted  for  to  the  Bureau  of  Supplies  and  Accounts.  File 
26254-1759:2.  See  also  Comp.  Dec.  Apr.  28,  1915. 

2.  Public  money — The  profits  from  sales  made  by  ship's  stores,  as  authorized  by  act  of 

June  24, 1910  (36  Stat.,  619),  are  not  public  money  within  the  meaning  of  R.  S.  3648. 
(Comp.  Dec.  Aug.  11, 1914;  File  26254-1571:2.)  Seealso  File  26254-1759,  Apr.  20, 1915. 

3.  Venereal  prophylactic— Sale  of  prohibited.    See  VENEREAL  PROPHYLACTIC. 

SHIP'S  TAILOR. 

1.  Deserted.    C.  M.  O.  6, 1915,  9.    Seealso  DESERTERS,  11. 

2.  General  court-martial— Tried  by.    C.  M.  O.  24,  1879. 

SHIPKEEPERS. 

1.  Naval  Militia.    See  NAVAL  MILITIA,  34,  39-41. 

SHIPPING  ARTICLES  AS  EVIDENCE.    C.  M.  O.  1,  1911,  5;  12,  1911,  3;  1,  1912,  5. 

SICK  LEAVE. 

1.  Promotion  while  on.    See  RETIREMENT  OF  OFFICERS,  33. 

SICK  LIST. 

1.  Drunkenness— While  on  sick  list.    See  DRUNKENNESS,  76,  84. 

2.  Promotion— Of  officer  while  on  sick  list.    See  RETIREMENT  OF  OFFICERS,  33. 


SMALLPOX.  579 

SICKNESS.   See  also  DISEASES. 

1.  Definition  of  "disease"  as  used  In  the  act  of  August  39,  1915  (39  Stat.  58O) 

The  term  "disease"  as  used  in  this  act  does  not  include  "injury."  (Compt.  Dec., 
Nov.  23,  1916).  File  7657-398:2. 

2.  Excuse — Sickness  has  never  been  regarded  as  an  excuse  for  abandoning  station  before 

being  regularly  relieved  because,  if  indisposed,  could  be  regularly  relieved.  C.  M.  O. 
25,  1910,  2. 

SIGNALS. 

1.  English  Morse  code — Adopted  for  visual  signaling  in  and  between  the  Army  and 

Navy.    G.  O.  345,  Apr.  3,  1886. 

2.  Typhoon  signals.    C.  M.  O.  7, 1915. 

SIGNAL,  BOOKS. 

1.  Battle  signal  books — Officers  tried  by  general  court-martial  for  loss  of.    See  BATTLE, 

1;  CONFIDENTIAL  PUBLICATIONS,  l,  3. 

2.  Regulations — Force  and  effect  as.    See  REGULATIONS,  NAVY,  14. 

SIGNALMEN. 

1.  Naval  Reserve  Corps.    See  NAVAL  RESERVE,  3. 

SIGNATURES. 

1.  Forging.    C.  M.  O.  26, 1915. 

2.  Members  of  courts-martial.    See  AUTHENTICATION  OF  SENTENCES;  MEMBERS  or 

COURTS-MARTIAL,  12,  24,  48. 

SILENCE  AS  EVIDENCE  OF  A  CONFESSION.    See  CONFESSIONS,  22. 
SILVER  SERVICE.    See  GIFTS  TO  GOVERNMENT,  5. 
SIMPLE  ACQUITTAL.    See  ACQUITTAL,  27. 
"  SINGLE  ACT  OF  HAZING."    See  HAZING. 

SINGLE  IRONS.    See  also  DOUBLE  IRONS;  IRONS. 

1.  Sentence — Among  other  things  the  court  included  in  its  sentence  the  use  of  single  irons. 

C.  M.  O.  233,  1902. 

2.  Same — That  part  of  the  sentence  which  provided  for  his  confinement  in  single  irons 

disapproved  as  being  unnecessary  and  unusual  for  so  long  a  period  as  six  months. 
C.  M.  O.  83,  1894,  2. 

SINGLE  WITNESS.    See  EVIDENCE,  114. 

SKYLARKING. 

1.  Death  of  enlisted  men.  See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED.  49,  71; 
MANSLAUGHTER,  13  (p.  351). 

SLANDE'R. 

1.  Malice— While  malice  is  an  essential  ingredient  of  libel  or  slander  or,  as  it  is  sometimes 

expressed,  is  the  gist  of  the  action  therefor,  yet  the  law  presumes  or  implies  malice 
from  the  publication  of  words  actionable  per  se,  whether  written  or  oral,  and  no  actual 
malice  is  essential  to  recovery.  (See  25  Cyc.  256, 371, 372.)  File  26251-12159,  Sec.  Navy, 
Dec.  9,  1916,  pp.  15-16. 

2.  Scandalous  conduct  tending  to  the  destruction  of  good  morals — Enlisted  men 

tried  by  general  court-martial  for  slander  under  charge  of.    C.  M.  O.  35,  1915,  4. 

SLEEPING  ON  WATCH. 

1.  Officer— Tried  by  general  court-martial.    C.  M.  0. 43,  1884;  34,  1912.    See  also  G.  C.  M. 

Rec.  6250;  8821;  13186. 

2.  Specific  in  tent—  Not  required.    See  INTENT,  2. 

SLEEPING  UPON  HIS  WATCH. 

1.  Officer— Charged  with.    C.  M.  O.  25,  1910. 

2.  Offlcers-of-the-deck— Found  guilty  of.    See  OFFICER-OF-THE-DECK,  12-14. 

SMALLPOX. 

1.  Medical  officer- Tried  by  general  court-martial  for  neglecting  his  duty  by  failing  to 
notify  his  commanding  officer  of  the  prevalence  of  an  epidemic  of  smallpox  in  a  city 
to  which  the  ship  was  destined  to  sail,  which  information  was  contained  hi  Public 
Health  Reports  officially  in  his  possession,  etc.  C.  M.  O.  35,  1914. 


580  SOLICITOR. 

SMOKER.    See  also  C.  M.  O.  8,  1909;  51,1910;  DRUNKENNESS,  41. 

1.  Clemency—  Officer  ordered  to  attend  a  "smoker."    See  CLEMENCY,  37. 

2.  Officers— Tried  by  general  court-martial  for  disobeying  an  order  to  attend  the  "United 

States  Atlantic  Fleet  smoker"  at  Hotel  Astor,  New  York  City.    C.  M.  O.  36,  1912. 

SMUGGLING. 

1.  "Attempting  to  smuggle  liquor" — Enlisted  men  charged  with.    C.  M.  O.  31,  1888. 

2.  Same — Enlisted  man  charged  with,  under  "Conduct  to  the  prejudice  of  good  order  and 

discipline."    C.  M.  O.42, 1915,  2. 

3.  "Smuggling  liquor  and  drunkenness"— Enlisted  man  tried  by  general  court- 

martial.    C.  M.  O.  85, 1889. 

SODOMY. 

1.  Accomplices.    See  AIDING  AND  ABETTING,  7;  SODOMY,  6. 

2.  Aiding  and  abetting.    See  AIDING  AND  ABETTING,  7. 

3.  Assault  with  intent  to  commit  sodomy.    O.  C.  M.  Rec.  30935. 

4.  Charges  investigated  by  department — For  cases  where  an  accused  charged  sodomy 

as  the  cause  of  his  trouble  for  which  on  trial,  and  such  charges  investigated  by  the 

department.    G.  C.  M.  Rec.  23015;  23595;  23845. 
,r>.  Common  law.    See  SODOMY,  15. 
0.  Confessions— For  cases  where  confessions  of  accomplice  were  admitted  to  prove  the 

charge.    See  CONFESSIONS,  7,  23. 

7.  Corpus  delicti.    See  CORPUS  DELICTI,  4. 

8.  Department's  purpose  to  severely  punish  offenders — It  Is  the  department's 

purposes  that  nothing  be  left  undone  to  bring  to  justice  persons  in  the  Navy  who  are 
guilty  of  sodomy;  and  when  such  offenders  are  convicted  by  court-martial  it  is  the 
intention  that  they  shall  be  rigorously  dealt  with,  to  the  end  that  the  naval  service 
may  not  be  demoralized  as  must  surely  follow  lenient  treatment  of  such  cases.  File 
26251-0020:11,  Sec.  Navy,  July  7,  1913. 

9.  Drunkenness— For  cases  disapproved  account  drunkenness.    G.  C.  M.  Rec.  21287. 

10.  "Frame-up"— As  a  defense.    File  26251-10490. 

11.  Lectures— Recommended,  "That  the  commandants  and  commanding  officers  of  the 

naval  training  stations  be  instructed  to  cause  lectures  or  talks  to  be  given  to  appren- 
tices under  training,  setting  forth  the  nature  of  such  offenses,  [sodomy,  sexual  per- 
version, etc.]  the  liability  of  all  parties  concerned,  and  the  fact  that  the  department 
insists  upon  severe  punishment  oeing  meted  out  in  such  cases."  File  26251-1 1479a, 
J.  A.  G.,  Feb.  18,  1916. 

12.  Miscellaneous  remarks— For  cases  having  miscellaneous  remarks.    See  G.  C.  M. 

Rec.  23527;  23095;  23694;  23693. 

13.  Prior  acts— Evidence  of  prior  acts  of  familiarity  or  prior  offenses  of  the  same  character 

are  admissible.    File  26251-6020:11,  Sec.  Navy,  July  7,  1913. 

14.  Proof  of.    See  File  26504-136;  10374-02,  J.  A.  G.,  Dec.  6,  1902;  21  J.  A.  G.  479-481; 

G.  C.  M.  Rec.  10486;  Rinnan  v.  State,  86  Neb.  234;  125  N.  W.  594;  Ann.  Cas.  335. 

15.  Punishment  by  statute  and  common  law— Sodomy  was  punishable  at  common 

law  by  death,  sometimes  by  btorniug  and  sometimes  by  burying  alive.  Punishment 
is,  however,  almost  universally  regulated  by  statute  in  the  several  states,  which  very 
generally  impose  long  terms  in  state  prisons,  in  some  instances  for  life.  (36  Cyc.  506.) 
File  26251-6020:11,  July  7,  1913. 

Hi.  Scandalous  conduct  tending  to  the  destruction  of  good  morals— Where  the 
evidence  is  not  sufficient  to  establish  the  crime  of  sodomy  the  court  should  find  the 
accused  "guilty  in  a  lesser  degree  than  charged,  guilty  of  scandalous  conduct  tending 
to  the  destruction  of  good  morals,"  where  such  finding  is  warranted  by  the  facts 
adduced.  See  File  2650 1-136.  See  also  File  231-03:  22  J.  A.  G.  161,  holding  that  it 
is  competent  for  the  court  to  find  the  accused  guilty  of  the  included  offense  of  at- 
tempting to  commit  the  crime  charged  should  the  evidence  not  be  sufficient  to 
sustain  a  finding  of  guilty  of  the  charge. 

17.  Statute — No  statute  applicable  to  Navy  defining  "sodomy."    G.  C.  M.  Rec.  10486. 

SOLICITOR. 

1.  Attorney  General — Requests  for  opinion  of.    See  ATTORNEY  GENERAL,  1C,  17. 

2.  Combining— Offices  of  the  Judge  Advocate  General  and  Solicitor.    Sfe  JUDGE  AD- 

VOCATE GENERAL,  38. 

3.  Counsel— Solicitor  in  the  office  of  the  Judge  Advocate  General  was  assigned  as  associate 

and  assistant  to  a  judge  advocate.    See  COUNSEL,  49. 

4.  Duties.    See  File  26827-3:21. 


SOLICITOR.  581 

5.  History — Solicitor's  office.    See  JUDGE  ADVOCATE  GENERAL,  18. 

6.  Investigation— Authorized  to  administer  oaths.    See  OATHS,  41. 

7.  Statutes  not  relating  to  personnel— Interpretation  of.    See  JUDGE  ADVOCATE 

GENERAL,  20. 

8.  Supreme  Court — The  solicitor  in  the  office  of  the  Judge  Advocate  General  has  repre- 

sented the  United  States  in  the  Supreme  Court.    U.  S.  v.  Smith,  197  V.  S.  386;  File 
469, 1904.    See  also  COUNSEL,  49,  52. 

"SOLICITOR  AND  NAVAL  JUDGE  ADVOCATE  GENERAL."    See  JUDGE  ADVO- 
CATE GENERAL,  18. 

SOLICITOR,  NAVAL.    See  JUDGE  ADVOCATE  GENERAL,  18. 

SOLITARY  CONFINEMENT. 

1.  Bread  and  water — If  sentence  involves  bread  and  water,  solitary  confinement  must  be 

included.    See  BREAD  AND  WATER,  4;  CONFINEMENT,  11. 

2.  Definition.   See  CONFINEMENT,  12. 

3.  Certificate  ot  medical  officer.    See  CONFINEMENT,  5. 

',.  Sentence — Inasmuch  as  a  month  may  contain  more  than  thirty  days,  a  sentence  of 
"solitary  confinement  in  double  irons  on  bread  and  water  for  one  month,"  etc.,  does 
not  conform  to  article  30,  paragraph  4,  Articles  for  the  Government  of  the  Navy, 
which  authorizes  summary  courts-martial  to  impose  a  sentence  of  solitary  confinement 
not  exceeding  thirty  days,  and  records  containing  a  sentence  of  one  month  are  there- 
fore returned  for  revision.  S.  C.  M.  Rec.  No.  43097,  Sept.  15,  1904. 

SPANISH  WAR.    See  WAR  WITH  SPAIN. 

SPECIAL  DISBURSING  OFFICERS.    See  also  DISBURSING  OFFICERS;  PAY  OFFICERS. 
1.  Hospital  ship.    See  File  7039-279,  J.  A.  G.,  Jan.  18,  1913. 

SPECIAL  ORDERS. 

1.  Judicial  notice.    See  STATUTES,  10. 

SPECIALISTS. 

1.  Prisoners — Examination  by.    See  PRISONERS,  32. 

SPECDTIC  INTENT.    See  also  INTENT. 

1.  Absence,  unauthorized.    See  ABSENCE  FROM  STATION  AND  DUTY  AFTER  LEAVE 

HAD  EXPIRED,  13;  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  20. 

2.  Assault.    See  ASSAULT,  23,  24. 

3.  Assault  and  battery.    See  ASSAULT,  23. 

4.  Assaulting  with  a  deadly  weapon  and  wounding  another  person  in  the  serv- 

ice.   See  ASSAULT,  24;  ASSAULTING  WITH  A  DEADLY  WEAPON  AND  WOUNDING 
ANOTHER  PERSON  IN  THE  UNITED  STATES  NAVAL  SERVICE,  3. 

5.  Burglary.    See  BURGLARY,  6. 

6.  Definition.    See  INTENT,  49. 

7.  Desertion.    See  DESERTION. 

8.  Drunkenness — Effect  of  drunkenness  on  specific  intent.    See  DRUNKENNESS,  49-52. 

9.  Duelling.    See  DUELS,  2. 

10.  Embezzlement.   See  EMBEZZLEMENT,  15,  1C. 

11.  Forgery.    See  FORGERY,  1. 

12.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  23,  27. 

13.  Larceny.    See  THEFT,  21. 

14.  Murder.    See  MURDER,  6,  13. 

15.  Perjury.   See  PERJURY,  15. 

16.  Robbery.    See  INTENT,  2;  ROBBERY,  7,  8. 

17.  Statute  or  common  law — Where  by  statute  or  common  law  a  specific  intent  is  essen- 

tial  to  a  crime,  it  must  be  proved.    See  COMMON  LAW,  11;  DESERTION,  77. 

18.  Stealing.    See  THEFT,  7,  21. 

19.  Theft.    See  THEFT,  21. 

SPECIFICATIONS.    See  CHARGES  AND  SPECIFICATIONS. 

SPECTATORS. 

1    Presence — During  trial  by  general  court-martial.    See  COURT,  126. 

2.  Warned— By  court  not  to  talk  of  trial.    G.  C.  M.  Rec.  30485,  p.  304. 


582  STAFF   OFFICERS. 

SPEEDY  TRIALS. 

1.  Deck  courts— Whenever  practicable,  the  trial  shall  take  place  within  48  hours  after 

the  offense  is  committed.  Delay  in  the  trial  of  the  accused,  may  be  considered  in 
adjudging  sentence.  (R-507.) 

2.  General  courts-martial— The  department  is  desirous  of  reducing  by  every  practicable 

means  the  period  of  time  between  the  arrest  of  an  accused  person  for  trial  and  the  pro- 
mulgation of  his  sentence.  To  this  end,  steps  have  been  taken  to  reduce  to  a  min- 
imum delay  in  the  various  operations  required  in  the  department  in  such  cases;  and 
each  successive  step  in  handling  cases  before  they  arrive  at  the  department  should 
similarly  be  expedited. 

If  it  is  decided  by  the  competent  officer  that  the  accused  shall  be  brought  to  trial 
before  a  general  court-martial,  "the  court  shall  be  assembled  for  that  purpose  as 
soon  as  the  nature  of  the  case  and  the  interests  of  the  public  service  will  allow." 
(Navy  Regulations,  1913,  R-14Q8  (1).)  General  courts-martial  should  "meet  as  soon 
as  practicable  after  each  case  is  received  and  not  delay  the  trial  of  any  one  person 
until  a  number  of  cases  have  accumulated."  (File  26504-111.)  Judge  advocates 
should  not  construe  the  order  of  the  Secretary  of  the  Navy,  dated  May  4,  1911.  re- 
quiring that  "reports,  with  the  reasons  for  delay  of  trial,  be  made  in  each  case  whera 
the  accused  is  not  brought  to  trial  within  10  days  after  the  charges  and  specifications 
are  received  by  the  judge  advocate"  (File  2G504-111),  as  authority  to  unnecessarily 
delay  trials.  (See  C.  M.  O.  10,  1915,  p.  6,  with  reference  to  "Speedy  trials.")  File 
26504-111:329,  Sec.  Navy,  May  4, 1915;  C.  M.  O.  20,  1915,e7-8. 

3.  Summary  courts-martial— In  reviewing  a  summary  court-martial  record  the  senior 

officer  present  in  his  remarks,  dated  February  4, 1915,  stated  in  part:  "  It  is  noted  that 
the  offense  was  committed  on  January  5, 1915,  that  the  specifications  were  approved  on 
January  12,  1915,  the  trial  occurred  on  January  18,  1915,  and  the  proceedings  were 
approved  by  the  convening  authority  on  January  31,  1915.  Too  much  time  has 
been  consumed  in  this  case."  The  record,  which  was  received  at  the  department  on 
February  25, 1915,  disclosed  the  facts  to  be  as  above  stated. 

The  Navy  Regulations  provide  that  when  an  officer  empowered  to  convene  sum- 
mary courts^martial  decides  after  investigating  an  accusation  against  a  petty  ollic^r 
or  person  of  inferior  rating  that  the  accused  should  be  tried  by  a  summary  court-mar- 
tial, he  shall  refer  the  case  to  such  court-martial,  with  the  least  possible  delay.  (Navy 
Regulations,  1913,  R-602  (1).)  Also,  the  accused  shall,  as  soon  as  practicable  after  it 
has  been  decided  to  bring  him  to  trial,  be  furnished  with  a  copy  of  the  specifications 
preferred  against  him.  (Navy  Regulations,  1913,  R-607  (1).) 

From  the  above  it  will  be  seen  that  an  accused  should  always  receive  a  speedy  trial 
and  the  record  forwarded  without  undue  delay.  "The  certainty  of  prompt  punish- 
ment is  more  conducive  to  discipline  than  punishment  deferred  long  after  the  ou'ense ." 
(Navy  Regulations,  1913,  R-1404  (3).)  These  regulations  thus  conform  to  the  spirit 
of  the  constitutional  provision  for  speedy  trials.  (Constitution,  Art.  VI  of  Amend- 
ments.) C.  M.  0. 10, 1915,  6. 

SPIRITUOUS  LIQUORS  ON  BOARD  SHIP. 

1.  Acting  third  assistant  engineer— Was  found  guilty  of  "Violation  of  the  act  of  Con- 
gress prohibiting  the  introduction  of  spirituous  liquors  on  board  vessels  of  the  United 
States  Navy"  by  a  general  court-martial.  G.  O.  44,  Dec.  7,  ISfii. 

SQUADRON  COMMANDERS. 

1.  Convening  authority — Of  a  general  court-martial.  See  CONVENING  AUTHORITY, 
28,  30. 

"SQUEEZE." 

1.  Defense— "Squeeze"  as  a  defense.    C.  M.  O.  69, 1903,  2-3.    Seealso  G.  C.  M.  Rec.  27900. 

ST.  ELIZABETH.    See  GOVERNMENT  HOSPITAL  FOR  THE  INSANE. 

STABBING. 

1.  Assault  and  battery.    See  ASSAULT,  25. 

STAFF  OFFICERS. 

1.  Command— In  other  corps.    See  HOSPITAL  SHIPS,  1. 

2.  Same — The  staff  is  subordinate  to  the  line  in  matters  of  command.    See  COMMAND,  18. 

3.  Controversy — Between  line  and  staff.    See  COMMAND,  19. 

4.  General  court-martial— Trial  of  stuff  officers.    See  COURT,  34. 

5.  Marine  officers — Precedence  of.    See  PRECEDENCE,  14-18. 


STAFF  OFFICERS.  583 

6.  Same— Promotion  of.    See  PROMOTION.  180, 181. 

7.  Naval  officers.    See  PROMOTION,  182-184. 

8.  Professor  of  mathematics — Rank  of.    See  PROFESSORS  OF  MATHEMATICS. 

9.  Promotion— Advanced  in  rank  but  not  in  grade.    See  COMMISSIONS,  9. 

10.  Same— Promotion  by  selection.    See  PROMOTION,  172,  182,  183,  184;  PROMOTION  BY 

SELECTION,  10. 

11.  Trial  of— By  general  courts-martial.    See  COURT,  34. 

12.  Warrant  officers— Carpenters  and  chief  carpenters,  sailmakers  and  chief  sailmakers, 

pharmacists  and  chief  pharmacists,  are  classed  as  stafl  officers.    See  COMMAND,  11,  21. 

STARE  DECISIS. 

1.  Definition— Store  decisis  ct  non  quicta  movcrc — To  adhere  to  decided  cases  and  not  dis- 

turb matters  established.    File  26260-1392,  pp.  2-3.    See  also  WORDS  AND  PHRASES. 

2.  Law  should  be  settled  permanently— It  is  almost  as  important  that  the  law  should 

be  settled  permanently  as  that  it  should  be  settled  correctly.  Its  rules  should  be 
fixed  deliberately  and  adhered  to  firmly,  unless  clearly  erroneous.  Vacillation  is  a 
serious  evil.  File  5252-68.  J.  A.  G..  May  15.  1915,  quoting  Oilman  v.  Philadelphia 
(3  Wall.,  724). 

3.  Statutory  construction — According  to  the  doctrine  of  store  decisis,  where  a  statute 

has  been  construed  by  the  Navy  Department  in  a  previous  administration  and  such 
construction  is  not  clearly  erroneous,  the  matter  should  be  regarded  as  settled  so  far 
as  the  law  is  concerned,  and  the  previous  construction  should  not  be  disturbed.  File 
5252-68,  May  15,  1915. 

STATE. 

1.  Civil  authorities.    See  CIVIL  AUTHORITIES;  GENERAL  ORDER  No.  121,  Sept.  17,  1914; 

JURISDICTION,  118. 

2.  Decisions.    See  SECRETARY  OF  THE  NAVY,  39. 

3.  Embezzlement — State  laws  not  applicable.    See  EMBEZZLEMENT,  28. 

4.  General  courts-martial  of  States— Officers  and  enlisted  men  of  naval  service  appear- 

ing before,  as  witnesses.    See  GENERAL  ORDER  No.  121,  Sept.  17,  1914,  23. 

5.  Same— On  board  vessels  of  the  Regular  Navy.    See  NAVAL  MILITIA,  38;  JURISDICTION,  39. 

6.  Interference— With  Federal  instrumentalities.    See  CONSTITUTIONAL  LAW,  5-S;  JURIS- 

DICTION, 118. 

7.  Statute — Violation  of  by  a  Naval  officer — "This  accused,  upon  his  own  admission  and 

the  undisputed  evidence,  has  been  guilty  of  a  serious  offense,  criminal  libel,  for  which 
he  may  be  tried  in  the  civil  courts  [of  the  Statej  in  addition  to  his  offense  against 
discipline,  for  which  he  has  been  brought  to  trial  by  court-martial.  The  jurisdiction 
of  the  State  and  Naval  authorities  over  his  offense  is  concurrent,  and  conviction  by 
the  one  could  not  oust  jurisdiction  of  the  other."  File  26251-12159,  Sec.  Navy,  Dec.  9, 
1916,  p.  22.  See  aho  JEOPARDY,  FORMER,  11,  24,  45,  46. 

8.  Vote — Jurisdiction  over  right  to  vote,  etc.    See  VOTING. 

STATE  SECRETS. 

1.  Privilege — Privilege  of  refusing  to  divulge  State  secrets  when  testifying.    See  EVI- 
DENCE, 82  (p.  223.) 

STATEMENTS  MADE  IN  PRESENCE  OF  ACCUSED. 

1.  Evidence — One  of  the  witnesses  for  the  prosecution,  a  chief  master-at-arms,  testified  as 
to  the  unauthorized  absence  of  the  accused  from  said  ship  and  his  delivery  on  board 
by  a  police  officer.  He  added  "the  police  officer  stated  that  the  accused  gave  himself 
up."  The  record  proceeds  as  follows: 

"  The  court  here  objected  to  the  admission  of  the  last  sentence,  referring  to  the  state- 
ment of  the  police  officer,  as  hearsay  evidence,  and  it  was  not  allowed  as  part  of  the 
evidence." 

In  answer  to  a  further  question  the  above-named  witness,  who  had  testified  that 
he  "did  not  find  any  effects  belonging  to  the  accused, "  stated  that  such  fact  did  not 
indicate  to  his  mind  that  the  accused  had  disposed  of  them  before  he  left  the  ship, 
as  on  account  of  the  large  number  of  men  on  board,  and  the  inadequate  facilities  for 
stowing  bags, "  It  was  very  difficult  to  find  any  particular  bag  belonging  to  absentees." 

While  it  does  not  certainly  appear  from  the  above-quoted  evidence  that  the  state- 
ment of  the  policeman  in  question  was  made  in  the  presence  of  the  accused,  it  would 
seem  to  be  a  reasonable  inference  therefrom  that  such  was  the  case,  and  if  so,  said 
statement  was  clearly  admissible  and  should  not  have  been  ruled  out.  C.  M.  O. 
214,  1902. 


584  STATEMENT   OF    ACCUSED. 

STATEMENT  OF  ACCUSED. 

1.  Accused  as  witness— The  accused,  after  pleading  guilty  to  "Desertion,"  took  the  stand 

and  stated  that  at  the  time  he  left  the  ship  he  was  mentally  unbalanced.  This  state- 
ment is  obviously  Inconsistent  with  his  plea  of  guilty.  C.  M.  O.  49,  1910,  11.  See 
also  C.  M.  O.  2,  1905;  DESERTION,  75. 

The  accused,  after  pleading  guilty  to  "Desertion,"  took  the  stand  and  stated  that 
"the  reason  why  I  pleaded  guilty  [to  "  Desertion"]  was  because  I  have  always  known 
about  after  10  days  being  desertion;  solpleaded  to 'Desertion 'that  way."  C.M.O. 
10,  1912,  4. 

The  accused  after  pleading  guilty  of  being  drunk  on  post  after  having  been  regularly 
posted  thereon,  took  the  stand  and  stated  that  he  did  not  remember  relieving  the 
sentry,  and  that  he  did  not  remember  being  drunk  on  post.  C.  M.  O.  5.  1911,  4. 

Where  accused  pleads  "guilty"  and  then  goes  on  the  witness  stand  and  gives 
testimony  which  is  inconsistent  with  such  plea  of  "guilty,"  the  court  should  advise 
him  to  withdraw  his  plea  of  "guilty"  and  enter  one  of  "not  guilty."  C.  M.  O.  6, 
1908, 5. 

2.  Accused  should  be  informed — That  his  statement  is  not  evidence.    See  STATEMENT 

OF  ACCUSED,  J7. 

3.  Affidavits— Should  not  be  included  as  part  of  the  statement  of  the  accused.    See 

AFFIDAVITS,  7. 

4.  Clemency— If  the  court  places  credence  in  the  statement  of  the  accused  (after  he  has 

pleaded  guilty),  as  appears  to  be  the  case  from  the  wording  of  a  unanimous  recom- 
mendation to  clemency,  then  before  arriving  at  a  finding  the  defense  should  have  boon 
opened  up  and  the  accused  called  upon  to  produce  witnesses  to  that  effect  or  informed 
of  his  privilege  of  taking  the  stand  and  so  testifying  under  oath,  subject  to  a  rigid 
cross-examination.  C.  M.  O.  21,  1913,  5. 

The  recommendation  to  clemency  should  not  be  inconsistent  with  the  accused's 
plea  of  "guilty."  C.  M.  O.  30,  1910,  5. 

5.  Clerk  or  stenographer  available — When  a  clerk  or  stenographer  is  available  the 

statement  of  the  accused,  undergoing  trial  by  general  court-martial,  should  be  set 
forth  in  therecord  of  proceedings  verbatim  and  not  recorded  "in  substance."    C.  M.  O. 
16,  1912,  3. 
0.  Contents  of  written  statement.    See  STATEMENT  OF  ACCUSED,  35. 

7.  Court— Procedure  of  court  when  statement  of  accused  is  deemed  inconsistent  with 

his  plea  of  "guilty."    See  STATEMENT  OF  ACCUSED,  25. 

8.  Court  should  close  to  examine— The  court  should  close  for  the  examination  of  tho 

written  statement  of  the  accused,  and  the  record  should  show  that  the  court  was 
closed  therefor.  C.  M.  O.  28,  1910,  6;  31,  1910,  3. 

9.  Disapproval— Of  summary  court-martial  case  because  statement  of  accused  was  incon- 

sistent with  his  plea  of  "guilty."    See  STATEMENT  OF  ACCUSED,  20. 

10.  Same — Of  general  court-martial  case  for  same  reason.    See  STATEMENT  OF  ACCUSED, 

16. 

11.  Same.    See  C.  M.  0. 12, 1897;  46, 1900;  63. 1901;  167, 1901;  182, 1901;  185, 1901;  23, 1904, 1 ; 

2,  1905,  3;  22,  1905,  1;  23,  1905,  4. 

12.  Disapproval  though  not  Inconsistent — A  statement  submitted  by  accused  who 

has  pleaded  "guilty"  of  desertion  although  not  inconsistent  with  his  plea  may  be 
of  such  a  nature  as  to  justify  the  rejection  of  the  plea  and  a  trial  of  the  case  on  its  merits. 
In  this  case  the  accused  stated  that  he  was  suffering  from  a  disease,  and  his  father 
being  a  physician,  he  went  home  for  treatment  and  surrendered  in  order  that  he  might 
finish  hisenlistment  and  go  home  with  a  clean  name.  C.  M.  O.  54, 1905. 

13.  Disrespectful— The  accused  "presented  to  the  court  a  written  defense  so  disrespectful 

that  the  court  could  not  receive  it."    Accused  was  censured.    G.  0. 157,  May  24, 1870. 

14.  Evidence — Statement  of  accused  is  not  evidence.    Any  averments  or  facts  embraced  in 

the  statement  may,  of  course,  be  proved  by  testimony;  but  unless  so  proved  it  is  not 
within  the  province  of  the  court  to  take  judicial  cognizance  of  them  in  determining 
the  culpability  or  innocence  of  the  accused.  (R-792  (4)).  C.  M.  O.  42, 1909, 9;  41, 1914. 
lu.  Evidence  In  extenuation— Inconsistent  with  accused's  plea  of  "Guilty" — The  ac- 
cused pleaded  "guilty"  to  "  Desertion."  The  testimony  of  a  witness  in  extenuation 
was  inconsistent  with  the  accused's  plea  as  was  the  statement  of  the  accused  and  the 
recommendation  of  the  members  to  the  clemency  of  the  revising  power.  The  depart- 
ment accordingly  disapproved  the  proceedings,  findings,  and  sentence.  C.  M.  O. 
30, 1910,  4-5.  See  also  CLEMENCY,  20. 


STATEMENT   OF   ACCUSED.  585 


the  accused  was  up  before  you  on  the  night  in  question,  was  he 'drunk,  disorderly, 
or  creating  a  disturbance, "  to  which  the  witness  answered  "  No."  The  judgead  vocate 
did  not  cross-examine  this  witness,  and  the  record  shows  that  the  court  did  not  desire 
to  question  him.  The  witness  for  the  defense  did  not  state  at  what  hour  the  accused 
was  brought  before  him,  and  his  testimony  was,  therefore,  not  necessarily  contra- 
dictory of  the  plea  of  the  accused  that  he  was  guilty  of  "drunkenness"  at  the  time 
specified.  Nevertheless,  this  testimony,  received  without  any  attempt  being  made 
to  reconcile  it  with  the  plea  of  the  accused,  was  on  its  face  sufficiently  inconsistent 
with  that  plea  to  make  it  the  duty  of  Jhe  court  immediately  to  instruct  the  accused 
that  he  might  withdraw  his  plea  of  "  guilty  "  and  substitute  therefor  the  plea  of  "not 
guilty,"  and  if  he  persisted  in  his  plea  of  "guilty"  to  direct  the  entering  of  a  plea  of 
"not  guilty"  to  the  charge  of  "Drunkenness,"  and  the  proceeding  with  the  trial  by 
the  introduction  of  evidence,  which  the  judge  advocate  was  informed  existed,  to  prove 
the  allegations  set  forth  in  the  specification  under  that  charge.  (C.  M.  O.  30, 1910, 
p.  4;  see  also  Index-Digest,  1914.  p.  40.) 

Inasmuch  as  the  finding  of  "Guilty"  on  the  charge  of  "Drunkenness"  was  dis- 
approved by  the  convening  authority  because  of  the  above  irregularity  and  the  ends 
of  justice  were  thereby  defeated  through  the  failure  of  the  court  and  judge  advocate 
to  properly  conduct  the  trial,  and  without  reference  to  the  question  of  whether  or 
not  the  above  irregularity  was  properly  regarded  as  a  fatal  defect,  attention  is  d  irected 
in  this  connection  to  the  special  care  which  the  members  and  judge  advocate  of  a 
court  should  give  to  matters  in  which  either  the  testimony  or  the  statement  of  an 
accused  may  appear  at  variance  with  his  plea.  G.  C.  M.  Eec.  No.  31776;  C.  M.  O. 
9.  1916,  7-8. 

17.  Ex  parte— The  accused  should  be  informed  that  the  court  can  not  attach  evidentiary 

weight  to  the  accused's  ex  parte  statement;  that  he  has  the  right  to  take  the  stand 
and  testify  under  oath  and  also  to  produce  witnesses  in  his  behalf  to  testify  as  to  the 
existence  of  the  deplorable  conditions  alleged  (destitution  of  family,  desire  to  remain 
in  service  etc.),  and  that  he  should  call  such  witnesses  whenever  practicable.  C. 
M.  O.  10,  1913,  7. 

18.  Inconsistent  with  accused's  plea  of  guilty— If  the  accused  pleads  guilty  and  then 

makes  a  statement  inconsistent  with  nis  plea  it  becomes  the  duty  of  the  court  to 
instruct  the  accused  in  the  premises  that  he  might  withdraw  his  plea  of  "Guilty" 
and  substitute  therefore  the  plea  of  "Not  guilty,"  and  if  he  persisted  in  his  plea  of 
"Guilty"  to  direct  that  the  plea  of  "Not  guilty"  be  entered  and  then  proceed  with 
the  trial  as  if  the  plea  had  originally  been  "not  guilty."  C.  M.  0. 42, 1909,  8;  47, 1910, 8; 
49,  1910,  7,  11;  14,  1910, 10-11;  23,  1910,  5;  30, 1910,  4;  5,  1911,  4-6;  10,  1912,  4;  1, 1914,  4-5; 
5,  1914,  6;  9,  1914,  3;  25,  1914,  3-4;  File  26287-2821,  Sec.  Navy,  March  3,  1915. 

19.  Same— Where  the  accused  pleads  guilty  and  then  makes  a  statement  to  the  court 

setting  forth  facts  incongruous  with  his  plea  (as  in  desertion,  disclaiming  the  intent 
to  abandon  the  service),  the  statement,  rather  than  the  plea,  should  be  considered 
as  the  intelligent  act  of  the  accused,  and  in  such  a  case  the  court  will  properly  counsel 
the  accused  to  plead  not  guilty  or  direct  such  plea  to  be  entered,  and  proceed  to  a  trial, 
the  judge  advocate  introducing  his  proof  precisely  as  under  an  ordinary  plea  of  guilty. 
C.  M.  O.  42,  1909,  8.  See  also  C.  M.  O.  158, 1897;  54, 1905,  2. 

20.  Same— The  department  disapproved  the  summary  court-martial  proceedings  and 

sentence  because  the  statement  of  the  accused  was  inconsistent  with  his  plea  of  guilty. 

The  accused  pleaded  guilty  to  having  unlawfully  in  his  possession  one  pair  of 
trousers  and  later  made  the  following  statement:  "*  *  *  brought  the  pair  of  pants 
in  the  bungalow  and  gave  them  to  me;  they  were  too  small  for  him.  The  pants  were 
all  dirty  and  I  thought  they  were  cast  off,  as  *  *  *  said  that  he  found  them  on 
the  dump." 

Upon  the  submission  of  this  statement,  it  became  the  duty  of  the  court  to  instruct 
the  accused  in  the  premises  that  he  might  withdraw  his  plea  of  "guilty,"  and  sub- 
stitute therefor  the  plea  of  "not  guilty, "  and  if  he  persisted  in  his  plea  of  "guilty" 
to  direct  that  the  plea  of  "not  guilty"  be  entered  and  then  proceed  with  the  trial  as 
if  the  plea  had  originally  been  "not  guilty. "  C.  M.  O.  1, 1914.  4. 

21.  Same— The  accused  was  charged  with  "Assaulting  and  striking  his  superior  officer 

while  in  the  execution  of  the  duties  of  his  office,"  the  spefifiratipnsallegin£raw'f7//wZ 
and  malicious  assault.  The  accused  pleaded  "guilty"  out  in  his  statement  alleged 


586  STATEMENT   OF  ACCUSED. 

in  substance,  that  he  was  so  drunk  that  he  did  not  know  what  he  was  doing  when  he 
made  the  assault  charged  against  him.  The  department  held  that  this  statement 
was  "apparently  inconsistent  with  the  plea  of  the  accused."  C.  M.  O.  47,  1910;  8. 

22.  Same — The  accused  pleaded  guilty  to  the  charge  of  "  Theft . "    The  specification  alleged 

that  he  did  feloniously  take,  steal,  and  carry  away  two  rifles,  and  did  then  and  there 
appropriate  thorn  to  his  own  use.  Later  on  in  the  proceedings  he  makes  a  statement, 
which  was  unobjected  to  and  received  by  the  court,  to  the  effect  that  he  was  so  much 
under  the  influence  of  intoxicating  liquor  that  he  had  no  control  over  his  actions,  and 
that  he  had  not  the  slightest  intention  of  taking  the  rifles  in  question. 

While  the  statement  of  the  accused  is  not  evidence,  nor  should  it  be  considered 
as  such,  yet  when  contrary  to  his  plea  it  devolves  upon  the  court  to  instruct  the  ac- 
cused in  the  premises  that  his  plea  be  changed  to  conform  to  his  statement. 

The  statement  made  by  the  accused  in  this  case  conflicted  with  his  plea,  he  having 
pleaded  guilty  to  having  feloniously  taken,  stolen,  and  carried  away  two  rifles  and 
appropriated  the  same  to  his  own  use. 

It  thus  became  the  duty  of  the  court,  when  the  accused  in  this  case,  after  having 
pleaded  guilty  to  "Theft,"  submitted  a  statement  contradictory  to  this  plea— at 
least  contradictory  to  that  portion  embracing  the  gist  of  the  offense,  to  have  Drought 
these  conflicting  elements  to  the  attention  of  the  accused,  and  then,  if  he  held  to  the 
facts  set  forth  in  his  statement,  to  have  directed  the  judge  advocate  to  substitute  the 
plea  of  "not  guilty"  to  the  particular  charge,  and  to  have  proceeded  with  the  case  by 
the  introduction  of  evidence,  if  such  existed,  to  prove  the  specification.  C.  M.  O. 
42, 1909,  9. 

23.  Same — The  accused  after  pleading  "guilty  "to  "Desertion,  "submitted  a  written  state- 

ment the  tenor  of  which  was  plainly  inconsistent  with  his  pleaof  "guilty,  "inasmuch 
as  he  expressly  denied  having  intended  permanently  to  remain  away  at  the  time  he 
absented  himself.  The  court  accepted  both  the  plea  and  the  statement  and  found 
the  accused  guilty.  Incasesas  this,  thecourt,  if  it  lias  reason  to  believe  that  the  state- 
ment is  made  in  good  faith,  should  follow  the  procedure  outlined  in  STATEMENT  OF 
ACCUSED,  25.  C.  M.  0. 107,  1899,  1. 

24.  Same— The  accused  having  pleaded  guilty  to  "  Desertion  "  offered  the  following  written 

statement  which  was  read  for  him  by  the  judge  advocate: 

"While  admitting  the  offense  of  deserting,  I  do  so  only  because  I  can  find  no  evi- 
dence to  bring  before  the  court  except  my  own  statement  to  disprove  the  charge. 
I  never  had  any  intention  of  deserting  the  service  permanently  and  absented  myself 
as  charged  only  because  I  wanted  to  get  off  the  ship  I  was  on,  as  I  felt  and  knew  that 
I  would  be  in  trouble  continually  by  remaining  on  board  the  Columbia." 

This  statement  was  manifestly  inconsistent  with  the  plea  of  guilty  made  by  the 
accused  to  the  third  charge,  namely  desertion,  yet  both  were  admitted  by  the  court. 
No  evidence  was  adduced  before  the  court  and  the  finding  on  each  of  the  specifications 
in  this  case  was  "proved  by  plea,"  and  on  each  of  the  charges  was  "guilty." 

The  finding  on  the  charge  of  "Desertion"  and  specification  thereunder  was  dis- 
approved. C.  M.  O.  84,  1904,  3. 

25.  Same— Upon  the  submission  of  a  statement  which  is  deemed  inconsistent  with  the 

accused's  plea  of  "guilty,"  it  becomes  the  duty  of  the  court  to  instruct  the  accused 
that  he  might  withdraw  his  plea  of  "guilty,"  and  substitute  therefor  the  plea  of  "not 
guilty,"  and  if  he  persists  in  his  plea  of  "guilty  "  to  direct  that  the  plea  of  "not  guilty  " 
be  entered  and  then  proceed  with  the  trial  as  if  the  plra  had  originally  been  "not 
guilty."  C.  M.  0. 1, 1914,  4-5;  5, 1914,  4-0;  9, 1914,  3;  25,  1914,  3-4. 

20.  Investigation — The  accused  should  be  informed  by  the  judge  advocate  that  before 
giving  any  credence  to  his  statement  (where  accused  states  his  family  are  destitute, 
etc.,  or  he  desires  to  continue  in  service)  the  department  will  cause  a  full  investigation 
to  be  made  into  the  actual  conditions  claimed. 

The  judge  advocate  should  embody  in  the  record  the  full  names  and  addresses  of 
the  alleged  dependent  persons  so  as  to  facilitate  as  much  as  practicable  the  investi- 
gation which  will  be  instituted  by  the  department.  C.  M.  O.  10, 1913,  5. 

27.  Same — An  accused  stated  on  the  witness  stand  that  he  had  attempted  to  surrender 
at  the  naval  station,  Honolulu,  but  was  not  taken  up  and  claimed  that  the  executive 
officer  would  not  take  him  in  and  advised  him  not  to  surrender,  but  wait  until  he 
arrived  at  San  Francisco. 

The  department,  following  its  usual  custom  as  announced  in  C.  M.  O.  No.  10, 1913, 
caused  an  investigation  to  be  made  of  the  statements  of  the  accused  and  found  them 
to  be  false.  C.M.  0. 20, 1913, 5. 


STATEMENT  OF  ACCUSED.  587 

28.  Nature  of—  Tho  stnf.r.mcnt  of  the  accused  has  a  threefold  function:  (a)  As  a  modifica- 

tion of  the  plea,  which  must  he  considered  by  the  court;  (6)  As  a  summing  up  and 
closing  argument  for  the  defense,  which  may  be  considered  by  the  court;  (c)  As  a 
plea  for  leniency,  which  may  not  be  considered  by  the  court  except  in  recommending 
the  accused  to  the  clemency  of  the  revising  authority.  C.  M.  O.  41, 1914,  4. 

29.  Same— The  accused  shall  be  at  liberty  to  make  a  statement  in  writing,  or,  if  an  official 

stenographer  be  present,  orally,  either  in  person  or  by  counsel.  This  statement,  if 
written, lie  shall  submit  to  the  court  for  inspection  before  it  is  publicly  read,  and,  if 
contains  anything  disrespectful,  the  court  may  prevent  that  part  from  being  read; 
but  the  whole  shall  be  appended  to  the  proceedings,  or  recorded  as  a  part  thereof,  if 
the  accused  desires  it,  and  he  shall  be  held  responsible  for  the  same.  (R-792  (2)). 
See  STATEMENT  OF  ACCUSED,  34,  39. 

30.  Oral  statement— Only  the  substance  of  the  oral  statement  of  the  accused  is  inserted 

in  the  record.  If  no  stenographer  qualified  to  take  an  oral  statement  is  present,  it 
should  be  reduced  to  writing  and  appended  to  the  record  of  proceedings  of  the  general 
court-martial.  C.  M.  O.  26, 1910,  8. 

31.  Out  of  court— Statements  made  by  accused  out  of  court.    C.  M.  O.  211, 1902.    See  also 

CONFESSIONS. 

32.  Procedure  of  court.    See  STATEMENT  OP  ACCUSED,  25.    See  also  C.  M.  O.  22,  1905,  1. 

33.  Record  of  proceedings — Copy  of  statement  of  accused  appended.    Sqe  G.  O.  44, 

Dec.  7,  1804;  C.  M.  O.  1, 1894,  3. 

If  written  defense  is  made  in  general  court-martial  cases  it  is  appended.  In  both 
summary  and  general  court-martial  cases  oral  defense  may  be  entered  in  the  body  of 
the  record  or  reduced  to  writing  and  appended. 

34.  Risht  of  accused  to  make  a  statement-^-Since  it  is  the  right  of  the  accused  to  make 

a  statement,  either  orally  or  in  writing,  if  he  waives  this  right,  the  fact  that  it  was 
accorded  him,  and  not  taken  advantage  of,  should  be  affirmatively  indicated  upon 
the  record  of  proceedings  of  the  general  court-martial.  C.  M.  O.  49, 1910,  5. 

35.  Scope  of — The  court  objected  to  certain  parts  of  the  written  statement  of  accused  "on 

the  ground  that  they  implied  a  criticism  of  on  the  discipline  and  morale  of  the  Oregon, 
which  in  the  absence  of  witnesses,  it  was  impossible  to  refute."  The  accused  then 
"desired  to  omit  the  above  mentioned  paragraphs,"  and  his  statement  was  read 
aloud,  excepting  the  paragraphs  in  question. 

"While  the  propriety  of  the  subject  matter  and  form  of  an  accused  man's  written 
statement  or  defense  is  for  the  court  to  decide  upon,  in  its  discretion, "  the  court  should 
not  be  unduly  severe  in  restricting  the  accused  as  above  indicated.  "Such  action 
appears  not  to  have  worked  injury,  however,  as  the  sentence  imposed  was  the  usual 
oneawarded  for  the  offense  "of  which  the  accused  pleaded  guilty.  C.M.O.223, 1902,2. 

36.  Set  aside.    C.  M.  0. 12, 1897;   159,  1897,  2;   167,  1901. 

37.  Summary  court-martial — Neither  written  defense  nor  argument  nor  any  protracted 

oral  defense  should  be  admitted,  but  the  substance  of  any  oral  statement  may  be 
entered  on  the  record  or  appended. 

38.  Sworn  to — It  is  irregular  and  improper  to  permit  the  statement  of  the  accused  to  be 

sworn  to  and  that  it  is  an  affidavit  adds  nothing  to  its  legal  effect.    C.  M.  O.  22, 1890. 

See  also  AFFIDAVITS,  7. 
3P.  When  submitted — The  statement  of  the  accused  should  not  be  submitted  until  alter 

the  defense  has  closed.    C.  M.  O.  23,  1910,  7.    See  also  C.  M.  O.  75,  1898. 
40.  Written  statement— Submitted  to  court.    C.  M.  O.  47, 1910,  8;  49, 1910,  5;  23,  1910, 5. 

See  also  STATEMENT  OF  ACCUSED,  8, 13,  33,  34. 

STATEMENT   OF   ACCUSED   IN   WRITING   TO    COMMANDING    OFFICER 
PRIOR  TO  TRIAL  BY  GENERAL,  COURT-MARTIAL.    See  CONFESSIONS,  9. 

STATEMENTS  OF  ACCUSED  WHEN  OFFENSE  IS  BEING  INVESTIGATED. 

See  CONFESSIONS,  24. 

STATEMENTS   OF  COUNSEL. 

1.  Evidence— Statements  of  counsel  should  not  be  given  weight  as  evidence.    See  COUNSEL, 
.     51. 

STATUTES. 

1.  Advisory  statutes.    See  ADVISORY  STATUTES. 

2.  Breach  of— Alleging  a  breach  of  a  statute  in  specifications.    See  CHARGES  AND  SPECI- 

FICATIONS, 94. 

3.  Common  law— Construction  of  statutes  with  reference  to  principles  of  common  law, 

etc.   See  COMMON  LAW,  9. 


588  STATUTES. 

4.  Constitutionality  of—"  To  warrant  a  court  in  declaring  unconstitutional  a  law  passed 

by  Congress,  the  defect  of  legislative  power  must  be  of  the  most  plain  and  indisputable 
character,"  and  that  "the  fact  that  a  law  of  Congress  has  been  in  course  of  execution 
for  many  years,  and  has  boen  acquiesced  in  during  that  time,  is  a  strong  reason  why 
the  courts,  especially  those  of  a  subordinate  character  should  not  decide  the  same 
to  be  unconstitutional."  (U.  S.  v.  Mackenzie,  30  Fed.  Cas.  No.  18313,  syllabi.) 
"  Long  acquiescence  in  the  act  is  of  itself  sufficient  evidence  of  the  right  of  Congress 
to  pass  it.'5  (Butler  v.  White,  83  Fed.  Rep.,  581.)  File  26254-1451-11,  J.  A.  G.,  April 
12,  1915,  p.  7. 

5.  Construction  of.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

6.  Criminal  statutes.    File  26516-49,  J.  A.  G.,  June  13,  1911.    See  also  STATUTORY 

CONSTRUCTION  AND  INTERPRETATION,  15,88-92. 

7.  Definition— "Congress  has  no  right  to  enact  as  a  law  that  which  will  be  ineffectual. 

It  can  not  enact  advice  or  counsel.  It  must  make  laws  that  are  rules  of  action,  not 
'expressions  of  will,  that  may  or  may  not  be  followed.'  Counsel  is  a  matter  of  per- 
suasion, law  is  a  matter  of  injunction;  counsel  acts  upon  the  willing,  law  upon  the 
unwilling  also.  (Blackstone's  Commentaries,  44.)  If,  then,  this  will  be  an  injunction 
commanding  the  President  to  appoint,  it  is  a  usurpation;  and  if  it  be  only  counsel,  it 
is  without  the  essential  element  of  a  law;  and  Congress  can  enact  nothing  but  that 
whicjh  is  to  have  the  full  vigor  and  effect  of  a  law."  (18  Op.  Atty.  Gen.  27.)  File 
28687-4:1. 

8.  Derogation  of  appointing  power.    See  OFFICERS,  96;  STATUTORY  CONSTRUCTION 

AND  INTERPRETATION,  26. 

9.  Drafting  statutes--"  The  drafting  of  legislation  in  apt  language  so  that  intent  and 

result  may  harmonize  is  a  special  art  acquired  only  by  long  experience  in  drafting  and 
interpreting  laws.  In  order  that  the  draft  may  accurately  express  the  desired  mean- 
ing and,  at  the  same  time,  not  repeal  or  undesirably  alfect  existing  law,  it  is  essential 
that  the  draftsman  possess  a  thorough  knowledge  of  all  existing  statutes  which  might 
be  affected  by  the  proposed  law,  an  intimate  knowledge  of  the  subject  matter  with 
which  he  is  dealing,  and  be  thoroughly  familiar  with  the  accepted  canons  of  statutory 
interpretation.  Otherwise  the  result  will  most  probably  be  incomplete  and  inade- 
quate legislation,  not  infrequently  involving  a  conflict  with  or  repeal  of  important 
laws  which  it  was  not  desired  to  modify.  The  necessity  for  a  knowledge  of  the  funda- 
mental principles  of  the  rules  of  interpretation  and  construction  of  statutes  on  the 
part  of  one  drafting  a  bill  needs  no  argument;  if  the  construction  which  the  draftsman 
of  a  proposed  law  places  upon  it  can  not  be  sustained  by  the  established  canons  of 
statutory  interpretation,  it  is  manifest  that  his  bill,  if  enacted  into  law,_  will  not  only 
not  accomplish  the  object  which  he  intended,  but  may  even  accomplish  something 
which  is  actually  very  undesirable." 

"  Even  the  most  skillful  draftsman  of  legislation  can  not  guarantee  that  his  product 
will  be  free  from  doubtful  questions,  for  written  language  is,  at  best,  only  an  imperfect 
medium  for  the  expression  of  ideas."  An  Rep.,  J.  A.  G.,  1916,  pp.  17,  18.  See  also 
File  28687-14,  J.  A.  G.,Dec.  14, 1916,  p.  4. 

10.  Judicial  notice— A  naval  court-martial  takes  judicial  notice  of  the  constitution,  public 

statutes,  proclamati9ns,  the  power  of  the  President  and  Executive  Departments, 
matters  of  public  history,  the  Navy  Regulations,  general  and  special  orders  and 
circulars  of  the  department.  File  26251-12159,  Sec.  Navy,  Dec.  9, 1916,  p.  21.  See  also 
FRAUD,  5. 

The  particular  provision  of  law  violated  by  an  accused  is  not  properly  to  be  "charged 
or  proved  "  but  must  be  judicially  noticed  by  courts-martial.  File  26251-12159,  Sec. 
Navy,  Dec.  9, 1916,  p.  21. 

11.  Limitations— Statute  of  Limitations.    See  STATUTE  OF  LIMITATIONS. 

12.  Penal  statutes.   See  STATUTES,  6;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 

15,88. 

13.  Remedial  statutes.    See  REMEDIAL  LAWS. 

14.  Sentences.    See  STATUTORY  SENTENCES. 

STATUTE   OF  LIMITATIONS. 

1.  Absence  from  United  States— The  question  of  a  man's  absence  from  the  United 

States  is  pertinent  in  determining  whether  or  not  he  is  amenable  to  trial  under  A.  G. 
N.  61.  C.  M.  O.  27, 1913, 13,  cited  in  File  26516-213,  J.  A.  G.,  June  27, 1916.  Seealso 
ABSENCE,  14. 

2.  Burden  of  proof.    See  STATUTE  OF  LIMITATIONS,  12, 20. 


STATUTE    OF    LIMITATIONS.  589 

3.  Charges  and  specifications — The  time  of  the  offense  must  be  alleged  so  as  to  bring 

the  offense  within  the  statute.  See  CHARGES  AND  SPECIFICATIONS,  92;  FINDINGS,  27, 
32  35 

4.  Defense— Statute  of  Limitations  is  a  matter  of  defense.    See  STATUTE  OF  LIMITATIONS, 

6, 12, 20. 

5.  Desertion — The  statute  of  limitations  is  never  a  bar  to  the  apprehension  of  a  deserter 

from  the  naval  service,  nor  is  it  a  bar  to  his  trial  unless  the  deserter  chooses  to  plead 
same;  and  in  the  latter  event  the  question  whether  the  statute  applies,  that  is  whether 
the  accused  has  been  absent  from  the  United  States  at  any  time  since  his  desertion 
and  prior  to  the  expiration  of  the  statutory  period,  or  whether  there  has  been  any 
other  "manifest  impediment"  to  his  trial,  is  a  question  for  determination  in  the 
first  instance  by  a  court-martial,  the  same  as  other  questions  of  fact  raised  at  the 
trial.  (File  2651f>-206.)  It  would  be  difficult,  perhaps  impossible,  to  lay  down  any 
general  rule  whereby  to  determine  in  all  cases  under  what  facts  and  circumstances 
the  accused  may  be  deemed  to  be  beyond  the  jurisdiction  of  a  court-martial.  This  is 
a  matter  which  must  needs  be  left  in  each  case,  to  the  judgment  of  the  court  itself 
upon  the  particular  facts  and  circumstances  appearingtherein,  subject  to  revision 
by  the  proper  authorities.  (See  C.  M.  O.  27, 1913, 17.)  File  26516-206,  J.  A.  G.,  Mar. 
29, 1916.  See  also  C.  M.  O.  39, 1901,  2;  28, 1902;  File  26516-197,  J.  A.  G.,  Nov.  6, 1915! 

6.  Same — "As  will  be  seen  from  a  reading  of  the  above  quoted  statute,  it  does  not  begin 

to  run  until  the  expiration  of  the  term  for  which  the  deserter  enlisted.  The  effect 
of  this  proviso  is  to  make  the  period  six  years  from  the  date  of  the  deserter's  enlist- 
ment. As  will  be  further  seen,  the  time  a  deserter  may  have  been  absent  from  the 
United  States  or  not  amenable  to  justice  by  reason  of  some  other  manifest  impedi- 
ment is  excepted  from  the  period  of  limitations.  In  view  of  those  facts,  and  of  the 
further  fact  that  the  plea  of  the  Statute  of  Limitations  is  a  plea  in  bar,  which  must  be 
decided  on  its  own  facts,  in  each  particular  case,  it  is  impossible  for  the  department, 
in  the  absence  of  more  specific  data,  to  inform  you  whether  or  not  the  persons  you 
have  in  mind  are  protected  from  prosecution  by  the  Statute  of  Limitations.  It  may 
be  stated,  however,  that  the  length  of  time  which  may  have  elapsed  since  a  person 
deserted  does  not,  in  itself,  protect  such  a  person  against  arrest  or  the  preferring  of 
charges  against  him,  the  Statute  of  Limitations  being  simply  a  defense  of  which  an 
accused  may  avail  himself  when  brought  to  trial."  File  26616-137,  Sec.  Navy.  July 
9, 1914. 

7.  Same— Officers.    See  DESERTION,  91;  STATUTE  OF  LIMITATIONS,  15. 

8.  Same — Plea  in  bar  sustained  by  court.    See  STATUTES  OF  LIMITATIONS,  16. 

9.  Same — Begins  to  run—"  The  limitation  begins  to  run,  in  case  of  desertion  by  an  en- 

listed man  (unless  the  offender  has  previously  surrendered  himself  or  been  appre- 
hended, or  unless,  by  reason  of  some  manifest  impediment,  he  is  not  then  amenable 
to  justice)  from  the  last  day  of  the  term  for  which  he  enlisted."  (15  Op.  Atty.  Gen., 
162.)  File  26287-458,  (548)  J.  A.  G.,  July  2,  1910,  p.  3. 

10.  Same — An  electrician  first  class,  United  States  Navy,  was  charged  with  "  Knowingly 

and  wilfully  misappropriating  and  applying  to  his  own  use  property  of  the  United 

States  furnished  and  intended  for  the  naval  service  thereof  'f  (between  the  dates  of 

July  1,  1908,  and  Aug.  1,  1908);  and  with  deserting  from  the  Navy  September  27, 

N         1908  (remaining  in  desertion  until  delivered  by  the  civil  authorities  Dec.  27,  1912). 

The  accused  pleaded  the  statute  of  limitations  and  the  president  of  the  court  trans- 
mitted to  the  department  an  extract  from  the  proceedings  of  the  court  stating  that 
the  accused  had  submitted  a  plea  in  bar  of  trial  under  the  statute  of  limitations  which 
the  court  had  decided  was  a  valid  one. 

The  department  returned  the  extract  from  the  proceedings  to  the  court  with  the 
following  remarks: 

The  accused  in  this  case  was  charged  with  "Knowingly  and  wilfully  misappro- 
priating and  applying  to  his  own  use  property  of  the  United  States  furnished  and 
intended  for  the  naval  service  thereof,"  at  the  Navy  wireless  station,  Cape  Blanco, 
Oreg.,  between  July  1  and  August  1, 1908;  and  with  deserting  from  the  Philadelphia 
at  the  navy  yard,  Puget  Sound,  Wash.,  September  27, 1908,  remaining  in  desertion 
until  delivered  by  the  civil  authorities  December  27, 1912.  The  accused  pleaded  the 
statute  of  limitations  and  in  support  thereof  introduced  only  one  witness,  which 
witness  testified  that  he  knew  nothing  whatever  of  the  whereabouts  of  the  accused 
from  July,  1908,  to  November  26, 1910,  on  which  last  named  date  the  accused  entered 
the  employ  of  witness  at  Scotia,  Cal.,  under  the  name  of  *  *  *  and  continued  in 
witness's  employ  until  taken  into  custody  upon  the  above  mentioned  charges.  Upon 
these  facts  the  court  sustained  the  plea  of  the  accused  as  valid. 


590  STATUTE    OF   LIMITATIONS. 

The  following  principles  applicable  to  this  case  are  well  settled,  and  are  briefly 
stated  for  the  consideration  of  the  court: 

The  limitation  of  prosecution  under  article  61,  Articles  for  the  Government  of  the 
Navy,  commences  to  run  in  favor  of  an  accused  on  the  day  that  his  ofiense  is  com- 
mitted, and  continues  to  run  during  a  period  of  two  years  next  ensuing,  unless  in  the 
meantime  the  order  for  his  trial  is  issued;  or  he  flees  from  justice;  or  some  other 
manifest  impediment  prevents  his  being  amenable  to  justice  during  said  period. 

At  the  expiration  of  two  years  after  committing  an  offense  the  accused  becomes 
absolutely  immune  from  prosecution,  unless  he  waives  the  benefit  of  the  statute,  or 
one  of  the  exceptions  contained  therein  prevents  its  operation  in  his  case.  Exemption 
from  prosecution  once  acquired  under  the  statute  can  not  be  forfeited  by  subsequent 
conduct  (Greene  v.  U.  S-  154  Fed.,  424);  and  on  the  other  hand  the  running  of  the 
statute  once  having  been  stopped  (as,  for  example,  by  fleeing  f  rorrrjustice)  its  benefit  is 
forever  lost  to  the  accused  and  can  not  be  regained  (U.  S-  v.  White  5  Cranch  (C.  C.) 
116;  28  Fed.  Cas.  568,  No.  16677). 

Applying  the  foregoing  principles  to  the  present  case,  Charge  I,  the  result  would 
be  that,  immediately  upon  the  expiration  of  two  years  from  the  date  of  the  offense 
alleged  therein  (that  is  about  July  1,  1910),  the  accused  became  absolutely  and  per- 
manently entitled  to  the  benefit  of  article  61,  Articles  for  the  Government  of  the  Navy 
unless  he  had  in  the  meantime  forfeited  the  benefit  of  said  article,  in  which  latter 
event  he  was  deprived  of  its  protection  for  all  time .  It  will  thus  be  seen  that  the  whole 
question  at  issue  refers  to  the  status  of  the  accused  during  the  two  years  following  the 
commission  of  the  alleged  offense.  If  during  that  period  his  conduct  was  such  as 
to  entitle  him  to  the  benefit  of  the  statute  he  could  not  lose  the  exemptionfrom  prose- 
cution so  acquired  by  thereafter  concealing  himself  or  fleeing  from  justice;  and,  on 
the  other  hand,  if  at  any  time  during  that  period  he  forfeited  the  benefit  of  the  statute 
by  concealing  himself  or  fleeing  from  justice  he  could  not  theraf  ter  regain  its  protection 
by  any  subsequent  conduct. 

In  the  present  case,  as  above  stated  no  evidence  was  introduced  by  the  accused 
concerning  his  whereabouts  during  the  two  years  following  the  time  alleged  in  the 
specification  of  Charge  I,  and  accordingly  he  has  failed  to  support  the  plea  to  that 
charge. 

With  reference  to  Charge  II,  it  is  noted  that  no  evidence  whatever  was  introduced 
to  show  the  date  on  which  the  accused  enlisted  in  the  Navy,  or  the  date  on  which 
his  enlistment  expired.  Accordingly,  as  there  was  nothing  to  show  the  date  on 
which  the  statute  of  limitations  (art.  62,  A.  G.  N.)  commenced  to  run  upon  this 
charge,  it  was  not  practicable  for  the  court  to  determine  upon  the  evidence  whether 
the  order  for  the  trial  of  the  accused  upon  said  charge  was  issued  within  a  period  of 
two  years  after  the  expiration  of  his  enlistment.  A  fortiori,  it  could  not  be  deter- 
mined upon  the  evidence  whether  the  accused  was  amenable  to  justice  during  the 
statutory  period  when  it  was  not  shown  by  the  evidence  on  what  date  the  statute 
commenced  to  run,  or  whether  the  period  of  limitation  had  expired. 

The  fact  being  that  the  accused  failed  to  introduce  any  evidence  whatever  upon 
which  the  court  could  determine  whether  or  not  prosecution  in  this  case  is  barred, 
the  department,  directs  that  the  court  reconsider  its  finding  upon  the  plea  in  bar 
interposed  by  the  accused  to  both  of  the  charges  preferred  against  him;  and,  if  it  is 
decided  by  the  court  to  revoke  its  finding  and  overrule  the  plea  of  the  accused,  it  is 
further  directed  that  the  court  proceed  with  the  trial. 

Should  the  court  on  reconsideration  overrule  the  plea  of  the  accused  and  proceed 
with  the  trial,  the  defense  would  be  entitled  to  avail  itself  of  the  statute  of  limitations 
by  evidence  in  support  of  the  plea  of  not  guilty,  in  which  event  the  judge  advocate 
would  have  the  right  to  introduce  evidence  showing  that  the  accused  concealed 
himself  or  fled  from  justice  at  some  time  during  the  statutory  period.  (U.  S-  «•  Cook, 
17  Wall.  179.)  There  is  accordingly  no  danger  of  any  injustice  being  done  to  the 
accused  by  proceeding  with  the  trial,  but  on  the  contrary  he  is  afforded  a  further 
opportunity  to  show  that  he  is  entitled  to  the  protection  of  articles  61  and  62,  Articles 
for  the  Government  of  the  Navy,  if  such  is  the  case;  and,  if  the  court  upon  the  trial 
should  be  of  opinion  that  the  evidence  shows  that  he  was  amenable  to  justice  during 
the  entire  statutory  period,  this  would  be  sufficient  grounds  for  an  acquittal. 

In  its  further  consideration  of  this  case,  the  court  should  take  judicial  notice  of 
the  fact  that  it  is  the  official  duty  of  officers  of  the  Navy  to  take  all  practicable  steps 
for  the  apprehension  of  deserters,  and  of  the  requirements  as  to  offering  rewards. 
notifying  the  civil  authorities  at  the  home  of  the  deserter,  etc.  In  the  absence  of 
evidence  to  the  contrary,  the  law  presumes  that  official  duties  are  properly  performed. 


STATUTE    OF    LIMITATIONS.  501 

The  court  should  also  take  judic  ial  notire  of  the  location  of  Sf  otia,  Cal.,  or  other  place 
in  which  the  accused  may  have  resided  while  in  desertion,  the  remoteness  and  inac- 
cessibility of  such  place,  transportation  facilities  between  it  and  the  outside  world, 
and  facts  of  a  similar  nature  which  may  be  of  importance  in  connection  with  the  ques- 
tion whether  the  accused  endeavored  to  conceal  himself  or  flee  from  justice,  even 
though  he  may  have  been  known  under  his  true  name  in  such  out-of-the-way  place 
which  he  selected  as  his  residence  in  November,  1910.  The  court  should  also  take 
into  consideration  the  evidence  showing  that,  when  the  accused  went  to  work  in 
Scotia,  Cal.,  after  expiration  of  the  period  of  limitations  provided  by  article  61,  Articles 
for  the  Government  of  the  Navy,  he  did  not  inform  his  employer  that  he  had  pre- 
viously served  in  the  United  states  Navy,  and  had  never  been  discharged  therefrom. 

The  court,  after  consideration  of  the  department's  letter,  decided  to  proceed  with 
the  trial.  No  evidence  being  available  to  prove  the  first  charge,  the  court  acquitted 
the  accused  of  said  charge;  and  further  evidence  being  introduced  with  reference  to 
the  second  charge,  the  court  found  that  the  statute  of  limitations  applied  to  said 
second  charge,  and  accordingly  acquitted  the  accused  thereof. 

Article  62,  Articles  for  the  Government  of  the  Navy,  which  fixes  the  limitation 
for  proceedings  in  case  of  desertion  as  two  years  from  expiration  of  enlistment,  con- 
tains two  exceptions:  (a)  Absence  from  the  United  States,  (6)  "  Some  other  manifest 
impediment"  by  reason  of  which  the  accused  "shall  not  have  been  amenable  to 
justice  within  that  period." 

Article  61,  Articles  for  the  Government  of  the  Navy,  which  fixes  the  limitation  for 
proceedings  in  the  cases  of  general  offenses  also  contains  two  exceptions  which  it  will 
be  noted  differ  somewhat  from  article  62,  viz:  "  Unless  by  reason  of  having  absented 
himself,  or  of  some  other  manifest  i  mpediment,  he  shall  not  have  been  amenable  to 
justice  within  that  period." 

With  reference  to  the  latter  art  icle,  it  will  be  noted  that  the  absence  which  prevents 
the  operation  of  the  statute  of  limitations  does  not  necessarily  have  to  be  an  absence 
from  the  United  States,  but  only  such  an  absence  as  may  render  the  accused  not 
"amenable  to  justice."  Construing  a  similar  statute  relating  to  offenses  committed 
by  persons  in  the  Army,  it  has  been  held  by  the  Judge  Ad  vocate  General  of  the  Army: 
"By  the  absence  referred  to  in  the  original  article  in  the  term — 'unless  by  reason  of 
having  absented  himself— is  intended,  not  necessarily  an  absence  from  the  United 
States,  but  an  absence  by  reason  of  a  'fleeing  from  justice,  'analogous  to  that  specified 
in  section  1045.  R.  S.,  which  has  been  held  to  mean  leaving  one's  home,  residence, 
or  known  abode  within  the  district,  or  concealing  one's  self  therein,  with  intent  to 
avoid  detection  or  punishment  for  the  offense  against  the  United  States."  (U.  S. «;. 
O'Brien,  3  Dillon,  381;  U.  S.  r.  White,  5 Cranch  C.  C.,  38,  73  (Fed.  Cas.,  16675);  Gould 
&  Tucker,  Notes  on  Revised  Statutes,  349.)  "Thus  held  that,  in  a  case  other  than 
desertion,  it  was  not  essential  for  the  prosecution  to  be  prepared  to  prove  that  the 
accused  had  been  beyond  the  territorial  jurisdiction  of  the  United  States  in  order  to 
save  the  case  from  the  operation  of  the  limitation."  A  long  list  of  departmental 
decisions  will  be  found  cited  as  supporting  this  statement  in  the  Digest  of  Opinions 
of  the  Judge  Advocates  General  of  the  Army,  1912  (p.  172,  par.  E). 

In  the  Attorney  General's  opinion  of  September  1, 1876  (15  Ops.,  163),  it  was  said, 
"The  language  of  the  exception  is  'unless,  by  reason  of  having  absented  himself,  or 
of  some  other  manifest  impediment,  he  shall  not  have  been  amenable  to  justice,'  etc. 
Absence,  then,  in  order  to  bring  the  accused  therein,  must  be  such  as  to  render  him 
not  amenable  to  justice.  *  *  *  Unquestionably,  absence  in  a  foreign  land  would 
place  the  accused  beyond  such  jurisdiction,  and  thus  make  him  not  amenable:  so, 
it  has  been  thought ,  would  absence  within  the  limits  of  this  country,  if  he  were  where 
the  military  authorities,  by  reasonable  diligence,  could  not  discover  him.  (See  14 
Opin.,  207.)  It  would  be  difficult,  perhaps  impossible,  to  lay  down  any  general  rulo 
whereby  to  determine  in  all  cases  under  what  facts  and  circumstances  the  accused 
may  be  deemed  to  be  beyond  the  reach  and  power  of  the  military  authorities  to  bring 
him  to  trial,  or  beyond  the  jurisdiction  of  a  court-martial.  This  is  a  matter  which 
must  needs  be  left,  in  each  case,  to  the  judgment  of  the  court  itself  upon  the  particular 
facts  and  circumstances  appearing  therein,  subject  to  revision  by  the  proper  authori- 
ties." 

From  the  record  of  proceedings  it  appears  that  the  prosecution  did  not  introduce 
any  evidence  to  support  the  specification  of  the  Prst  charge,  as  the  material  witness 
as  to  the  alleged  offense  sne^ified  therein  could  not  be  located.  The  court  therefore 
acquitted  the  accused  of  this  charge. 

50756°— 17 38 


592  STATUTE    OF   LIMITATIONS. 

The  facts  brought  forth  with  reference  to  the  charge  of  desertion,  as  shown  by  the 
record,  are  as  follows:  The  accused,  while  in  arrest,  left  his  ship  and  station,  the 
U.  S.  S.  Philadelphii,  navy  yard,  Puget  Sound,  Wash.,  without  authority  on  Sep- 
tember 27, 19:>8.  His  commanding  officer  made  special  efforts  to  recapture  him.  by 
having  the  cities  of  Charleston  and  Bremerton  searched  by  the  ship's  police,  and  by 
offering  rewards  which  were  sent  to  the  police  of  all  near-by  cities,  also  to  his  home 
city,  Oakland,  Cal. 

From  the  testimony  introduced  by  the  defense  it  appears  that  the  accused  arrived 
in  Chicago,  111.,  October  1, 1908  (only  four  days  after  his  desertion  from  Puget  Sound 
Wash.).  That  he  remained  in  Chicago  from  October  1,  1908,  until  the  middle  o, 
November,  1908,  when  he  went  to  the  Pacific  coast,  visiting  the  towns  of  Portland, 
Los  Angeles,  and  Oakland,  and  that  he  went  to  Scotia,  Cal.,  where  he  remained  from 
November,  1910,  to  December,  1912. 

The  term  for  which  the  accused  was  enlisted  did  not  expire  until  July  1, 1910,  ami , 
accordingly,  the  statutory  period  of  limitations  for  his  offense  of  desertion  could  not, 
under  any  sircumstances,  expire  prior  to  July  1,  1912.  The  question  for  the  court 
to  decide,  therefore,  was  whether  the  accused  fled  from  justice  at  any  time  between 
the  date  of  his  desertion,  namely  September  27, 1908,  and  July  1, 1912.  The  evidence 
shows  distinctly  that  immediately  upon  deserting  from  the  U.  S.  S.  Philadelphia  at 
the  navy  yard,  Puget  Sound,  Wash.,  the  accused  fled  to  Chicago,  111.,  more  than  half 
way  across  the  country  from  his  "home  city, "  which  was,  as  above  stated,  Oakland, 
Cal.  This  was  certainly  a  "fleeing  from  justice."  Furthermore,  the  evidence  shows 
that  about  20  months  before  the  expiration  of  the  statutory  period  the  accused  went 
to  work  in  Scotia,  Cal.,  where  he  remained  continuously  until  December,  1912,  with 
the  exception  of  infrequent  visits  to  other  places  in  California,  and  thafr-he  concealed 
from  his  employer,  as  also  from  relatives  and  friends,  the  fact  that  he  was  a  deserter 
from  the  Navy. 

Scotia,  Cal.,  is  a  place  of  less  than  500  inhabitants,  and  most  inaccessible,  being 
entirely  off  the  line  of  usual  travel.  This  fact  should  have  been  taken  judicial  notice 
of  and  should  have  been  considered  by  the  court  in  connection  with  all  otherfacts 
•which  tended  to  show  the  absence  of  the  accused  was  by  reason  of  a  "  fleeing  from 
justice."  The  accused  introduced  a  relative  and  personal  friends  as  witnesses  whose 
testimony  showed  that  they  knew  of  the  whereabouts  of  the  accused  during  most  of 
the  period  of  his  absence. 

From  all  the  facts  in  this  case  it  is  the  opinion  of  the  department  that,  during  his 
separation  from  the  service,  the  accused  was  a  fugitive  and  was  not  amenable  to 
justice;  and  that  the  conclusions  of  the  court  on  the  second  charge  are  not  supported 
by  the  evidence.  To  hold  otherwise  would  mean  that  the  Navy  Department  is 
required  to  institute  a  thorough  search  for  deserters,  not  only  in  the  vicinity  of  the 
place  at  which  they  deserted  and  the  place  of  their  last  known  residence,  but  also 
throughout  the  United  States  in  every  city  or  town,  large  or  small,  and  in  this  specific 
case  that  it  was  the  duty  of  the  Navy  Department  to  make  search  for  the  accused  in 
Chicago,  III.,  in  the  cities  on  the  Pacific  coast,  and  even  in  Scotia,  Cal.,  which  appears 
to  have  been  the  smallest  and  most  out-of-the-way  place  hi  which  the  accused  could 
find  employment,  and  an  ideal  place  for  a  deserter  to  conceal  himself.  And  the 
court's  holding,  if  approved  by  the  department,  would  further  mean  that  where  a 
daserter  from  the  Navy  succeeds  in  concealing  himself,  either  in  a  large  city  or  in  a 
small  and  inaccessible  place,  neither  of  which  had  been  known  as  his  home,  he  is, 
nevertheless,  entitled  to  profit  by  his  successful  evasion  of  the  law  and  escape  punish- 
ment on  the  ground  that  prosecution  was  barred  by  the  statute  of  limitations.  How- 
ever, the  purpose  of  such  statutes  is  merely  to  require  reasonable  diligence  on  the  part 
of  public  officers  in  apprehending  offenders  and  cringing  them  to  justice  and  not  to 
place  a  premium  on  the  ingenuity  of  such  offenders  as  succeed  in  concealing  their 
whereabouts  and  escaping  apprehension  for  a  limited  period. 

In  view  of  the  foregoing  remarks  and  of  the  reasons  set  forth  in  the  department's 
letter  directing  the  court  to  reconsider  its  action  in  sustaining  the  plea  of  the  statute 
of  limitations,  the  department  approved  the  proceedings  and  the  findings  and 
acquittal  on  the  first  charge  and  disapproved  the  findings  and  acquittal  on  the  second 
charge.  C.  M.  O.  27, 1913, 13-18. 

11.  Desertion  In  time  of  war.— No  statute  of  limitations  applicable  to  desertion  in  time 
of  war.    File  26516-137,  Sec.  Navy,  July  9,  1914.    See  also  DESERTION,  132-137. 


STATUTE   OF   LIMITATIONS.  593 

12.  Fraudulent  enlistment.— The  accused  was  brought  to  trial  by  general  court-martial 
by  order  of  the  commander  in  chief  United  States  Asiatic  Fleet,  on  the  charge  of 
"fraudulent  enlistment,"  preferred  on  January  6,  1912,  the  specification  alleging 
that  the  olfense  was  committed  on  June  21,  1909,  "more  than  two  years  before  the 
issuing  of  the  order  for  such  trial."  (Art.  61,  A.  G.  N.) 

Upon  arraignment  the  accused,  by  his  counsel,  pleaded  the  statute  of  limitations 
as  contained  in  article  61  of  the  Articles  for  the  Government  of  the  Navy,  which  article 
reads  as  follows: 

"  No  person  shall  be  tried  by  court-martial  or  otherwise  punished  for  any  offense, 
except  as  provided  in  the  following  article,  which  appears  to  have  been  committed 
more  than  two  years  before  the  issuing  of  the  order  for  such  trial  or  punishment, 
unless  by  reason  of  having  absented  himself,  or  of  some  other  manifest  impediment, 
he  shall  not  have  been  amenable  to  justice  within  that  period.  (The  following  article 
contains  the  limitation  with  respect  to  desertion.)" 

It  will  be  observed  that  the  statute  only  runs  in  favor  of  an  accused  party  when 
he  has  not,  "by  reason  of  having  absented  himself  or  of  some  other  manifest  impedi- 
ment,"  placed  himself  beyond  the  jurisdiction  of  a  court-martial ;  in  other  words,  when 
he  has  not  been  within  the  "exceptions"  of  the  statute. 

It  was  said  in  a  memorandum  of  the  Judge  Advocate  General  (26262-1034),  dated 
November  15,  1911,  after  a  review  of  the  numerous  cases,  that — 

"  The  bar  of  the  statute  may  be  interposed  by  a  special  plea,  or  it  may  be  put  in 
evidence  upon  the  general  issue.  In  either  case,  of  course,  it  would  be  the  duty  of 
the  court,  if  it  found  that  the  offender  had  not  been  outside  the  jurisdiction  of  a  court- 
martial,  to  sustain  his  plea  in  the  one  case  or  to  find  in  the  other  that,  even  though 
guilty  of  the  offense,  he  is  not  amenable  to  punishment." 

With  respect  to  the  burden  of  the  proof  in  pleading  a  statute  of  limitations,  while 
the  procedure  varies,  in  the  Federal  courts  such  burden  is  upon  the  party  pleading 
the  statute.  (25Cyc.,  1425.)  Thus,  in  Borland  v.  Haven  (37  Fed.,  394,  413)  it  is  said: 

"  Besides  the  defense  is  an  affirmative  one  set  up  by  the  defendants  themselves, 
and  it  devolves  upon  them  to  show  affirmatively  that  the  bar  has  attached  and  to 
what  part." 

In  the  accused's  case  the  defense  merely  alleged  that  the  statute  of  limitations  was 
relied  on  without  showing  affirmatively  that  the  accused  had  at  all  times  since  he 
committed  the  offense  with  which  he  was  charged  boen  within  the  jurisdiction  of 
a  court-martial.  This  should  have  been  affirmatively  proved,  as  might  have  been 
done  from  the  copy  of  his  professional  and  conduct  record,  which  was  in  the  hands 
of  the  judge  advocate  of  the  court.  As  was  said  in  United  States  v.  Cook  (117  Wall., 
168.  179): 

"Accused  rjersons  may  avail  themselves  of  the  statute  of  limitations  by  special 
plea  or  by  evidence  under  the  general  issue,  but  courts  of  justice,  if  the  statute  con- 
tains exceptions,  will  not  quash  an  indictment  because  it  appears  upon  its  face  that 
it  was  not  found  within  the  period  prescribed  hi  the  limitation,  as  such  a  proceeding 
would  deprive  the  prosecution  of  the  right  to  reply  or  give  evidence,  as  the  case  may 
be,  that  the  defendant  fled  from  justice  and  was  within  the  exception." 

To  the  same  effect  see  United  States  v.  White  (28  Fed.  Cas.,  No.  16,  676)  and  In  re 
Davison  (21  Fed.,  618,  621). 

From  the  argument  made  by  the  counsel  for  the  accused  in  this  case  in  presenting 
the  plea  of  the  statute,  it  appears  that  his  remarks  were  directed  principally  to  the 
fact  that  it  was  erroneous  to  bring  the  accused  to  trial  at  all.  In  this  he  was,  of  course, 
mistaken,  as  above  indicated.  He  should  have  offered  to  show  that  the  accused  was 
not  within  the  exceptions.  This  technical  accuracy  in  pleading,  it  is  believed,  should 
not  be  fully  insisted  upon,  particularly  as  it  is  not  customary-,  under  the  circumstances 
existing  in  this  case,  to  bring  the  man  to  trial.  As  stated  in  the  memorandum  of 
the  Judge  Advocate  General  (26262-1034)  of  November  15,  1910,  referring  to  such  a 
situation  and  to  the  department's  practice: 

"  If  from  the  facts  of  the  case  it  appears  that  the  offense  was  committed  more  than 
two  years  before,  the  offender  is  not  brought  to  trial. 

"Certainly  if  the  prosecution  is  not  prepared  to  prove  that  the  accused  is  within 
the  exceptions  of  the  statute  of  limitations  there  would  be  no  good  reason  ordinarily 
in  trving  an  accused  person  under  those  circumstances  where  the  bar  could  be  pleaded 
and  the  proceeding  summarily  ended."  See  also  C.  M.  O.  31,  1910,  5;  14,  1911. 

Consequently,  although  the  plea  of  the  accused  was  overruled  by  the  court,  yet, 
after  he  nad  pleaded  guilty  and  was  allowed  to  introduce  in  evidence  a  copy  of  his 


594  STATUTE    OF   LIMITATIONS. 

professional  and  conduct  record,  from  which  it  necessarily  appeared  that  he  had  been 
continuously  in  the  Marine  Corps  from  three  days  subsequent  to  the  date  of  the 
fraudulent  enlistment  with  which  he  was  charged' until  the  date  of  his  trial,  it  was 
within  the  sound  discretion  of  the  court  to  have  reversed  its  decision  upon  the  plea 
and  to  have  ended  the  trial.  (25  Cyc.,  1404.) 

The  accused  was  found  guilty  and  sentenced  to  confinement  for  one  year  and  dis- 
honorable discharge,  with  the  usual  forfeitures.  Clemency  was  recommended  by 
six  of  the  seven  members  of  the  court. 

The  reviewing  authority  disapproved  the  proceedings,  findings,  and  sentence,  on 
the  ground  "that  the  offense  with  which  the  accused  is  charged  was  committed 
more  than  two  years  prior  to  the  date  that  he  was  brought  to  trial." 

While,  as  shown  above,  the  disapproval  was  proper,  yet  the  ground  upon  which 
it  is  placed  was  incorrect.  It  is  hardly  necessary  to  repeat  that  the  statute  does  not 
bar  the  trial  of  the  accused  but  must  be  pleaded  by  him  specially  or  shown  by  him 
under  the  general  issue.  C.  M.  0. 10, 1912,  8-10. 

Policy  of  department  not  to  bring  offenders  to  trial  for  "Fraudulent  enlistment" 
unless  the  prosecution  is  prepafed  to  prove  that  the  accused  was  not  amenable  to 
justice  within  a  period  of  two  years  after  the  commission  of  that  offense  by  reason 
of  having  absented  himself  or  for  some  other  manifest  impediment.  C.  M.  O.  31, 
1910,  5.  See  also  FRAUDULENT  ENLISTMENT,  87-90;  STATUTE  OF  LIMITATIONS,  10. 

13.  Legal  impediment  to  trial.    See  STATUTE  OF  LIMITATIONS,  10. 

14.  Offense  dated— So  as  to  bring  offense  within  statute  of  limitations.    C.  M.  O.  23, 

1913,  14. 

15.  Officers — In  view  of  the  language  of  A.  G.  N.  62  it  might  not  be  sufficient  to  draw  up 

charges  and  specifications  and  hold  them  hi  the  department  until  the  deserter  shouH 
be  apprehended,  but  it  would  appear  necessary  to  issue  the  order  for  his  trial  within 
two  years;  that  is  to  say,  the  charges  and  specifications  should  bo  transmitted  to  a 
general  court-martial  with  an  order  directing  that  the  accused  be  brought  to  trinl 
at  the  earliest  practicable  date,  and  that  a  copy  of  the  charges  and  specifications  be 
delivered  the  accused,  etc.,  in  the  usual  form.  This  would  constitute  a  commence- 
ment of  the  proceedings  within  the  statutory  period,  and  the  delay  which  mtaht 
subsequently  occur  would  be  due  to  the  fact  that  tne  accused  was  a  fugitive  from  justice 
and  thereby  himself  prevented  further  proceedings. 

It  should  not  be  lost  sight  of  that,  in  computing  the  statutory  period  of  limitations, 
the  time  during  which  the  accused  was  absent  from  the  United  States  or  other  mani- 
fest impediment  existed  to  his  trial  should  be  excluded.  File  26516-82,  J.  A.  G., 
May  31,  1912.  See  also  DESERTION,  91. 

16.  Plea  in  bar  of  trial — In  the  case  or  an  electrician  first  class  the  court  sustained  the 

plea  of  the  accused  to  the  charges  of  "Desertion"  and  "Knowingly  and  willfully 
misappropriating  and  applying  to  his  own  use  property  of  the  United  States  furnished 
and  intended  for  the  naval  service  thereof,"  although  the  judge  advocate  had  evidence 
which  he  failed  to  introduce  showing  that  the  accused  deserted  after  discovery  of  tho 
shortage  in  Government  property  for  which  he  was  responsible;  that  "all  efforts" 
were  made  to  recapture  him;  that "  Bremerton  and  Charleston  were  searched  by  ship's 
police;"  and  that  "rewards  were  offered  and  sent  to  the  police  of  all  near-by  cities, 
also  to  his  home  city,  Oakland,  Cal.;"  etc.  The  department  directed  "  that  the  court 
reconsider  its  fi-nding  upon  the  plea  in  bar  interposed  by  the  accused  to  both  charges; 
and,  if  it  is  decided  by  the  court  to  revoke  its  finding  and  overrule  the  plea  of  the  ac- 
cused, it  is  further  directed  that  the  court  proceed  with  the  trial.  Should  the  court 
on  reconsideration  overrule  the  plea  of  the  accused  and  proceed  with  the  trial,  the 
defense  would  be  entitled  to  avail  itself  of  the  statute  of  limitations  by  evidence  in 
support  of  the  plea  of  not  guilty."  etc.  File  26251-7158:4.  Sec.  Nav.  May  13,  1913. 

17.  Policy  of  the  department— In  "Fraudulent  enlistment''  cases.    See  FRAUDULENT 

ENLISTMENT,  87-90;  STATUTE  OF  LIMITATIONS,  12,  20. 

18.  Prevent  running  of— In  order  to  prevent  the  running  of  the  statute  of  limitations 

the  order  for  the  trial  of  an  Assistant  Paymaster  upon  certain  ohargas  was  issued  by 
the  department  prior  to  the  preparation  of  the  st>ec]fications.  When  the  charges  and 
specifications  were  subsequently  put  in  due  form  it  was  directed  that  the  previous 
order  be  made  a  part  of  the  record.  Although  the  accused  was  represented  by  civilian 
counsel,  no  plea  of  the  statute  of  limitations  was  interposed.  File  20251-6822;  G.  C. 
M.  Rec.  26451.  See  also  DESERTION,  91;  STATUTE  OF  LIMITATIONS.  15. 

19.  Rule  of  procedure— The  statute  of  limitations  as  contained  in  A.  G.  N.  61  is  "a  rule 

of  procedure  for  the  benefit  of  the  accused,"  etc.  C.  M.  O.  31,  1910,  5.  Sec  also 
STATUTE  OF  LIMITATIONS,  20. 


STATUTE    OF   LIMITATIONS.  595 

20.  Bun— Statute  of  limitations  having  run— It  is  observed  that  the  accused  was  tried 

under  the  second  charge,  that  of  "Fraudulent  enlistment,"  which  offense  was  com- 
mitted more  than  two  years  before  the  issuing  of  the  order  for  trial.  Although 
"  fraudulent  enlistment "  is  not,  like  desertion,  a  continuing  offense  (File  No.  5256-04), 
and  although  the  statute  of  limitations  as  contained  in  article  61  of  the  Articles  for 
the  Government  of  the  Navy  is  "a  rule  of  procedure  for  the  benefit  of  the  accused," 
and  does  not  prevent  the  jurisdiction  of  the  court-martial  from  attaching  in  proper 
cases  (In  re  Bogart.  3  Fed.  Cas.,  No.  1596;  In  re  Davidson,  4  Fed.  Rep.,  507,  21  Fed. 
Rep.,  618;  In  re  White,  17  Fed.  Rep.,  723;  In  re  Zimmerman,  30  Fed.  Rep.,  176; 
Ex  parte  Townsend,  133  Fed.  Rep.,  74;  note  to  U.  S.  v.  O'Brian,  27  Fed.  Cas.,  No. 
15908),  and  as  such  must  be  by  him  pleaded  (In  re  Bogart,  3  Fed.  Cas.,  No.  1596; 
Johnson  v.  U.  S.,  3  Fed.  Cas.,  No.  7418),  yet  it  is  the  policy  of  the  department  not  to 
bring  offenders  to  trial  for  "  fraudulent  enlistment "  unless  the  prosecution  is  prepared 
to  prove  that  the  accused  was  not  amenable  to  justice  within  a  period  of  two  years 
after  the  commission  of  that  offense  by  reason  of  having  absented  himself  or  for  some 
other  manifest  impediment. 

From  the  record  it  appears  that  the  accused  in  this  case  first  enlisted  July  8,  1907, 
deserted  November  18,  1907,  and  fraudulently  enlisted  February  26,  1908.  During 
all  the  period  between  the  last-mentioned  date  and  the  expiration  of  two  years  there- 
from, i.  e.,  February  25,  1910,  the  accused  was  within  the  jurisdiction  of  the  naval 
authorities,  and  could,  if  the  facts  had  been  known,  have  been  brought  to  trial.  But 
lack  of  knowledge  or  necessary  evidence  did  not  prevent  the  statute  from  running  in 
his  favor  (14  Op.  Atty.  Gen.,  266),  and  had  he  pleaded  the  bar  thereof  before  the 
court,  the  plea  should  properly  have  been  sustained. 

As  the  accused  did  not  plead  the  statute  it  must  be  held  that  he  waived  its  benefits 
(Johnson  v.  U.  S.,  3  Fed.  Cas.,  No.  7418),  but  as  already  stated  it  is  the  policy  of  the 
department  not  to  bring  an  accused  to  trial  under  the  circumstances  of  this  case.  The 
sentence  of  the  court  has  already  been  reduced  by  the  reviewing  authority  from  two 
years'  to  one  year's  confinement  with  corresponding  reduction  in  loss  of  pay,  and  as 
that  would  represent  the  sentence  for  desertion  alone,  the  proceedings,  findings,  and 
sentence,  as  mitigated,  were  approved.  C.  M.  0. 31, 1910, 5. 

21.  Specifications— Laid  to  cover  offenses  within.    C.  M.  O.  69,  1903,  2. 

22.  Suggested — Statute  of  limitations  proposed.    An.  Rep.  J.  A.  G.,  1894,  p.  8. 

23.  Trial  of  enlisted  men  by  courts-martial  who  have  absented  themselves  more 

than  two  years  subsequent  to  date  ol  expiration  of  enlistments — "While 
the  statute  of  limitations  is  a  matter  of  defense  which  should  be  entertained  and 
determined  by  the  court  like  any  other  question  involving  an  adjudication  upon 
the  merits  of  the  case,  there  would  be  no  good  reason  ordinarily  in  trying  an  accused 
person  where  the  statute  could  be  pleaded  in  bar  and  the  proceedings  summarily 
ended.  Accordingly  the  established  practice  should  be  continued  of  not  bringing 
offenders  to  trial  where  such  period  of  time  has  elapsed  as  to  prima  facie  constitute  a  bar 
to  trial,  unless  the  prosecution  is  in  possession  or  facts  indicating  that  the  accused  is 
within  the  exceptions  of  the  statute  of  limitations.  (File  26262-1034:3.  See  also 
C.  M.  O.  27,  1913,  13.)  To  this  may  be  added  that,  as  the  accused  may  waive  his 
right  to  plead  the  statute  of  limitations,  if  the  commandant  should  for  any  reason 
deem  it  advisable  to  bring  him  to  trial,  and  the  accused  should  stipulate  that  in  such 
event  he  would  not  avail  himself  of  the  statute,  his  trial  may  be  ordered  if  so  recom- 
mended by  the  commandant,  although  there  may  be  no  evidence  available  to  the 
prosecution  to  indicate  that  the  accused  falls  within  the  exceptions  of  the  statute." 
File  26516-214,  Sec.  Navy,  July  22, 1916. 

24.  Waived— The  statute  of  limitations  must  be  pleaded,  otherwise  it  is  waived.    C.  M.  O. 

31,  1910,  5;  14,  1911,  3.  See  also  G.  C.  M.  Rec.  21479.  See  also  STATUTE  OF  LIMITA- 
TIONS, 20. 

25.  War — No  statute  of  limitations  applicable  for  desertion  in  time  of  war.    See  DESER- 

TION, 132:  STATUTE  OF  LIMITATIONS,  11. 

26.  Warrant  officer  (boatswain)— "  The  records  of  the  department  show  numerous  com- 

plaints from  the  creditors  of  Boatswain  *  *  *  [the  accused]  concerning  the  non- 
payment of  his  debts,  many  of  which  have  extended  over  such  a  period  of  time  that 
prosecution  thereof  is  barred  by  the  Statute  of  Limitations."  C.  M.  O.  34, 1916,  p.  3. 

27.  When  statute  begins  to  run — The  department  in  reviewing  the  record  of  proceedings 

in  the  case  of  a  private,  United  States  Marine  Corps,  observed  that  an  offense  was 
alleged  to  have  bson  committed  by  the  accused  more  than  three  years  prior  to  the 
date  the  specification  was  preferred  against  him. 


596  STATUTE    OF    LIMITATIONS. 

Section  1024  of  the  Revised  Statutes  and  amendments,  covering  the  statute  of 
limitations,  as  set  forth  in  article  61,  Articles  for  the  Government  of  the  Navy,  pro- 
vides as  follows: 

"ART.  61.  No  person  shall  bo  tried  by  court-martial  or  otherwise  punished  for  any 
offense,  except  as  provided  in  the  following  article,  which  appears  to  have  been  com- 
mitted more  than  two  years  before  the  issuing  of  tho  order  for  such  trial  or  punish- 
ment, unless  by  reason  of  having  absented  himself,  or  of  some  other  manifest  impedi- 
ment, he  shall  not  have  been  amenable  to  justice  within  that  period." 

In  view  of  the  above-quoted  law  it  might  appear  that  the  operation  of  the  statute 
of  limitations  would  invalidate  the  proceedings  in  this  case.  It  has  been  held,  how- 
ever, that  the  bar  of  the  statute  of  limitations  is  a  matter  of  defense,  and  that  by  failing 
to  use  it  as  such,  the  defendant  waives  it. 

In  the  case  of  In  re  Bogart  (3  Fed.  Case  No.  596)  the  court  held : 

"  As  to  the  alleged  former  conviction,  and  the  bar  of  the  statute  of  limitations,  these 
are  matters  of  defense,  and  are  questions  for  the  determination  of  the  tribunal  having 
jurisdiction  to  try  the  charge. 

The  latter  may  involve  an  inquiry  as  to  whether  the  petitioner  has  absented  him- 
self, or  whether  other  legal  impediment  to  the  trial  has  existed.  These  are  matters 
that  will  arise  in  the  exercise  of  jurisdiction,  as  in  this  opinion  before  distinguished 
from  the  fact  of  the  existence  of  jurisdiction,  to  hear  and  determine  the  charge.  They 
are  matters  to  be  pleaded  as  a  defense.  (Johnson  v.  U.  S.,  Case  No.  7418);  U.  S.  v. 
Cook,  17  Wall.,  84  U.  S.,  168.)" 

In  the  case  of  Johnson  v.  U.S.,  referred  to  in  the  foregoing  ruling,  the  opinion  of  ttiu 
court  was  as  follows: 

"*  *  *  And  it  is  insisted  that  the  act  prohibits  the  punishment  of  the  offender, 
where  the  prosecution  is  not  commenced  within  two  years,  the  proceedings  were  null 
and  void  and  not  merely  erroneous;  and  that  on  this  ground  the  prisoner  should  be 
discharged.  Where  there  is  a  want  of  jurisdiction  apparent  upon  the  record  the 
proceedings  of  the  court  are  not  valid.  But  there  is  no  want  of  jurisdiction  in  this 
case.  The  court  had  jurisdiction  of  the  offense,  and  if  there  was  a  bar  under  the 
statute  it  should  have  been  pleaieJ.  No  such  plea  was  interposed.  *  *  *  By 
failing  to  set  up  the  defense  the  defendant  waived  it." 

While  it  is  probable  that  the  specification  should  have  alleged  the  offense  to  have 
been  committed  in  the  year  1911,  the  department  considered  that  the  error  would 
not  invalidate  the  proceedings  in  the  case  as,  the  jurisdiction  of  the  court  being 
undoubted,  the  time  laid  in  the  indictment  is  not  material  in  this  aspect  of  the  case. 

Furthermore,  the  accused  having  pleaded  guilty  to  the  specification,  no  injustice 
was  supposed  to  have  been  done.  C.  M.  O.  14,  1911,  3. 

STATUTORY  BOARDS.    See  BOARDS,  1. 

STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

1.  Advisory  statutes.    See  ADVISORY  STATUTES. 

2.  Ambiguous  and  doubtful  statutes— "In  the  construction  of  a  doubtful  and  ambig- 

uous law  the  contemporaneous  construction  of  those  who  were  called  upon  to  act 
under  the  law,  and  were  appointed  to  carry  its  provisions  into  effect,"  should  not  be 
disregarded.  (Edwards  v.  Darby,  12  Wheat.  20<i,  cited  with  approval  in  Atkins  v. 
Disintegrating  Co.,  18  Wall.  272,301;  Smythe  v.  Fiske,  23  Wall. 374,  382;  U.S.  v.  Pugh, 
99  U.  S.  265;  U.  S.  v.  Moore,  95  U.  S.  760,  763.)  15  J.  A.  G.  294-295,  May  31,  1911. 

3.  ''Avowals  of  f  ramers" — It  is  the  duty  of  the  court  to  construe  a  law  or  ordinance,  and 

gather  its  intention  from  the  law  itself,  and  not  from  contemporaneous  avowals  of 
individual  framers  of  it."  (Barnes  v.  Mayor,  etc.  of  Mobile,  19  Ala.  707).  File  24482- 
34,  J.  A.  G.,  May  1,  1911,  p.  18. 

4.  Cases  arising  hereafter— Even  though  the  words  of  a  statute  are  broad  enough  in 

their  literal  extent  to  comprehend  existing  cases,  they  must  yet  be  construed  as 
applicable  only  to  cases  that  may  hereafter  arise,  unless  the  language  employed 
expresses  a  contrary  intention  in  unequivocal  terms.  See  File  8627-189,  May  12, 1915. 
But  see  contra  7  Comp.  Dec.  844. 

5.  Common  law— Construction  of  statutes  intended  to  be  declaratory  of  the  common 

law.    See  COMMON  LAW,  9;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

6.  Common  sense  as  a  guide.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETA- 

TION, 117. 

7.  Conditions  at  time  of  enactment— It  is  an  established  rule  that  statutes  are  to  be 

construed  in  the  light  of  conditions  which  existed  at  the  time  of  their  enactment. 
File  27231-63,  J.  A.  G.,  May  27,  1915,  p.  2. 


STATUTORY   CONSTRUCTION    AND   INTERPRETATION.      597 

The  court  should  eudeavor  to  place  itself  as  far  as  possible  in  the  light  that  the 
legislature  enjoyed,  to  look  at  things  as  they  appeared  to  it,  and  to  discover  the  purpose 
of  the  law  from  the  lan?ua?e  used  in  connection  with  attending  circumstances.  File 
26260-1392,  June  29,  1911,  p.  5. 

8.  Congress — Proceedings  and  debates.    See  STATUTORY  CONSTRUCTION  AND  INTER- 

PRETATION, 17, 18. 

9.  Same — Proceedings  other  than  debates.    See  STATUTORY  CONSTRUCTION  AND  INTER- 

PRETATION, 18. 

10.  Constitutionality  of  a  statute.    See  STATUTES,  4. 

11.  Contemporaneous  construction — The  contemporaneous  construction  of  a  statute 

by  those  charged  with  its  administration,  "should  not  be  disregarded  or  overturned 
except  for  cogent  reasons  and  unless  it  be  clear  that  such  construction  is  erroneous." 
(U.  S.  v.  Johnston,  124  U.  S.  23(5).  File  26260-1392,-  26260-697,  J.  A.  G.,  June  29,  1911, 
p.  5.  See  also  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  2. 

Contemporaneous  and  long  continued  construction  of  the  law  by  the  administra- 
tive officers  charged  with  its  execution  is  controlling,  for  in  such  case  it  is  not  so  im- 
portant to  determine  whether  the  original  construction  of  the  law  was  correct,  as  that 
a  construction  acted  on  for  such  a  period  of  time  should  be  upheld.  (20  Op.  Atty. 
Gen.  362.)  File  26521-144:1,  Sec.  Navy,  July  10,  1916,  p.  3. 

12.  Same — "The  contemporaneous  construction  of  the  law  by  the  department,  which, 

according  to  the  Supreme  Court,  is  entitled  to  great  weight  and  'in  a  case  of  doubt 
ought  to  turn  the  scale.'  (Brown  v.  U.  S.,  113  U.  S.  568.)"  File  27213,  J.  A.  G.,  Apr. 
24, 1909,  p.  4. 

13.  Contemporaneous  and  uniform  interpretation — "This  contemporaneous  and 

uniform  interpretation  is  entitled  to  weight  in  the  construction  of  the  law,  and  in  a 
case  of  doubt  ought  to  turn  the  scale.  (Brown  y.  U.S.,113U.  S.571.)"  Filel.  130-2b, 
J.  A.  G.,  July  31, 1909,  p.  5. 

14.  Context.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  56. 

15.  Criminal  statutes — "  Whether  the  construction  of  a  civil  statute  of  limitations  is  to 

be  strict  or  liberal — a  question  on  which  there  is  no  absolute  harmony  of  opinion— that 
of  a  criminal  one  is  plainly  in  principle  to  be  liberal;  because  it  is  a  provision  in  favor 
of  the  accused  and  we  have  seen  that  this  sort  of  provision  is  to  receive  a  highly  liberal 
construction.  And  such  is  the  doctrine — at  least  the  better  doctrine — of  the  courts." 
(Bishop  on  Statutory  Criminal  Law,  sec.  259.)  File  26516-47,  J.  A.  G.,  May  18,  1911, 
D.  4.  See  also  STATUTES,  6;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION.  88,  92. 

16.  Date — The  general  rule  is  that  laws  speak  from  the  date  of  their  enactment.    File 

13707-38:9.    See  also  25  Op.  Atty.  Gen.  299. 

17.  Debates  in  Congress— Are  frequently  referred  to  in  confirmation  of  a  construction 

otherwise  arrived  at  by  the  court.  (Hepburn  v.  Griswold,  8  Wall.  610.)  File  26255- 
14/A,  J.  A.  G.,  May  4, 1909,  p.  4.  See  also  File  26253-114,  J.  A.  G.,  Aug.  19,  1910,  p.  14. 
18. .  Same — "  While  a  statute  must  ordinarily  be  construed  from  the  language  used  therein, 
it  is  not  inadmissible  to  revert  to  the  actual  proceedings  in  Congress,  apart  from  the 
opinions  expressed  in  debates,  to  assist  in  the  determination  of  the  construction 
of  a  statute  of  doubtful  import,  and  the  Supreme  Court  has  thus  interpreted  a  badly 
expressed  enactment.  (Blake  v.  National  Banks,  23  Wall.  307.)"  File,  14818-4,  J.  A. 
G.,  p.  17. 

19.  Definition— Of  statutory  construction  and  interpretation.    See  WORDS  AND  PHRASES 

(CONSTRUCTION  OF  STATUTES). 

20.  Departmental  circulars — The  courts  in  construing  statutes  involved,  in  cases  of 

doubt,  attach  considerable  weight  to  the  provisions  of  departmental  circulars  as 
indicating  the  administrative  construction.  (See  for  example  Plummer  v.  U.  S.,  224 
U.  S.  143,  involving  circular  of  the  surgeon  general  with  reference  to  the  pay  of  Acting 
assistant  surgeons  in  the  Navy.)  File  13707-48,  J.  A.  G.,  Aug.  2,  1915. 

21.  Departmental  construction— The  construction  given  to  a  statute  by  those  charged 

with  the  duty  of  executing  it  is  always  entitled  to  the  most  respectful  consideration, 
and  ought  not  to  be  overruled  without  the  most  cogent  reasons.  (U.  S.  v.  Moore,  95 
U.  S.  760, 763.)  The  officers  concerned  are  usually  able  men  and  masters  of  the  subject. 
Not  infrequently  they  are  the  draftsmen  of  the  laws  they  are  afterwards  called  upon 
to  interpret.  (Reports  of  J.  A.  G.,  1895, 1896, 1897;  U.  S.  v.  Moore,  95  U.  S.  763;  Brown 
».  U.  S.,  113  U.S.  571;  Heath  v.  Wallace,  138  U.  S.  582;  File  26255-14/A,etc.,  J.A.G., 
May  4,  1909.)  File  26260-1294,  J.  A.  G.,  June  10,  1911,  p.  7;  15  J.  A.  G.,  294-295,  May 
31,  1911;  26260-1392,  26260-697,  J.  A.  G.,  June  29,  1911,  p.  5.  See  also  File  26260-396e, 
J.  A.  G.,  Feb.  24, 1910,  p.  10. 


598   STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

22.  Same—"  It  is  now  settled  that  the  construction  and  practice  of  the  executive  depart- 

ment charged  with  the  administration  of  a  statute  is  controlling  in  cases  of  doubt." 
File  26251-2993,  J.  A.  G.,  Mar.  10,  1910,  p.  9. 

23.  Same — "When  an  act  of  Congress  has  for  a  considerable  period  of  time  received  a 

uniform  departmental  construction,  and  this  construction  was  known  to  Congress, 
and  a  subsequent  act  in  parimateria  is  enacted  without  change  of  language,  there  is  a 
presumption  of  considerable  force  that  the  new  language  is  intended  to  receive  the 
same  construction  as  the  old."  (21  Op.  Atty.  Gen.  339.)  File  3980-1075,  J.  A.  G., 
Apr.  6,  1915. 

24.  Same — The  Supreme  Court  has  held  that  the  substantial  reenactmont  of  a  statute 

which  has  received  departmental  construction  is  not  merely  "indicative  of  legisla- 
tive approval  of  the  departmental  construction  "  but  that  "Congress  will  be  held 
to  have  adopted  that  construction."  (U.  S.  v.  Falk,  204  U.  S.  143.)  The  case  cited 
related  to  the  construction  of  a  law  by  the  Attorney  General  which  was  followed 
by  the  executive  officers  charged  with  its  administration. 

In  United  States  v.  Hermanos  (209  U.  S.  327)  this  principle  was  extended  to  the 
construction  of  a  statute  by  the  Treasury  Department  ana  its  subsequent  reenact- 
ment  by  Congress;  the  court  there  stating:  "  We  have  said  that  when  the  meaning  of 
a  statute  is  doubtful  great  weight  should  be  given  to  the  construction  placed  upon 
it  by  the  department  charged  with  its  execution.  (Robertson  v.  Downing,  127  U.  S. 
607;  U.  S.  v.  Healey,  160  U.  S.  136.)  And  we  have  decided  that  the  reenactment  by 
Congress,  without  cnange,  of  a  statute,  which  had  previously  received  long  continued 
executive  construction,  is  an  adoption  by  Congress  of  such  construction.  (U.  S.  v. 
Falk,  204  U.  S.  143,  152.)" 

In  this  connection  attention  is  invited  to  the  decision  of  the  Court  of  Claims  in  the 
case  of  Falk  v.  United  States  (2S  Ct.  Cls.  242)  that  "where  a  jurisclictional  act  adopts 
the  language  of  a  previous  statute  which  had  been  interpret  ed  for  several  years  in  a 
certain  way  by  an  executive  department,  it  must  be  inferred  that  Congress  intended 
to  use  the  language  as  thus  interpreted;"  the  Court  of  Claims  stating  in  its  opinion, 
with  reference' to  the  interpretation  of  the  later  act,  that  "Congress  intended  to  use 
therein  the  words  'citizens  of  the  United  States,'  ia  the  sense  that  had  been  given  by 
the  Interior  Department  to  the  same  words  in  the  act  of  1885  for  the  past  six  years, 
which,  it  must  be  presumed,  was  known  to  Congress." 

The  Comptroller  of  the  Treasury  has  also  recognized  and  applied  this  principle  in 
the  interpretation  of  statutes.  (See  for  example  2  Comp.  Dec.  100.) 

Reference  may  also  be  made  to  the  decision  of  the  Court  of  Claims  in  Carlinger  v. 
United  States  (30  Ct.  Cls.  476)  in  which  it  was  hold  that  the  interpretation  given  to 
the  laws  by  executive  regulations  which  have  "received  the  tacit,  if  not  express, 
approval  of  Congress,"  will  not  be  disturbed  by  the  court  even  though  it  "may  well 
be  doubted"  whether  such  regulations  were  in  fact  authorized  by  law. 

Furthermore,  it  has  repeatedly  been  held  by  the  Attorney  General  that  the  teen- 
actment  of  a  law  which  has  received  executive  construction  is  equivalent  to  the 
adoption  by  Congress  of  such  construction.  (21  Op.  410;  id.  3;i9;  id.  352;  15  id.  6-4(5.) 

In  this  connection  it  may  also  be  remarked  that  the  Supreme  Court  in  Wilkes  v. 
Dinsman  (supra),  in  holding  that  enlisted  men  of  the  Marine  Corps  were  embraced 
by  a  statute  providing  for  active  duty,  after  expiration  of  enlistment,  of  persons 
"enlisted  for  the  Navy,"  added,  as  strengthening  its  conclusion:  "Such  was  the 
construction  put  on  this  section  at  the  time  by  the  Navy  Department  and  navy 
officers  on  board  *  *  *  ."  File  26280-61,  Sec.  Navy,  July  10,  1915. 

"When  an  act  of  Congress  has,  by  actual  decision  or  by  continued  usuage  and 

Eractice,  received  a  construction  at  the  proper  department,  and  that  construction 
as  been  acted  on  for  a  succession  of  years,  it  must  be  a  strong  and  palpable  case  of 
error  and  injustice  that  would  justify  a  change  in  the  interpretation  to  be  given  it. 
(2  Op.  Atty.  Gen.  55S.    See  also  11  Op.  Atty.  Gen.  558.)    File  313-42,  J.  A.  G.,  Mar. 
3, 1908,  p.  5;  26255-1 4-A,  etc.,  J.  A.  G.,  May  4,  1909,  p.  2. 

25.  Departmental  practice— "  The  long  continued  practice  of  a  department  of  the  Govern- 

ment, if  not  clearly  illegal,  will  be  recognized  oy  the  courts  in  the  construction  of  a 
statute  as  entitled  to  great  weight."  File  26516-38,  J.  A.  G.,  Dec.  3, 1910,  p.  4. 

26.  Departmental  precedents— Where  the  department's  precedents  establish  a  uniform 

practice  it  was  neld  by  the  Supreme  Court  of  the  United  States  that  the  contemporane- 
ous and  uniform  interpretation  of  a  statute  by  an  executive  department  charged 
with  its  administration  is  conclusive  even  though  the  true  construction  of  the  law 
might  be  open  to  doubt  were  the  question  a  new  one.  (Brown  v.  U.  S.,  113  U.  S.  56,-t.) 
File  177,9-20,  J.  A.  G.,  De3.  18,  1913. 

27.  Departmental  usuage.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  24. 


STATUTORY   CONSTRUCTION  AND   INTERPRETATION.       599 

23.  Derogation  of  the  appointing  power— " Statutes  in  derogation  of  the  appointing 
power  must  be  strictly  construed,  and  not  extended  any  further  than  is  required  by 
the  plain  import  of  the  words  used."  File  5252-36,  J.  A.  G.,  May  5, 1910,  p.  9.  See 
also  OFFICERS,  96. 

29.  Difficulty  of  construction — "Even  the  most  skillful  draftsman  of  legislation  can  not 

guarantee  that  his  product  will  be  free  from  doubtful  questions,  for  written  language 
is,  at  best,  only  an  imperfect  medium  for  the  expression  of  ideas.  As  the  Supreme 
Court  has  stated,  there  have  not  been  wanting  '  illustrious  instances  of  great  minds 
which,  after  they  had,  as  legislators  or  commentators,  reposed  upon  a  short  and 
hasty  opinion,  have  deliberately  withdrawn  from  their  first  impressions  when  they 
came  upon  the  judgment  seat  to  re-examine  the  statute  or  law  in  its  full  bearings.' 
[Mitchell  v.  Great  Works  Milling  etc.-Co.  (2  Story  653).]"  An.  Rep.,  J.  A.  G.,  1916, 
p.  18.  See  also  STATUTES,  9;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 
30-31. 

30.  Draftsman— "What  is  known  as  the  'legislative  intent'  may  be,  and  very  frequently 

is.  quite  a  different  thing  from  the  intention  of  the  individual  who  drafted  the  bill." 
14  J.  A.  G.,  62.  Nov.  3,  1908. 

31.  Same — "Thve  intention  of  the  draftsman  of  the  act  or  the  individual  members  of  the 

legislature  who  voted  for  and  passed  it.  has  nothing  to  do  with  its  construction.  The 
only  just  rule  of  construction  especially  among  a  free  people,  is  the  meaning  of  the 
law  as  expressed  to  those  to  whom  it  is  prescribed,  and  who  are  to  be  governed  by  it. 
(City  of  Richmond  v.  County  of  Henrico,  2  S.  E.  26,  30).  File  244S2-34,  J.  A.  G., 
May  1,  1911,  p.  17. 

"It  is  not  understood  by  many  who  irresponsibly  draft  proposed  laws,  that  statutes 
are  interpreted  not  by  what  the  draftsman  intended  to  say.  but  by  what  the  words 
used  do  actually  say  as  determined  by  the  ordinary  canons  of statutory  construction." 
An.  Rep.  J.  A.  G.,  1916,  pp.  17-18.  See  also  STATUTES,  9,  with  reference  to  impor- 
tance of  drafting  proposed  laws. 

32.  Directory  statutes.    See  MANDATORY  REGULATIONS  AND  LAWS;  C.  M.  O.  27, 1898,  1: 

File  28550-3,  J.  A.  G.,  May  12,  1915,  p.  4. 

33.  Effect  to  be  given  every  word.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETA- 

TION, 65, 123. 

34.  Ejusdem  generis.    See  EJUSDEM  GENERIS. 

35.  Evil  statute  Is  designed  to  remedy— The  object  which  the  legislative  body  sought 

to  attain  and  the  evil  which  it  was  endeavoring  to  remedy  may  always  be  considered 
for  the  purpose  of  ascertaining  its  intention.  (U.  S.  v.  Ninety-Nine  Diamonds,  139 
Fed.  961,  965.)  File  26253-200-1,  J.  A.  G.,  Feb.  17,  1912,  p.  8. 

36.  Same — "Another  guide  to  the  meaning  of  a  statute  is  found  in  the  evil  which  it  is 

designed  to  remedy;  and  for  this  the  court  properly  looks  at  contemporaneous  events, 
the  situation  as  it  existed,  and  as  it  was  pressed  upon  the  attention  of  the  legislative  body. 
(Holy  Trinity  Church  v.  U.  S.,  143  U.  S.,  457,  465.)    File  26253-200:1,  J.  A.  G.  Feb. 
17,  1912,  pp.  8-9;    26260-1392,  26260-697,  J.  A.  G.,  June  29,  1911,  p.  8. 

"A  construction  of  a  statute  which  vrould  go  beyond  the  evil  intended  to  be 
remedied  and  produce  apparently  unforeseen  and  untoward  results  should  be 
avoided."  (28  Op.  Atty.  Gen.  78.)  File  26510-38,  J.  A.  G.,  Dec.  3,  1910,  p.  4. 

37.  Expressio  unlus  est  exclusio  alterlus — "Where  a  statute  enumerates  the  persons  or 

things  to  be  affected  by  its  provisions,  there  is  an  implied  exclusion  of  others;  there 
is  then  a  natural  inference  that  its  application  is  not  intended  to  be  general.  (Suther- 
land, sec.  327.)  File  27213,  J.  A.  G.,  Apr.  24, 1909,  p.  4. 

38.  Extension  by  Implication.    See  OFFICERS,  96. 

39.  Flexible  language— "By  such  a  reading  and  consideration  of  a  statute  its  object  or 

general  intent  is  sought  for  and  the  consistent  auxiliary  effect  of  each  individual  part. 
Flexible  language  which  may  be  used  in  a  restrictive  or  extensive  sense  will  be  con- 


40.  General  act  repealing  a  previous  particular  act.    See  STATUTORY  CONSTRUCTION 

AND  INTERPRETATION,  115  117. 

41.  General  words— May  be  restricted  by  context.    See  STATUTORY  CONSTRUCTION  AND 

INTERPRETATION,  56;  WORDS  AND  PHRASES  ( Noscitur  a  sociis). 

42.  General  and  special  provisions.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETA- 

TION, 115-117. 

43.  "  Hereafter."    See  "HEREAFTER." 

44.  Implied  repeals  never  favored.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETA- 

TION, 109. 


BOO      STATUTORY  CONSTRUCTION    AND   INTERPRETATION. 

45.  In  parl  materia.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  23;  WORDS 

AND  PHRASES. 

46.  Inconvenience,  injustice,  or  prejudice  to  public  Interests — It  is  only  where  the 

proper  construction  is  otherwise  doubtful  that  arguments  based  on  the  inconvenience, 
injustice,  or  prejudice  to  the  public  interests  resulting  from  a  proposed  construction 
may  be  considered.  File  26521-30,  Jan.  25, 1912.  See  also  26  Op.  Atty.  Gen.,  537. 

47.  Increase  of  personnel  by  implication— It  has  repeatedly  been  held  that  legislation 

relating  to  the  Navy  should  not  be  construed  as  impliedly  increasing  the  officers 
authorized  by  law.  where  no  such  result  was  intended  by  Congress;  that  when 
Congress  has  seen  fit  to  make  increases  in  the  number  of  officers  in  the  Navy,  either 
generally  or  in  particular  corps  or  grades,  it  has  generally  used  specific  and  apt 
language  to  accomplish  that  object.  (See  28  Op.  Atty.  Gen.  526;  see  also  File  27215-3, 
May  6, 1913.)  File  5460-81,  J.  A.  G.,  May  12, 1916. 

48.  Individual  legislators.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  3,  53. 

49.  Injustice  to  public  interests.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 

46. 

60.  Intent  of  legislature — It  is  the  intent  of  the  legislature,  as  expressed  in  the  law  itself 
and  apparent  upon  its  face,  that  must  govern  its  construction  if  that  intent  can 
reasonably  be  gathered  from  its  terms.  (U.  S.  v.  Goldenberg,  168  U.  S.,  95, 102.) 
File  26253-200:1,  J.  A.  G.,  Feb.  17, 1912,  p.  8.  See  also  File  20253-114,  Aug.  19,  1910, 
p.  14. 

1 '  Faults  in  expression  were  disregarded  in  order  to  carry  out  the  manifest  intention 
of  the  law-makers."  File  26521-144:1,  Sec.  Navy,  July  10,  1916,  p.  3. 

"The  intent  of  the  present  laws  can  only  be  gathered  from  the  intent  of  the  legis- 
lature as  expressed  in  the  laws  themselves."  File  28687-14,  J.  A.  G.,  Dec.  14, 1916,  p.  4. 

51.  Same — It  is  the  duty  of  the  courts  to  say  that,  however  broad  the  language  of  statute 

may  be,  the  act,  although  within  the  letter,  is  not  within  the  intention  of  the  legis- 
lature, and  therefore  can  not  be  within  the  statute.  (Holy  Trinity  Church  v.  U.  S., 
143  U.  S.,  457,  472.)  File  26253-200:1,  J.  A.  G.,  Feb.  17,  1912,  p.  8. 

52.  Same — The  modern  doctrine  is  that  to  construe  a  statute  liberally  or  according  to  its 

equity  is  nothing  more  than  to  give  effect  to  it  according  to  the  intention  of  the  law- 
maker, as  indicated  by  its  terms  and  purposes.  (Sutherland  on  Statutory  Construc- 
tion.) 14  J.  A.  G.  (Solicitor),  18,  May  26,  1908. 

53.  Same^—"  The  legislative  intent  is  an  uncertain  guide  of  interpretation  and  the  opinions, 

motives,  or  purposes  of  individual  legislators,  remarks  made  in  debate,  or  the  inten- 
tion of  the  draftsman  of  the  statute  are  too  uncertain  to  be  considered  in  its  con- 
struction." (Tennant  v.  Kuhlemeier,  120  N.  W.  689.)  File  24482-34,  J.  A.  G.,  May 
1, 1911,  p.  18. 

54.  Same— The  intent  of  the  legislature  is  to  be  ascertained  from  a  consideration  of  the  en- 

tire act,  its  nature,  its  object,  and  the  consequences  that  would  result  from  construing 
it  one  way  or  the  other  (36  Cyc.,  1157).  File  26260-1244,  J.  A.  G.,  Apr.  14, 1911,  p.  2. 

55.  Same — "A  legislative  act  is  to  be  interpreted  according  to  the  intention  of  the  legis- 

lature apparent  upon  its  face.  (U.  S.  v.  Fisher,  109  U.  S..  145.)  The  Supreme  Court 
have  also  said, '  We  must  take  it  to  be  true  that  the  legislature  intend  precisely  what 
they  say,  and  to  the  extent  which  the  provisions  of  the  act  require  for  the  purpose  of 
securing  their  just  opinion  and  effect.'  (2  Story,  U.S.,  653.)"  File  26253-114,  J.  A.  G., 
Aug.  19, 1910,  p.  14. 

56.  Same— "The  proper  course  in  all  cases  is  to  adopt  that  sense  of  the  words  which  best 

harmonizes  with  the  context,  and  promotes  in  the  fullest  manner  the  policy  and  objicts 
of  the  legislation.  The  rule  of  strict  construction  is  not  violated  by  permitting  the 
words  of  a  statute.to  have  their  full  meaning,  or  the  more  extended  of  two  meanings, 
as  the  wider  popular  instead  of  the  more  narrow  technical  one;  but  the  words  should 
be  taken  in  such  a  sense,  bent  neither  one  way  nor  the  other,  as  will  best  manifest  the 
legislative  intent."  (U.  S.  j.  Hartwell,  6  Wall.,  385,  395,  construing  a  penal  statute.) 
File  26260-1302. 26260-697,  J.  A.  G.,  June  29, 1901,  pp.  18-19.  See  also  BOARDS,  1. 

It  is  established  by  the  authorities  that  the  intention  of  the  individual  by  whom 
a  statute  was  framed  can  not  be  considered  in  determining  the  meaning  of  such 
Statute.  File  24482-34,  May  1,  1911. 

57.  Same — "As  a  general  rule,  where  an  act  is  prohibited  and  made  punishable  by  statute, 

the  statute  is  to  be  construed  in  the  light  of  the  common  law,  and  the  existence  of  a 
criminal  intent  is  essential.  The  legislature,  however,  may  forbid  the  doing  of  an  act 
and  make  its  commission  criminal  without  regard  to  the  intent  of  the  doer,  and  if 
such  an  intention  appears  the  courts  must  give  it  effect  though  the  intention  may 
have  been  innocent.  Whether  or  not  in  a  given  case  a  statute  is  to  be  so  construed 
is  to  be  determined  by  thu  court  by  considering  the  subject  matter  of  the  prohibit  ion 
as  well  as  the  language  of  the  statute  and  thus  ascertaining  the  intention  of  the  legis- 
lature." (12  Cyc.,  148.) 


STATUTORY   CONSTRUCTION   AND   INTERPRETATION.      601 

"The  legislature  may  enact  laws  for  the  mere  violation  of  which,  irrespective  of  the 
criminal  intent,  penalties  are  attached;  as  for  selling  liquors  to  minors,  selling  adul- 
terated food  and  drugs,  allowing  minors  to  frequent  saloons,  changing  and  obstructing 
public  roads,  maintaining  a  nuisance,  disposing  of  mortgaged  property."  (8  A.  &  E. 
Ency.  of  Law,  p.  291.)  C.  M.  O.  5,  1912,  7. 

"  Where  it  can  be  shown  that  a  Government  has  once  adopted  a  certain  rule  of  justice 
for  its  conduct,  it  is  fair  to  infer,  that  in  legislating  afterwards  upon  the  same  subject, 
it  intended  to  pursue  the  same  rule,  unless  the  contrary  shall  be  clearly  expressed." 
(U.  S.  v.  Heth,  3  Cranch  399,  409.)  File  26521-1(19,  J.  A.  G.,  Nov.  14, 1916,  p.  4. 

58.  Intention  of  individual  who  framed  statute.    See  STATUTORY  CONSTRUCTION 

AND  INTERPRETATION,  3,  53,  57. 

59.  "Interpretation  clauses" — "Clauses  of  the  same  character  (known  in  England  as 

'interpretation  clauses')  are  frequently  added  to  single  acts,  and  are  confined  to  the 
interpretation  of  the  acts  to  which  they  are  attached."  (26  A.  &  E.  Ency.  Law, 
036,  637.)  File  26254-78,  J.  A.  G.,  July  1, 1908,  p.  3. 

60.  Judge  Advocate  General— Construction  of  "Statutes  relating  to  personnel"  of  naval 

service  is  part  of  duties  of  Judge  Advocate  General.  See  JUDGE  ADVOCATE  GEN- 
ERAL, 14, 20,  32. 

61.  Judicial  decisions  of  a  former  act.   See  STATUTORY  CONSTRUCTION  AND  INTERPRE- 

TATION, 69. 

C2.  Language  clear  and  unambiguous — There  is  no  safer  or  better  settled  canon  of 
the  interpretation  than  that  when  language  is  clear  and  unambiguous  it  must  be  held 
to  mean  what  it  plainly  expressed,  and  no  room  is  left  for  construction.  (Swarts  v. 
Sigel,  117  Fed.  Rep.,  13,18.)  File  3980-575:17,  J.  A.  G.,  Aug.  19,  1911,  p.  13. 

63.  Language  used—"  In  construing  an  act  of  Congress  we  are  not  at  liberty  to  recur  to 

the  views  of  individual  members  in  debate,  nor  to  consider  the  motives  which  in- 
fluences them  to  vote  for  or  against  its  passage.  The  act  itself  speaks  the  will  of  Con- 
gress, and  this  is  to  be  ascertained  from  the  language  used."  (U.  S.  v.  Union  Pacific 
R.  R.  Co.,  9  U.  S.,  79.)  File  24482-34,  J.  A.  G.,  May  1,  1911,  p.  18. 

64.  Language  and  apparent  objects — "In  truth,  courts  of  justice  are  not  at  liberty 

to  look  at  considerations  of  this  sort.  We  are  bound  to  interpret  the  act  as  we  find  it, 
and  to  make  such  an  interpretation  as  its  language  and  its  apparent  objects  require. 
We  must  take  it  to  be  true  that  the  legislature  intend  precisely  what  they  say,  and 
to  the  extent  which  the  provisions  of  the  act  require  for  the  purpose  of  securing  their 
just  opinion  and  effect.  Any  other  course  would  deliver  over  the  court  to  intermi- 
nable doubts  and  difficulties;  and  we  should  be  compelled  to  guess  what  was  the  law, 
from  the  loose  commentaries  of  different  debates,  instead  of  the  precise  enactments 
of  the  statute."  (Mitchell  v.  Great  Works  Milling,  etc.,  Co.,  2  Story,  653.)  File 
24482-34,  J.  A.  G.,  May  1,  1911,  p.  18. 

65.  Law  must  be  construed  as  a  whole— It  may  be  necessary  to  consider  every  part  of 

an  act  in  its  effect  upon  other  parts  in  order  to  arrive  at  a  construction  that  will  be 
effective.  File  11130-2b,  July  31,  1909,  p.  5.  See  also  STATUTORY  CONSTRUCTION 
AND  INTERPRETATION,  123. 

66.  Law  should  be  settled  permanently— But  it  is  almost  as  important  that  the  law 

should  be  settled  permanently  as  that  it  should  be  settled  correctly.  Its  rules  should 
be  fixed  deliberately  and  adhered  to  firmly,  unless  clearly  erroneous.  Vacillation 
is  a  serious  evil.  File  5252-68,  May  15, 1915,  quoting  Gilman  v.  Philadelphia  (3  Wall., 
724).  See  also  STARE  DECIRIS,  1. 

f.7.  Legislative  construction—"  While  an  expression  of  the  legislative  view  as  to  the  proper 
construction  of  another  law  is  of  no  judicial  force,  it  is  nevertheless  entitled  to  some 
weight  in  the  construction  of  doubtful  statutes."  (26  A.  &  E.  Ency.  of  Law,  636,  637.) 
File  26254-78,  J.  A.  G.,  July  1,  1908,  p.  3. 

OS.  Legislative  intent.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  50-58. 

ti'J.  Legislature  presumed  to  know — "It  is  a  general  rule  of  interpretation  that  the 
legislature  is  presumed  to  know  decisions  of  the  courts  construing  its  language,  so 
that  if  the  tribunals  have  given  a  certain  construction  and  the  legislature  in  a  new 
law  uses  the  same  or  practically  the  same  language,  without  negativing  the  con- 
struction adopted  by  the  courts,  it  will  be  presumed  that  the  legislature  means  what 
the  courts  have  said."  (25  Op.  Atty.  Gen.,  309.)  It  is  well  settled  that  "  words  in  a 
subsequent  act  are  to  be  given  the  recognized  meaning  they  had  in  a  former  act 
in  pari  materia  in  the  absence  of  anything  to  show  a  contrary  intent,  and  judicial 
decisions  construing  one  of  such  acts  form  a  sound  rule  of  construction  for  the  other." 
(26  A.  &  E.  Ency.  of  Law,  611.)  File  26254-50,  J.  A.  G.,  July  1, 1908,  p.  2. 


602   STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

70.  Letter  of  statute— It  is  the  duty  of  courts  to  say  that,  however  broad  the  language 

of  the  statute  may  be,  the  act,  although  within  the  letter,  is  uot  within  the  intention 
of  the  legislature,  and  therefore  can  not  be  within  the  statute.  ( I  loly  Trinity  Church 
v.  U.  S..  143  U.  S.,  457,  472.)  File  20253-200:1,  J.  A.  G.,  Feb.  17,  1912,  p.  8. 

71.  Same— The  spirit  and  purpose  of  a  statute  are  not  to  be  lost  sight  of  in  a  strict  adherence 

to  its  letter.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  100. 

72.  Literal  sense  of  the  law  not  necessarily  its  true  sense—"  But  the  literal  sense  of 

the  law  is  not  necessarily  its  true  sense,  for  if,  by  taking  the  law  by  its  four  corners 
or  by  looking  at  it  in  the  light  of  the  circumstances  in  which  it  was  passed,  or  by 
doing  both,  it  appears  that  its  meaning  should  be  restricted  or  enlarged  in  order  to 
carry  out  the  intention  of  the  legislature,  it  is  the  duty  of  the  expounder  to  limit 
or  amplify  that  meaning,  as  the  case  may  require."  (19  Op.  Atty.  Gen.,  610.) 
File  20280-61.  Sec.  Navy,  July  10,  1915;  15252-00,  J.  A.  G.,  May  13,1915,  p.  7. 

73.  "Making  law"— It  is  the  province  of  the  courts  to  construe  and  interpret  laws,  not  to 

make  them — "It  is  the  business  of  courts  to  decide  what  the  law  is,  and  not  by  con- 
sideration or  surmises  as  to  the  policy  of  the  Government  have  the  effect  to  adjudge 
that  to  be  law  which  has  not  been  so  enacted  by  the  legislature."  (White  v.  U.  S., 
191  U.  S.,  551,  552.)  File  28550-3,  J.  A.  G.,  May  12,  1915,  p.  1. 

Under  the  strict  rules  of  statutory  construction  a  statute  should  not  be  so  construed 
or  interpretated  as  to  have  the  effect  of  "enacting  law."  File  28087-14,  J.  A.  G., 
Dec.  14,  1916,  p.  3. 

74.  Same— "It  is  the  duty  of  the  legislature  to  enact  laws,  not  to  expound  or  interpret 

them."    (26  A.  &  E.  Ency.  of  Law,  030,  037.)    File  20254-78.  J.  A.  G.,  July  1, 1908,  p.  3. 
"The  department  was,  of  course,  not  making,  but~was  administering  the  statute." 
23  J.  A.  G.,  142. 

75.  Mandatory  statutes— The  question  whether  or  not  a  statute  is  mandatory  or  directory 

depends  upon  the  intention  of  the  legislature,  to  be  ascertained  from  a  consideration 
of  the  entire  act,  its  nature,  its  object,  and  the  consequences  that  would  result 
from  construing  it  one  way  or  another.  File  26260-1244,  J.  A.  G.,  Apr.  14,  1911. 
See  also  8  Op.  Atty.  Gen.,  112. 

76.  "  May  "—Use  of  "may"  in  statute.    See  File  28550-3,  J.  A.  G.,  May  12.  1915. 

77.  "  May"  and  "  shall  "—Under  certain  circumstances  the  words  "may"  and  "shall" 

have  an  identical  mandatory  meaning.    File  20253-114,  J.  A.  G.,  Aug.  19,  1910,  p.  12. 

"Shall"  will  be  construed  "may"  where  no  public  or  private  interest  is  impaired 
by  such  construction ;  but  where  the  public  are  interested,  or  where  the  public  or  third 
persons  have  a  claim  dejure  that  the  act  shall  be  done,  it  is  imperative,  and  will  be 
construed  to  mean  "must."  (City  of  Madison  v.  Daley,  58  Fed.  Rep.,  751,  753.)  File 
26260-1244,  J.  A.  G.,  Apr.  14,  1911,  p.  2. 

"'May'  should  be  construed  in  a  statute  to  mean  'shall'  wherever  the  rights  of 
third  persons  or  the  public  good  requires."  (48  Mo.,  390,  8  Am.  Rep.,  108.)  14 
J.  A.  G.,  62,  Nov.  3,  1908. 

"The  conclusion  to  be  deduced  from  the  authorities  is  that  where  power  is  given 
to  public  officers.  *  *  *  whenever  the  public  interest  or  individual  rights  call  for 
its  exercise,  the  language  used,  though  permissive  in  form,  is  In  fact  peremptory. 
What  they  are  empowered  to  do  for  a  third  person  the  law  requires  shall  be  done.  Tne 
power  is  given  not  for  their  benefit  but  for  his.  *  *  *  In  all  such  cases  it  is  held  that 
the  intent  of  the  legislature,  which  is  the  test,  was  not  to  devolve  a  mere  discretion, 
but  to  impose  a  positive  and  absolute  duty."  (71  U.  S.,  4  Wall.,  435;  113  Fed.,  232, 
237.)  14  J.  A.  G.,  62,  Nov.  3,  1908. 

"  Where  a  statute  declares  that  a  public  officer  or  public  body  'may'  have  power  to 
do  an  act  which  concerns  the  public  interests  or  tne  rights  of  third  persons,  'may' 
means  'shall,'  and  the  execution  of  the  power  may  be  insisted  on  as  a  duty."  (Sedg- 
Wick,  p.  439.)  14  J.  A.  G.,  62-63,  Nov.  3,  1908. 

Congress  provided  that  "the  Secretary  of  the  Navy  is  hereby  authorized"  to 
furnish  clothing  bounty  to  apprentices  upon  enlistment.  Question  considered  was 
"whether  that  language  is  mandatorv  or  permissive."  The  Attorney  General  said 
(25  Op.  Atty.  Gen.,  272):  "In  a  number  of  cases  decided  in  the  Federal  courts,  the 
word  'may,  which  is  practically  synonymous  with  the  word  'authorize,'  has  been 
held  to  be  mandatory  and  not  permissive  when  embodied  in  a  statute."  "The  general 
rule  is  that  where  Congress  confers  a  power  upon  an  executive  officer  which  involves 
the  rights  or  interests  of  private  individuals  or  the  general  public,  the  language  used 
by  Congress  is  considered  as  imposing  a  duty  rather  than  a  discretion."  "In  the  case 
of  the  Supervisors  v.  United  States  (4  Wall.,  435,  445),  in  which  'may,  if  deemed 
advisable,'  was  under  consideration,  the  court  said:  '  The  counsel  for  the  respondent 


STATUTORY   CONSTRUCTION   AND  INTERPRETATION.       603 

insists,  with  zeal  and  ability,  that  the  authority  thus  given  involves  no  duty;  that 
it  depends  for  its  exercise  wholly  upon  the  judgment  of  the  supervisors;  and  that 
judicial  action  can  not  control  the  discretion  with  which  that  statute  has  clothed 
them.  We  can  not  concur  hi  this  view  of  the  subject.'"  The  Attorney  General 
concluded:  "  In  my  opinion  the  language  used  by  Congress  in  the  act  here  under 
consideration  is  to  be  construed  as  imposing "  upon  the  Secretary  "an  imperative 
obligation  and  not  merely  discretionary  power."  14  J.  A.  G.,  62-63,  Nov.  3,  1908. 

78.  Motives  of  members  voting  for  act.    See  STATUTORY  CONSTRUCTION  AND  INTER- 

PRETATION, 84. 

79.  "  Must."    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  77. 

80.  "  NoscitUT  a  sociis."    See  WORDS  AND  PHRASES. 

81.  Object  of  construction — Is  to  ascertain  tho  legislative  intent.    See  STATUTORY 

CONSTRUCTION  AND  INTERPRETATION,  82,  83,  88. 

82.  Object  to  be  accomplished  by  the  statute— "A  construction  of  a  statute  which 

would  go  beyond  the  evil  intended  to  be  remedied  and  produce  apparently  unforeseen 
and  untoward  results  should  be  avoided."  (28  Op.  Atty.  Gen.,  78.)  "The  object 
to  be  accomplished  at  the  time  of  its  enactment  is  of  paramount  importance  in  giving 
effect  to  an  act."  (43  Ct.  Cls.,  7.)  File  26516-38,  J.  A.  G.,  Dec.  3,  1910,  p.  4.  See 
also  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  106. 

83.  Same— In  one  case  it  was  stated  by  the  Judge  Advocate  General:  "After  careful 

consideration  of  the  'object  and  purpose'  of  this  paragraph  of  the  act,  its  legislative 
history,  including  letters  on  the  subject  addressed  by  the  department  to  the  Com- 
mittees on  Naval  Affairs  of  the  House  and  Senate,  the  committee  hearings  thereon, 
the  debates  and  the  reports  of  the  committees  on  conference,  in  connection  with 
established  principles  of  statutory  interpretation  applicable  thereto,  I  am  of  opinion 
*  *  *."  File  28550--3,  J.  A.  G.,  May  12, 1915,  p.  1. 

84 .  Opinions—"  The  opinions  of  individual  legislators  as  to  the  object  and  effect  of  a  statute 

are  of  little  or  no  weight  on  questions  of  construction,  and  are  generally  inadmissible. 
Nor  may  the  intention  of  the  draftsman  nor  the  motives  of  members  who  voted  for 
the  act  be  taken  into  consideration  in  its  construction."  (26  A.  &  E.  Ency.  of  Law, 
638,  639.)  File  24482-34,  J.  A.  G.,  May  1,  1911,  p.  17. 

85.  "  Or  otherwise  "—The  words  "or  otherwise"  in  law,  when  used  as  a  general  phrase. 

following  an  enumeration  of  particulars,  are  commonly  interpreted  in  a  restricted 
sense,  as  referring  to  such  other  matters  as  are  kindred  to  the  classes  before  mentioned . 
This  phrase  when  used  as  above  should  receive  an  ejusdem  generis  interpretation. 
File  4924-435,  J.  A.  G.,  June  20, 1916.  See  also  EJUSDEJI  GENERIS. 

86.  Paramount  duty—"  The  paramount  duty  of  the  judicial  interpreter  is  to  put  upon  the 

language  of  the  legislature,  honestly  and  faithfully,  its  plain  and  rational  meaning, 
and  to  promote  its  object."  (Maxwell  on  the  Interpretation  of  Statutes,  2d  ed.,  p. 
318,  quoted  approvingly  in  U.  S.  v.  Lacher,  134  U.  S.,  624.)  File  26260-1392,  26260-«97, 
J.  A.  G.,  June  29, 1911,  p.  19. 

87.  Par!  materla.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  125, 126;  WORDS 

AND  PHRASES. 

88.  Penal  statutes— "'The  object  in  construing  penal,  as  well  as  other  statutes,  is  to 

ascertain  the  legislative  intent,'  as  was  said  by  the  Supreme  Court  of  the  United  States 
(U.  S.  v.  Hartwell,  6  Wall.,  385,  395)  with  reference  to  a  statute  defining  and  punishing 
embezzlement  by  public  officers. "  File  26260-1392,  26260-697,  J.  A.  G.,  June  29,  1911, 
p.  18.  See  also  STATUTES,  6;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  15, 
89-92. 

89.  Same— "Penal  statutes  aro  to  be  strictly  construed."    File  26260-1392,  26260-697, 

J.  A.  G.,  June  29,  1911,  p.  19. 

It  is  a  well  settled  rule  of  law  that  penal  statutes  and  fines  and  forfeitures  imposed 
pursuant  thereto  should  be  strictly  construed.  C.  M.  O.  17,  1910,  8. 

90.  Same— "But  though  penal  laws  aro  to  be  construed  strictly,  yet  the  intention  of  the 

legislature  must  govern  in  the  construction  of  penal  as  well  as  "other  statutes,  and  they 
are  not  to  be  construed  so  strictly  as  to  defeat  the  obvious  intention  of  the  legisla- 
ture." (U.  S.  v.  Wiltberger,  5  Wheat.,  76;  U.  S.  v.  Morris,  14  Pet.,  464;  Am.  Fur  Co. 
v.  U.  S..  92  Pet.,  358,  367.)  *  *  * 

"  To  the  same  effect  is  the  statement  of  Mr.  Sedgwick,  in  his  work  on  Statutory  and 
Constitutional  Law,  2d  ed.,  282:  '  The.  rule  that  statutes  of  this  class  are  to  be  construed 
strictly,  is  far  from  being  a  rigid  or  unbending  one:  or,rather,it  has  in  modern  times 
been  so  modified  and  explained  a\vay  as  to  mean  little  more  than  that  penal  pro- 
visions, like  all  others,  are  to  bo  fairly  construed  according  to  the  legislative  intent 
as  expressed  in  the  enactment;  the  courts  refusing,  on  the  one  hand,  to  extend  the 


604     STATUTORY  CONSTRUCTION   AND  INTERPRETATION. 

punishment  to  cases  which  are  not  clearly  embraced  in  them,  and,  on  the  other, 
equally  refusing  by  any  mere  verbal  nicety,  forced  construction,  or  equitable  inter- 
pretation to  exonerate  parties  plainly  within  their  scope.'  *  *  * 

"  And  the  reason  for  the  less  rigorous  application  of  the  rule  is  well  given  in  Maxwell 
on  the  Interpretation  of  Statutes,  2d  ed.,  p.  318,  thus: 

" '  The  rule  which  requires  that  penal  and  some  other  statutes  shall  be  construed 
strictly  was  more  rigorously  applied  in  former  times,  when  the  number  of  capital 
offenses  was  160  or  more;  when  it  was  still  punishable  with  death  to  cut  down  a 
cherry  tree  in  an  orchard,  or  to  be  seen  for  a  month  in  the  company  of  gipsies.  But 
it  has  lost  much  of  its  force  and  importance  in  recent  times,  since  it  has  become 
more  and  more  generally  recognized  that  the  paramount  duty  of  the  judicial  inter- 
preter is  to  put  upon  the  language  of  the  legislature,  honestly  and  faithfully,  its 
plain  and  rational  meaning,  and  to  promote  its  object.'"  (U.S.  v.  Lacher,  134 
U.  S.,  624,  construing  a  criminal  statute.)  File  26260-1392,  26260-697,  J.  A.  G.,  June 
29,  1911,  pp.  19-20. 

91.  Same-^In  construing  a  statute,  such  as  the  one  under  consideration,  which  is  sub- 

stantially a  statutory  penalty,  the  statute  must  receive  a  strict— that  is,  a  literal- 
construction."  (Tiffany  v.  National  Bank  of  Missouri,  18  Wall.,  410.) 

92.  Same — "The  statute  under  consideration  being  penal  in  its  nature  must  be  strictly 

construed,  which  means  in  effect  that  the  language  is  not  to  be  extended  so  as  to 
include  persons  or  things  not  clearly  within  its  terms."  (U.  S.  v.  Lacher,  134  U.  S.. 
624.)"  A  statute  "in  the  nature  of  a  penal  statute  *  *  *  must  be  construed 
strictly."  (20  Comp.  Dec.,  69.)  File  7657-398:1,  J.  A.  G., 

93.  Permanent  legislation— No  clause,  phrase,  or  section  of  an  appropriation  act  ought 

to  be  construed  as  permanent  legislation,  unless  such  words  are  used  therein  as  make 
that  purpose  clear.  See  File  24501-26,  July  11,  1911. 

94.  Same— "Hereafter."    See  " HEREAFTER. " 

95.  Permissive— "  It  has  also  been  said  that  statutes  which  clothe  a  public  body  or  officer 

with  power  to  perform  acts  which  concern  the  rights  of  individuals,  even  though 
the  language  of  such  statutes  is  permissive  merely,  will  be  construed  as  being  manda- 
tory." (36  Cyc.  1159.)  File  26260-1244,  J.  A.  G.,  Apr.  14, 1911,  p.  2. 

96.  Plain  and  unambiguous  language.    See  STATUTORY  CONSTRUCTION  AND  INTER- 

PRETATION, 62. 

97.  Prejudice  to  public  Interests.    See  STATUTORY  CONSTRUCTION  AND  INTERPRE- 

TATION, 46. 

98.  Presumption  that  legislature  acted  advisedly.    See  STATUTORY  CONSTRUCTION 

AND  INTERPRETATION,  124-127.    See  also  File  28550-3,  J.  A.  G.,  May  12,  1915,  p.  2. 

99.  Prior  enactments  on  same  subject— What  is  to  be  determined  is  the  will  of  the 

legislature,  and  that  will  as  expressed  in  the  latest  enactment  is  paramount;  but  on 
all  matters  in  which  the  will  of  the  latest  legislature  has  not  been  clearly  manifested 
that  of  all  former  legislatures  must  stand.  File  13707-38:9.  See  also  Wilcox  v.  U.  S. 
(12  Ct.  Ols.,  495,  502);  Mills  v.  Scott  (99  U.  S.,  25,  28). 

100.  Proceedings  In  Congress— "As  was  said  in  the  case  of  United  States  v.  Burr  (159 

U.  S.,  85),  if  the  ambiguity  were  only  caused  by  the  meaning  of  some  part  or  the 
other  of  the  law,  it  might  then  be  possible  to  refer  to  the  proceedings  in  Congress  for 
assistance  in  determining  the  proper  construction.  Of  course,  in  adopting  such  a 
method  we  are  not  at  literty  to  disregard  any  part  of  the  language  of  the  law  as  it 
was  passed."  File  26253-114,  J.  A.  G.,  Aug.  19,  1910.  p.  14. 

101.  Prohibitive  statutes.    See  File  26516-49,  J.  A.  G.,  June  13,  1911,  p.  5. 

102.  Prospective  operation — "In  the  construction  of  statutes  it  is  a  familiar  rule  that  a 

prospective  operation  is  to  be  given  in  every  instance  unless  the  legislative  intent  to 
the  contrary  is  expressed  in  clear  and  unambiguous  terms  or  the  intent  is  clearly 
implied  from  the  language  used.  Every  reasonable  doubt  should  be  resolved  against 
rather  than  in  favor  of  the  retroactive  operation  of  the  statute."  (Jasper  v.  U.  S., 
43  Ct.Cls.,371.  cuing  U.  S.  v.  Heth,3Cranch.  399,413;Chew  Heong  v.  U.S..112U.S., 
536,  559;  White  v.  U.  S.,  191  U.  S.,  545.)  File  17789-25,  Sec.  Navy,  Sept.  9,  1916. 

103.  Purpose  of !  Interpretation— "  The  main  purpose  of  interpretation  is  to  ascertain 

and  carry  into  effect  the  object  and  purpose  of  the  legislature  in  making  the  given 
law  as  expressed  in  the  language  used."  (White  v.  U.  S.,  191  U.  S.,  545,  552.)  File 
5252-66,  J.  A.  G.,  May  13,  1915,  p.  8. 

104.  Reading  Into  the  law  by  construction—"  The  department  is  without  authority 

to  read  into  the  law  by  construction  something  not  within  its  terms."  File  26260- 
3663:2,  Sec.  Navy,  Oct.  9,  1916. 


STATUTORY    CONSTRUCTION    AND    INTERPRETATION.      605 

105.  Reasons  for  enacting  the  law.    See  STATUTORY  CONSTRUCTION  AND  INTERPRE- 

TATION, 82,  100. 

106.  Reason  or  spirit  will  prevail  over  letter — The  rule  is  that  the  reason  or  spirit  of  a 

statute  will  prevail  over  its  letter;  "general  terms  may  be  restrained  by  the  spirit 
or  reason  ofthe  statute."  (36  Cyc.,  1109.)  File  26253-200:1,  J.  A.  G.,  Feb.  17, 1912, 
p.  8. 

The  court  in  Wilkes  v.  Dinsman  (7  How.  88)  "considered  the  spirit  and  reason 
of  the  law  hi  its  opinion  and  held  it  to  include  marines  because  in  the  body  of  the 
act  the  language  was  'any  person  enlisted  for  the  Navy*  and  not  'seamen,'  or  other 
term  which  would  necessarily  be  limited  to  the  Navy  proper."  File  5252-66,  J.  A. 
G..  May  13, 1915,  p.  2. 

"It  is  always  permissible  to  consider  the  purpose  and  the  spirit  of  the  law  and  the 
object  which  it  was  intended  to  accomplish  as  indicated  not  only  by  the  language 
used  in  the  statute,  but  by  other  recognized  aids  to  interpretation.''  File  5252-66, 
J.  A.  G.,  May  13,  1915,  p.  6. 

107.  Reenactment  of  words.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 

125-128. 

108.  Repeal— The  general  principle  to  be  applied  to  the  construction  of  acts  of  Parliament 

is  that  a  general  act  is  not  to  be  construed  to  repeal  a  previous  particular  act,  unless 
there  is  some  express  reference  to  the  previous  legislation  on  the  subject,  or  unless 
there  is  a  necessary  inconsistency  in  the  two  acts  standing  together.  (Thorpe  v. 
Adams,  L.  R.  6  C.  P.,  135.)  Approved  by  the  Supreme  Court  of  the  United  States 
in  Ex  parte  Crew  Dog  (109  U.  S.,  370),  and  finds  expression  in  the  well-established 
rule  ofstatutory  construction,  gcneralia  speciatibus  non  derogant.  File  4051-3,  J.  A. 
G.,  July  1, 1909,  p.  2.  See  also  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  115. 

109.  Repeal  by  implication— "  The  conclusion  that  a  statute  is  repealed  by  implication 

is  only  reached  where  there  is  irreconcilable  conflict,  and  when  the  two  statutes  can 
not  by  reasonable  construction  stand  together."  (21  Op.  Atty.  Gen.,  184;  24  Op. 
Atty.Gen.,  562;  25  Op.  Atty.  Gen.,  113.) 

"Implied  repeals  of  laws  are  not  favored,  and  whore  the  true  construction  of  the 
later  legislation  is  doubtful,  the  doubt  should  be  resolved  against  any  construction 
which  revolutionizes  existing  systems  of  administration."  (23  Op.  Atty.  Gen.,  411.) 

"It  is  a  fundamental  and  familiar  rule  that  a  repeal  by  implication  is  never  held 
to  take  place  unless  there  is  an  irreconcilable  repugnancy  between  the  earlier  and  later 
acts,  and  that  if  by  any  permissible  construction,  both  may  stand  and  be  enforced, 
there  is  no  such  repeal."  (29  Op.  Atty.  Gen.,  110.)  [File  28687-14,  J.  A.  G.,  Dec.  14, 
1916,  p.  3.] 

"Statutes  which  apparently  conflict  with  each  other  are  to  be  reconciled,  as  far 
as  may  be,  on  any  fair  hypothesis."  (Beals  v.  Hale,  4  How.,  37;  51.) 

"If  both  can  exist,  the  repeal  by  implication  will  not  be  adjudged."  (Johnson  v. 
Brown,  205  U.  S.,  321.) 

"Every  doubt  should  be  resolved  against  a  construction  which  would  work  an  im- 
plied repeal,  and  it  is  not  to  be  admitted  unless  the  implication  is  so  clear  as  to  be 
equivalent  to  an  explicit  declaration."  (Osborn  v.  Nicholson,  13  Wall.,  654,  662.) 
[File  28687-14,  J.  A.  G.,  Dec.  14, 1916,  p.  3.J 

"The  general  presumption  is  that  if  a  repeal  was  intended,  it  would  have  been 
expressly  declared;  and  such  is  the  usual  practice  of  legislation."  (U.  S.  v.  Clothes, 
Crabbe,  370,  28  Fed.  Cas.  No.  16,  563;  9  Op.  Atty.  Gen.,  47.) 

"Where  two  acts  are  in  apparent  conflict,  and  one  of  the  acts  is  general  and  the 
other  special,  the  rule  is  that  the  special  act  will  be  construed  as  an  exception  to  the 
provisions  of  the  general,  and  both  acts  thus  given  effect."  (36  Cyc.,  1151,  1152.) 
File  28687-1. 

The  rule  is  well  settled  that  repeals  by  implication  are  not  favored  and  will  never 
be  sustained  if  it  is  possible  to  give  the  legislation  a  different  interpretation.  File 
3973-106,  J.  A.  G.,  Feb.  8, 1915. 

110.  Retroactive  construction — "It  is  a  principle  which  has  always  been  held  sacred  in 

the  United  States,  that  laws  by  which  human  action  is  to  be  regulated,  looks  forward, 
not  backwards;  and  are  never  to  be  construed  retrospectively,  unless  the  language 
of  the  act  shall  render  such  construction  indispensable."  (Reynolds  v.  McArthur, 
2  Pet.,  434.)  File  7657-399:4,  Oct.,  1916.  See  also  STATUTORY  CONSTRUCTION  AND 
INTERPRETATION,  102. 


606   STATUTORY  CONSTRUCTION  AND  INTERPRETATION. 

111.  Same— "  Whereas  statutes  generally  are  not  to  be  construed  retroactively  unless  the 

intention  that  such  construction  be  given  them  is  very  apparent,  a  prospective  opera- 
tion is  to  be  given  to  a  statute  unless  the  legislative  intent  to  the  contrary  is  unam- 
biguously expressed  or  is  clearly  implied.  (Jasper  v.  U.  S.,  43  Ct.  Cls..  368.  and  cases 
there  cited;  19  Comp.  Dec.  487.)"  File  7657-399:4,  Oct.  1916. 

112.  Revision  of  statutes— In  a  revision  of  statutes  all  the  different  parts  must  be  construed 

together  with  a  view  to  harmonizing  them  if  possible,  and  giving  elfeet  to  each.  The 
different  sections  should  be  regarded,  not  as  prior  and  subsequent  acts,  but  as  si- 
multaneous expressions  of  the  legislative  will.  (36  Cyc.,  1167;  Groff  v.  Miller,  20 
App.  D.  C.,  353.)  16  J.  A.  G.,  73. 

113.  Several  statutes  relating  to  same  subject— They  are  all  to  be  considered  together 

and  9110  part  compared  with  another  in  the  construction  of  any  one  of  the  material 
provisions.  If  the  language  will  reasonably  admit  of  it  the  acts,  or  sections  in  this 
case,  are  to  be  construed  so  as  to  permit  both  to  stand  together  and  remain  in  full 
force  (Pollard  v.  Kibbee,  14  Pet.,  353, 366;  The  Strathairly,  124  U.  S.,  558.  579;  Nobles  v. 
Georgia,  168  U.  S.,  398,  404;  Cherokee  Intermarriage  Cases,  203  U.  S.,  76.)"  16  J.  A. 
G.,  72,  Nov.  2,  1911. 

114.  "Shall"  and  "may."    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION.  76,  77. 

115.  Special  and  general  provisions— To  the  extent  of  any  necessary  repugnance  between 

a  special  and  a  general  provision,  the  special  will  prevail  over  the  general.  And 
where  the  general  is  later,  the  special  will  be  construed  as  remaining  an  exception 
to  its  terms.  (30  Cyc.,  1151.)  16  J.  A.  G.,  73. 

"  It  is  *  *  *  one  of  the  best  settled  rules  of  construction  that  a  prior  specific 
statute  is  not  to  be  treated  as  repealed  by  a  later  general  law  unless  the  two  can  not 
possibly  be  construed  so  as  to  stand  together."  File  28G87-1,  J.  A.  G.,  Aug.  18,  1916, 
p.  3.  See  also  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  108. 

116.  Same — Where  one  statute  conferred  a  limited  jurisdiction  over  offenses  eenerally  and 

another  a  larger  jurisdiction  as  to  certain  specified  ones,  the  two  could  stand  together, 
one  as  the  law  of  the  general  subject  and  the  other  the  law  of  the  particular  offense. 
(State  v.  Stanley,  82  Vt.,  37.)  16  J.  A.  G.,  73. 

117.  Same-^That  the  details  of  one  part  may  contain  regulations  restricting  the  extent  of 

general  expressions  used  in  another  part  of  the  same  act,  are  among  the  plain  rules 
laid  down  by  common  sense  for  the  exposition  of  statutes.  (2  Cranch,  52.)  File 
11130-2b,  J.  A.  G.,  July  31, 1909,  p.  5. 

118.  Spirit  and  purpose  of  statute — Should  not  be  lost  sight  of  in  a  strict  adherence  to 

its  letter.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  106. 

119.  Stare  declsis.   See  STARE  DECISIS;  STATUTORY  CONSTRUCTION  AND  INTERPRETATION, 

66;  WORDS  AND  PHRASES. 

120.  Strict  construction.   See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  15. 

121.  Title  of  a  statute— The  title  of  a  statute  althoughnot  properly  a  part  of  the  law  may  be 

resorted  to  in  case  of  doubt  as  a  source  of  information  in  interprecing  language  used 
in  the  act.  File  5621,  Nov.  17, 1906.  See  also  File  5252-66,  J.  A.  G.,  May  13,  1915,  p.  7. 

122.  Uniform  construction.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  13. 

123.  Whole,  law  must  be  construed  as  a  whole—"  We  are  not  at  liberty  to  construe  any 

statute  so  as  to  deny  effect  to  any  part  of  its  language.  _  It  is  a  cardinal  rule  of  statutory 
construction  that  significance  and  effect  shall,  if  possible,  be  accorded  to  every  word. 
As  early  as  in  Bacon's  Abridgment  it  was  said  that 'a  statute  ought,  upon  the  whole, 
to  be  so  construed  that,  if  it  can  be  prevented,  no  clause,  sentence,  or  word  shall  be 
superfluous,  void,  or  insignificant';  this  rule  has  been  repeated  innumerable  times." 
(Washington  Market  Co.  v.  Hoffman,  101  U.  S.,  115.)  File  26253-114,  J.  A.  G.,  Aug. 
19,  1910,  p.  13. 

"  Where  possible  to  do  so  effect  must  be  given  to  all  the  provisions  of  a  law."  File 
28687-9,  J.  A.  G.,  Oct.,  1916. 

124.  Words,  meanings  of—"  Where  the  language  of  a  statute  is  unambiguous  the  popular, 

or  ordinary,  meanings  of  words  should  be  employed."  File  5252-27,  J.  A.  G.,  June  23, 
1909,  p.  2. 

"  Authority  is  found  in  decisions  of  the  Supreme  Court  for  giving  a  different  meaning 
to  the  same  word  in  different  parts  of  a  statute  where  such  appears  to  have  been  the 
legislative  intent.  (See  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  19.)"  File  26521-144:1, 
Sec.  Navy,  July  10,  1916,  p.  4. 

125.  Words  reenacted— Words  in  a  subsequent  act  are  to  be  given  the  recognized  meaning 

they  had  in  a  former  act  in  pari  mattria  in  the  absence  of  anything  to  show  a  contrary 
intent,  and  judicial  decisions  construing  one  of  such  acts  form  a  sound  rule  of  con- 
struction for  the  other.  (A.  &  E.  Ency.  Law,  vol.  26,  p.  611.)  File  26254-60,  J.  A.  G., 
July  1, 1908,  p.  2. 


STATUTORY  CONSTRUCTION  AND    INTERPRETATION.      607 

In  the  absence  of  any  indication  of  a  contrary  intent,  must  be  given  the  same  con- 
struction as  they  received  in  the  former  act.  File  26521-144 :1,  Sec.  Navy,  July  10, 1916, 
p.  4. 

126.  Same — "If  it  can  be  gathered  from  a  subsequent  statute  in  pan  matfria  what  meaning 
the  legislature  attached  to  the  words  of  a  former  statute,  they  will  amount  to  a  legis- 
lative declaration  of  its  meaning,  and  will  govern  the  construction  of  the  first  statute." 
Ffle  26280-61. 

127. — Same — Congress  is  presumed  to  have  known  what  construction  has  been  placed  upon 
language  used  by  it  in  a  statute  and  when  the  same  language  is  used  again  in  a  sub- 
sequent statute  on  the  same  object,  without  any  indication  of  a  contrary  intent, 
it  should  be  given  the  same  construction  as  it  received  in  the  former  act.  (18  Wall., 
553,  584.)  This  rule  applies  to  language  which  has  been  construed  in  decisions  of 
the  Supreme  Court  and  the  Court  of  Claims  (95  U.S.,  416),  and  also  to  the  construction 
placed  upon  a  law  in  practice  by  the  proper  administrative  officers.  See  21  Op.  Atty. 
Gen.,  410,  where  the  Attorney  General  said  in  part: 

"  The  weight  to  be  given  to  a  departmental  practice  is  greatly  increased  when  Con- 
gress, in  reenacting  the  law,  fails  to  indicate  in  any  way  its  disapproval  of  the  settled 
construction,  to  which  it  is  thus  regarded  as  giving  an  implied  approval.  (18  Opin., 
532;  20  Opin.,  721;  2  Comp.  Dec.,  100.)  The  opinions  just  cited  are  those  of  executive 
officers  only  and  the  first  of  them  has  been  referred  to  with  apparent  approval  by  the 
,  Supreme  Court."  File  3980-1075,  J.  A.  G.,  Apr.  9,  1915. 

128.  Same— "The  construction  placed  upon  this  statute  is  presumed  to  have  been  known 
to  Congress  and  adopted  by  that  body  in  its  enactment  of  the  Navy  law  in  almost 
the  identical  language  with  the  prior  Army  law  on  the  same  subject  without  any 
indication  of  a  contrary  intent,  and  it  should  be  given  the  same  construction  as  it 
received  in  the  former  act.  (Sewing  Machine  Co's  case,  18  Wall.,  553;  21  Op.  Atty. 
Gen.,  339, 352, 410;  15  Op.  Atty.  Gen.,  646;  Valk  v.  V.  S.,  28 Ct.  Cls.,  241;  Jonas  v.  U.  S., 
50  Ct.  Cls.,  281;  U.  S.  v.  Hermanos,  209  U.  S.,  337;  U.  S. «;.  Falk,  204  U.  S.,  143.)"  File 
7657-399:4,  Oct.,  1916. 

129.  Same — There  is  always  a  presumption  that  the  legislature  in  enacting  a  statute  is 

familiar  with  the  provisions  of  existing  law.  File  26251-169,  J.  A.  G.,  Nov.  28, 1916, 
p.  8. 

130.  Same — Congress  is  presumed  to  know  what  construction  has  been  placed  on  language 

used  by  it  in  a  statute,  and  when  the  same  language  is  used  again,  in  a  subsequent 
statute  on  the  same  subject,  without  any  indication  of  a  contrary  intent,  it  should  be 
given  the  same  construction  as  it  received  in  the  former  act.  (Sewing  Machine  Co.'s 
case,  18  Wall.  553,  584.)  File  26510-1022:4,  J.  A.  G.,  Dec,,  1916. 

STATUTORY  INTENT.    See  INTENT,  50. 
STATUTORY  SENTENCES. 

1.  Conform  to— It  is  a  general  rule,  where  the  punishment  for  a  crime  is  fixed  by  statute 

the  punishment  inflicted  must  conform  thereto,  and  a  judgment  which  does  not  so 
conform  is  erroneous,  and  this  whether  the  crime  is  a  statutory  one  or  a  common-law 
offense  for  which  the  punishment  has  been  changed  by  statute.  According  to  the 
prevailing  doctrine,  this  is  so  though  the  departure  from  the  provisions  of  the  statute 
is  a  mitigation  of  the  prescribed  penalty.  C.  M.  O.  21, 1910, 17;  1, 1911, 3. 

2.  Deck  courts.    See  DECK  COURTS,  51, 56.    See  also  STATUTORY  SENTENCES,  4,  5. 

3.  Mandatory — In  all  cases  where  the  statute  has  designated  a  penalty  for  a  particular 

offense,  none  other  than  that  particular  penalty  may  be  imposed,  and  the  court  must 
pronounce  the  sentence  which  the  law  requires  whenever  the  fact  is  proved.  (R-814.) 

4.  Summary  courts-martial— And  deck  courts  can  not  legally  impose  sentences  which 

are  not  specifically  provided  for  by  statute.    C.  M.  O.  2,  1912,  4-11;  33,  1914,  4. 

5.  Same — The  Cyclopedia  of  Law  and  Procedure  (v.  12,  p.  783),  under  the  subject  of  erro- 

neous sentences,  after  discussing  various  forms  of  error,  states  that  "other  cases  hold 
that  any  departure  in  the  sentence  from  th«  express  terms  of  the  statute,  whether  as 
to  the  form  or  the  extent  of  the  punishment,  is  error;  and  such  is  the  uniform  rule  in 
the  Federal  courts." 

A  number  of  State,  Federal,  and  English  cases  are  cited  in  support  of  the  foregoing 
statement,  from  which  cases  the  following  extracts  may  be  given: 

In  the  case  of  In  re  Johnson  (46  Fed.  Rep.,  477,  481)  the  petitioner  sought  release 
on  a  writ  of  habeas  corpus,  and  alleged,  among  other  things,  an  erroneous  sentence. 
The  statutory  punishment  for  the  offense— perjury— was  (sec.  5392,  R.  S.): 

"A  fine  of  not  more  than  $2,000,  and  by  imprisonment  at  hard  labor,  not  more 
than  five  years." 

60756°— 17 39 


COS  STATUTORY  SENTENCES. 

The  sentence  was  for  six  months  and  without  hard  labor,  and  with  respect  to  this 
matter  the  court  said: 

"It  was  held  by  the  Supreme  Court  in  Ex  parte  Karstendick  (93  U.  S.,  396)  that 
in  cases  where  the  statute  makes  hard  labor  a  part  of  the  punishment,  it  is  imperative 
upon  the  court  to  include  that  in  the  sentence.  "*  *  *  Here  hard  labor  was  not 
made  a  part  of  the  sentence,  though  expressly  required  by  the  statute."  There  was 
another  error  in  the  sentence  which,  however,  is  not  material  here,  and  upon  tha 
whole  matter  the  court  concluded  as  follows: 

"  It  is  impossible  to  escape  the  conclusion  that  the  district  court  exceeded  its  au- 
thority in  sentencing  the  prisoner  to  the  reformatory  prison  for  six  months  only, 
without  hard  labor,  and  that  she  is  entitled  to  be  discharged  from  imprisonment 
under  the  sentence." 

The  next  case  is  that  of  Harman  v.  Unite/1  States  (50  Fed.  Rep.,  921).  In  that  case 
the  defendant  was  convicted  and  sentenced  to  "be  imprisoned  in  the  Kansas  StaU 
penitentiary  for  five  years  and  that  he  pay  a  fine  of  $300." 

With  respect  to  this  sentence  the  court  said  (»'&.,  922) : 

"The  act  of  Congress  provides  that  persons  convicted  of  its  violation  'shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  for  each  and  every  offense  be  fined  not 
less  than  $100  nor  more  than  $5,000  or  imprisonment  at  hard  labor  not  less  than 
one  year  nor  more  than  10  years,  or  both,  at  the  discretion  of  the  court.'  It  will  be 
observed  that  where  the  punishment,  or  any  part  of  it,  is  imprisonment,  it  musCTse  'at 
hard  labor.'  The  plaintiff  in  error  was  sentenced  'to  be  imprisoned  in  the  Kansas 
State  penitentiary  for  five  years, '  and  hard  labor  is  not  made  a  part  of  the  punishment, 
as  the  statute  requires  snail  be  done,  where  imprisonment  forms  any  part  of  the 
sentence.  When  the  statute  makes  hard  labor  a  part  of  the  punishment,  it  is  im- 
perative upon  the  court  to  include  that  in  its  sentence.  *  *  *  In  the  courts  of 
the  United  States  the  rule  is  that  a  judgment  in  a  criminal  case  must  conform  strictly 
to  the  statute,  and  that  any  variations  from  its  provisions,  either  in  the  character 
or  extent  of  the  punishment  inflicted,  renders  the  judgment  absolutely  void." 

In  Woodruff  v.  United  States  (58  Fed.  Rep.,  766,  767)  the  court  said: 

"It  will  be  observed  that  the  act  under  which  the  defendant  was  indicted  declares 
that  one  convicted  of  the  offense  therein  charged  shall '  be  imprisoned  for  not  less  than 
six  months  nor  more  than  10  years,  and  be  fined  in  a  sum  equal  to  the  amount  em- 
bezzled.' The  sentence  in  this  case  was  one  of  imprisonment  only,  and  not  impris- 
onment and  fine,  as  required  by  the  statute.  In  the  courts  of  "the  United  States 
the  rule  is  well  settled  that  a  judgment  in  a  criminal  case  must  conform  to  the  require- 
ments of  the  statute,  and  that  any  variation  therefrom,  either  in  the  character  or 
extent  of  the  punishment  inflicted,  avoids  the  judgment." 

The  case  of  United  States  v.  Harman  (68. Fed.  Rep.,  472)  discloses  the  further  pro- 
ceedings, taken  in  that  case  in  accordance  with  law,  after  the  case  had  been  remanded 
by  the  circuit  court  in  Harman  v.  United  States  (supra).  The  lower  court  pronounced 
sentence  as  follows: 

"That  he  be  imprisoned,  at  hard  labor,  in  the  penitentiary  of  the  State  of  Kansas 
for  one  year  and  one  day  from  this  date." 

It  will  be  seen  that  the  court  in  resentencing  the  defendant  was  careful  to  include 
the  requirement  that  the  confinement  should  be  performed  at  hard  labor,  as  the  statute 
required. 

The  foregoing  cases  were  such  as  involved  the  omission  of  a  material  part  of  the 
lawful  sentence,  but  the  case  of  In  re  Mills  (135  U.  S.,  263)  is  one  in  which  the  sentence 
imposed  included  more  than  could  lawfully  be  adjudged.  In  that  case  the  accused 
was  indicted  under  two  different  statutes  of  the  United  States,  pleaded  guilty  to  both 
offenses,  and  was  sentenced  in  one  case  "to  be  prisoned  in  the  Ohio  State  prison,  at 
Columbus,  for  the  term  and  period  of  one  >ear,  and  pay  to  the  United  States  a  fine 
of  one  hundred  dollars,  and  its  costs  expended." 

In  the  other  case  it  was  adjudged  that  the  accused  "bo  imprisoned  in  the  same 
penitentiary  for  the  period  of  six  months,  and  pay  to  the  Government  a  fine  of  $50, 
together  with  its  costs:  also,  that  this  term  of  imprisonment  commence  and  date 
from  the  expiration  of  the  term  of  one  year,  for  which  he  was  sentenced  in  the  other 
case." 

After  reviewing  the  statutes  bearing  upon  the  matter  the  court  said  (ibid,  270): 

"A  sentence  simply  of  'imprisonment,'  in  the  case  of  a  person  convicted  of  an 
offense  against  the  United,  States — where  the  statute  prescribing  the  punishment 
does  not  require  that  the  a?^usnd  shall  be  confined  in  a  penitentiary — can  not  be 
executed  by  confinement  in  a  penitentiary,  except'in  cases  in  which  the  sentence  is 


STATUTORY  SENTENCES.  609 

'for  a  period  longer  than  one  year.'  In  neither  of  the  cases  against  the  accused  was 
he  sentenced  to  imprisonment  for  a  period  longer  than  one  year.  In  one  case,  the  im- 
prisonment was  'for  the  term  and  period  of  one  year';  in  the  other,  'for  the  term  and 
period  of  six  months.'  There  is  consequently  no  escape  from  the  conclusion  that  the 
judgment  of  the  court  sentencing  the  petitioner  to  imprisonment  in  a  penitentiary, 
in  one  case  for  a  year  and  in  the  other  for  six  months,  was  in  violation  of  the  statutes 
of  the  United  States.  The  court  below  was  without  jurisdiction  to  pass  any  such 
sentences,  and  the  orders  directing  the  sentences  of  imprisonment  to  be  executed  in 
a  penitentiary  are  void.  This  is  not  a  case  of  mere  error,  but  one  in  which  the  court 
below  transcended  its  powers." 

In  Ex  parte  Lange  (18  Wall.,  163)  the  petitioner  was  indicted  for  certain  offenses 
against  the  Post  Oifice  Department;  he  was  found  guilty  and  the  punishment  for 
his  offense  as  provided  by  statute  was  'imprisonment  for  not  more  than  one  year 
or  a  fine  of  not  less  than  $10  nor  more  than  $200."  The  petitioner,  under  such  con- 
viction, was  sentenced  "to  one  year's  imprisonment  and  to  pay  t200  fine."  Later, 
at  the  same  term  of  court  and  the  same  judge  presiding,  the  prisoner  was  brought 
before  the  court  on  a  writ  of  habeas  corpus  and  an  order  was  rendered  vacating  the 
former  judgment  and  the  prisoner  was  again  sentenced  to  one  year's  imprisonment 
from  that  date. 

The  petitioner  sued  out  a  writ  of  habeas  corpus,  alleging  that  he  was  unlawfully 
imprisoned.  At  the  hearing  the  writ  was  discharged  and  Lange  was  remanded:, 
whereupon  he  sued  out  a  petition  for  writs  of  habeas  corpus  and  certiorari  in  the 
Supreme  Court.  In  the  court's  opinion  the  cases  were  reviewed  at  length  and  it 
held,  quoting  from  the  syllabus: 

"When  a  court  has  imposed  fine  and  imprisonment,  where  the  statute  only  con- 
ferred power  to  punish  by  fine  or  imprisonment,  and  the  fine  has  been  paid,  it  can 
not,  even  during  the  same  term,  modify  the  judgment  by  imposing  imprisonment 
instead  of  the  former  sentence." 

The  court  said  (ibid.,  176): 

"We  are  of  opinion  that  when  the  prisoner,  as  in  this  case,  by  reason  of  a  valid 
judgment,  had  fully  suffered  one  of  the  alternative  punishments  to  which  alone  the 
law  subjected  him,  the  power  of  the  court  to  punish  further  was  gone.  That  the 
principle  we  have  discussed  then  interposed  its  shield  and  forbid  that  he  should 
be  punished  again  for  that  offense.  The  record  of  the  court's  proceedings,  at  the 
moment  the  second  sentence  was  rendered,  showed  that  in  that  very  case  and  for  that 
very  offense  the  prisoner  had  fully  performed,  completed,  and  endured  one  of  the 
alternative  punishments  which  the  law  prescribed  for  that  offense  and  had  suffered 
five  days'  imprisonment  on  account  of  the  other.  It  thus  showed  the  court  that  its 
power  to  punish  for  that  offense  was  at  an  end.  Unless  the  whole  doctrine  of  our 
system  of  jurisprudence,  both  of  the  Constitution  and  the  common  law,  for  the  pro- 
tection of  personal  rights  in  that  regard  are  a  nullity,  the  authority  of  the  court  to 
punish  the  prisoner  was  gone.  The  power  was  exhausted;  its  further  exercise  was 
prohibited.  It  was  error,  but  it  was  error  because  the  power  to  render  any  further 
judgment  did  not  exist." 

In  the  case  of  In  re  Bridgeon  (57  Fed.,  200)  the  petitioner  was  indicted  for  horse 
stealing  in  Indian  Territory.  He  was  tried,  convicted,  and  sentenced  "to  be  impris- 
oned in  the  penitentiary  at  Columbus,  Ohio,  at  hard  labor  for  the  term  of  five  years 
and  to  pay  the  cost  of  prosecution." 

The  statute  applicable  in  that  case  provided  that  any  person  convicted  of  horse 
stealing  in  the  said  Territory  should  be  punished  "by  a  fine  of  not  more  than  $1,000 
or  by  imprisonment  not  more  than  15  years,  or  by  both  such  fine  and  imprisonment 
at  the  discretion  of  the  court." 

It  will  be  noted  that  the  statute  here  does  not  provide  for  imprisonment  at  hard 
labor  and  that  the  sentence  was  "imprisonment  at  hard  labor  for  five  years,"  while 
the  statute  provides  for  "imprisonment  not  more  than  15  years."  Li  granting  a 
writ  of  habeas  corpus  the  court  said: 

"The  general  rule,  as  stated  by  Justice  Field  In  re  Graham  (138  U.  S.,  462;  11  Sup. 
Ct.  Rep.,  363),  is  'that  a  judgment  rendered  by  a  court  in  a  criminal  case  must  con- 
form strictly  to  the  statute,  and  that  any  variation  from  its  provisions,  either  in  the 
character  or  the  extent  of  punishment  inflicted,  renders  the  judgment  absolutely 
void.'  Accordingly,  it  was  held  in  Harman  v.  United  States  (50  Fed.  Rep.,  921) 
that  where  the  penalty  provided  by  a  statute  was  imprisonment  at  hard  labor  and 


610  STATUTORY    SENTENCES. 

the  sentence  was  imprisonment,  hard  labor  not  being  made  part  of  the  punishment, 
the  sentence  was  void.  (See  also  Ex  parte  Karstendick,  93  u.  S.,  396;  In  re  Mills, 
135  U.  S.,  263, 10  Sup.  Ct.  Rep.,  762;  and  In  re  Johnson,  46  Fed.  Rep.,  477.)" 

The  last  several  cases  as  stated  above  are  such  as  involve  punishment  in  excess  of 
that  authorized  to  be  adjudged. 

In  Whitworth  v.  United  States  (114  Fed.  Rep.,  30?,  304)  the  court  said: 

"  The  penalty  prescribed  by  section  4046,  Revised  Statutes,  for  the  commission  of 
the  crime  charged  in  the  first  count  of  the  indictment  was  that  the  culprit  should  'be 
imprisoned  for  not  less  than  6  months  nor  more  than  10  years  and  be  fined  in  a  sum 
equal  to  the  amount  embezzled.'  The  judgment  against  the  defendant  for  this 
offense  was  that  he  should  be  imprisoned  for  three  years,  that  he  should  pay  a  fine 
equal  to  the  amount  embezzled  and  also  the  cost  of  the  prosecution  of  this  case,and 
that  he  should  stand  committed  until  the  fine  and  costs  were  paid.  This  judgment 
was  erroneous.  The  statutes  gave  to  the  court  below  no  power  to  add  to  the  fine 
prescribed  by  the  act  of  Congress  the  cost  of  the  prosecution  of  the  case.  .  In  many 
instances  where,  as  in  the  case  at  bar,  the  amount  embezzled  was  small  the  costs 
would  far  exceed  the  amount  of  the  fine  fixed  by  law.  In  the  national  courts  a  judg- 
ment in  a  criminal  case  must  conform  strictly  to  the  act  of  Congress  which  authorizes 
it.  Any  departure  from  the  statute  in  the  extent  or  character  of  the  punishment 
adjudged  constitutes  an  error  which  is  fatal  to  the  judgment."  (Citing  cases.) 

(See  also  In  re  Christian,  82  Fed  Rep.,  199;  Gardes  v.  United  States,  87  Fed.  Rep., 
172;  Haynes  v.  United  States,  101  Fed.  Rep.,  817;  Jackson  v.  United  States,  102  Fed. 
Rep.,  473;  In  ro  Bonner,  151  U.  S.,  242.) 

The  following  decisions  of  the  State  courts  also  bear  upon  the  subject: 

On  a  conviction  of  grand  larceny,  or  knowingly  receiving  stolen  goods  of  value 
greater  than  $100  (Rev.  Code,  sees.  3706,  3710),  the  court  has  no  authority  to  sentence 
the  prisoner  to  imprisonment  in  the  county  jail,  since  the  statute  only  prescribes 
imprisonment  in  the  penitentiary.  (De  Bardelaben  v.  State,  50  Ala..  179.) 

Under  an  ordinance  providing  that  any  person  carrying  concealed  weapons  shall 
be  fined  or  imprisoned  in  the  city  prison,  or  both  fined  and  imprisoned,  a  judgment 
that  an  offender  pay  a  fine,  and,  in  case  of  its  nonpayment,  be  imprisoned  in  the 
county  jail,  is  void  as  to  the  imprisonment,  as  the  ordinance  does  not  authorize 
imprisonment  in  the  county  jail.  In  re  Sylvester,  81  Cal.,  199;  22  Pac.) 

A  municipal  ordinance  which  provides  that  a  person  convicted  of  a  certain  offense 
shall  be  fined  not  exceeding  $500,  and  may  be  imprisoned  for  a  period  not  exceeding 
60  days,  or  both,  does  not  authorize  a  sentence  to  "pay  a  fine  of  $100,  or  perform  60 
days'  work  on  the  public  streets"  of  the  city. 

The  latter  clause  of  the  sentence  is  not  authorized  by  the  imprisonment  clause  of 
such  ordinance,  nor  by  an  ordinance  authorizing  the  major  or  president  of  the 
municipality  to  commit  to  the  city  prison  or  workhouse  or  place  of  correction,  for  a 
period  to  be  determined  by  such  mayor  or  president,  but  not  to  exceed  60  days,  any 
convict  failing  to  pay  a  fine,  penalty,  or  forfeiture  imposed  under  any  city  ordinance. 
(Ex  parte  Martini,  23  Fla.,  343;  2  South.,  689.) 

Under  Revised  Statutes,  1879,  section  1262,  which  fixes  the  punishment  at  imprison- 
ment  in  the  penitentiary  for  a  period  not  exceeding  10  years,  a  defendant  can  not  be 
awarded  a  less  degree  of  punishment  than  that  of  imprisonment  in  the  penitentiary. 
(State  v.  Jones,  86  Mo.,  623.) 

Jails  and  workhouses  are,  and  in  the  State  legislation  are  treated  as,  entirely  dis- 
tinct in  their  origin,  object,  and  government.  Therefore,  authority  to  a  justice  of 
the  peace  to  commit  to  the  workhouse  will  not  authorize  a  committal  to  the  common 
jail.  (State  v.  Ellis.  26  N.  J.  Law  (2  Dutch.),  219.) 

Within  the  act  June  10,  1879,  "to  prescribe,  apprehend,  and  punish  disorderly 
persons,"  sentence  to  imprisonment  in  the  county  jail  is  illegal  and  void,  for  the  statute 
provides  only  for  imprisonment  in  the  workhouse.  (Fairbanks  v.  Sheridan,  43  N.  J. 
Law  (14  Vroom),  4840 

Where  the  statutory  penalty  for  murder  in  the  first  degree  is  death,  and  the  Jury 
return  a  verdict  of  guilty,  the  trial  court  has  no  power  to  pass  sentence  of  imprison- 
ment. (Territory  v.  Griego,  42  Pac.,  81— N.  Mex.) 

Where  a  new  offense  is  created  by  statute,  and  a  penalty  provided  for  it,  no  other 
punishment  can  be  imposed.  (Renwick  v.  Morris,  7  Hill,  575 — N.  Y.) 

Acts  1885,  chapter  248,  providing  that  one  convicted  of  seduction  xinder  promise 
of  marriage  "shall  be  fined  or  imprisoned,"  at  the  discretion  of  the  court,  does  not 
authorize  the  imposition  of  both  fine  and  imprisonment.  (State  v.  Crowell,  116 
N.  C.,  1052;  21  S.  E.,  502.) 


STATUTORY  SENTENCES.  611 

Where  the  statute  provides  for  imprisonment  and  fine,  or  for  imprisonment  with- 
out fine,  fine  without  imprisonment  is  not  authorized.  (Johnson  v.  State,  18  Tex. 
App.,  7.) 

A  sentence,  different  from  that  intended  by  statute,  is  error,  even  if  less  severe 
than  the  sentence  prescribed.  (Haney  v.  State,  5  Wis.,  529.) 

Under  constitution,  1868,  article  1,  section  19,  which  limits  the  jurisdiction  of  justices 
in  criminal  cases  to  offenses  in  which  the  punishment  does  not  exceed  a  fine  of  $100, 
or  "imprisonment "  for  30  days;  and  act  December  24, 1892  (21  Stat.  L.,  p.  93),  which 
limits  the  punishment  for  the  offense  of  carrying  a  concealed  deadly  weapon  to  a  fine 
not  exceeding  $100,  or  "imprisonment"  not  exceeding  30  days — a  trial  justice  has  no 
power  to  require  a  person  convicted  of  such  offense  to  be  imprisoned  and  perform 
hard  labor  for  30  days.  (State  v.  Williams,  40  S.  C..  373;  19  S.  E.,  5.) 

Under  General  Statutes,  section  4697,  providing  that  one  guilty  of  a  misdemeanor 
not  enumerated  by  statute  shall  be  punished  by  imprisonment,  a  court  can  not 
require  a  defendant  guilty  of  forcible  entry  to  give  bond  to  keep  the  peace  and  in 
default  thereof  to  adjudge  that  he  be  imprisoned.  (Ex  parte  Webb,  51  Pac.,  1027; 
24  Nov.,  238.)  C.  M.  O.  2,  1912,  5-11. 

STEALING.    See  THEFT. 

STEALING  AND  UNLAWFULLY  SELLING  PROPERTY  OF  THE  UNITED 
STATES,  FURNISHED  FOR  THE  NAVAL  SERVICE  THEREOF,  IN  VIO- 
LATION OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOVERNMENT 
OF  THE  NAVY. 

1.  Warrant  officers— Charged  with.    C.  M.  O.  34,  1909;  35,  1909. 

STEALING  PROPERTY  OF  THE  UNITED  STATES  FURNISHED  AND  IN- 
TENDED FOR  THE  NAVAL  SERVICE  THEREOF. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  25, 1914,  3. 

STEERAGE  STEWARD. 

1.  General  court-martial— Tried  by.    C.  M.  O.  42,  1883. 

STENOGRAPHERS. 

1.  Oaths— Stenographer  should  be  sworn  at  the  proper  time.    C.  M.  0. 21, 1910, 9;  23, 1910, 7. 

2.  Statement  ot  accused.    See  STATEMENT  OK  ACCUSED,  5. 

STEPSON. 

1.  Stepfather — Stepson  does  not  necessarily  take  the  name  of  stepfather.    See  NAME, 
CHANGE  OF,  11. 15. 

STOLEN  OR  PAWNED  PROPERTY  OF  THE  UNITED  STATES. 

1.  Recovery  of.    See  PUBLIC  PROPERTY,  7. 

STORAGE  BATTERIES  OF  SUBMARINES.    C.  M.  O.  41, 1915. 
STRAGGLERS.    See  C.  M.  O.  153,  1897,  2;  10, 1907;  37,  1909. 

STRIKE  OUT. 

1.  Charges  and  specifications— By  court.    See  CHARGES  AND  SPECIFCATIONS,  95. 

STRIKING  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Officer  charged  with.    C.  M.  O.  29,  1890. 

STRIKING  IS  AN  ASSAULT.    See  ASSAULT,  26. 

STUBBORN  COURT.  C.  M.  O.  104,  1897,  5-6.  See  also  CRITICISM  OF  COURTS-MARTIAL, 
35, 43. 

STUDENT  FLYERS.    See  File  28687-9,  J.  A.  G.,  Oct.,  1916. 

SUBIG  BAY  NAVAL  RESERVATION.    See  JURISDICTION,  94-96;  APPEALS,  20. 

SUBMARINES. 

1.  Death  gratuity — Paid  when  submarine  submerged  for  two  and  one-half  months.    See 

DEATH  GRATUITY,  24. 

2.  Inspection  of — Officer  tried  by  general  court-martial  for  neglect  of  duty.    C.  M.  O. 

41,  1915. 

3.  Precautions— Against  accident  in  handling  gasoline.    C.  M.  O.  26,  1908. 


612  SUMMARY  COURTS-MARTIAL. 

"SUBMERGED  AND  UNMARKED  WRECK."    C.  M.  O.  29, 1916. 

SUBPOENAS.    See  also  SUMMONS. 

1.  Civil  authorities — Service  or  subpoenas  by  civil  authorities  on  persons  in  the 

service.    See  GENERAL  ORDER  No.  121.  Sept.  17,  1914,  23. 

2.  Civil  court — Officer  arrested  by  civil  authorities  for  disregarding  subpoena.    Tri«4 

by  gsnaral  court-martial  on  charge  of  "Scandalous  conduct  tending  to  the  destructiom 
of  good  morals."  C.  M.  O.  24,  1883. 

3.  Marshall,  United  States— Obligation  of  United  States  marshal  to  serve  subpoenM 

for  witnesses  bafore  general  court-martial  on  request  of  judge  advocate.  Department 
of  Justice  complied  with  request  an!  Navy  Department  agreed  to  pay  any  expenses 
involved,  fees,  etc.  File  26251-12193:3,  Aug.  16,  1916. 

SUFFERING  A  PRISONER  TO  ESCAPE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  50, 1889. 

SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BE  HAZARDED,  IN  VIOLATION 
OF  SECTION  11,  AUTICLE  8,  OF  THE  ARTICLES  FOR  THE  GOVERN- 
MENT OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  76,  1895. 

SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BE  RUN  UPON  A  SHOAL  AN» 
HAZARDED. 

1.  Officer— Charged  with.    C.  M.  O.  80,  1905;  82,  1905. 

SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BE  STRANDED,  ETC. 

1.  Specific  intent — Not  required.    See  INTENT,  2. 

SUFFICIENCY  OF  EVIDENCE.    See  CRITICISM  OF  COURTS-MARTIAL,  14. 

SUICIDE. 

1.  Attempted  suicide — Charged  under  "Scandalous  conduct  tending  to  the  destruction 

of  good  morals."    C.  M.  O.  9,  1916,  3;  G.  C.  M.,  Rec.  2J659. 

2.  Indexing — Assigned  as  a  cause  of  suicide.    Sec  INDEX,  8. 

3.  Line  of  duty  and  misconduct.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED, 

i:  9-100. 

4.  Nostalgia— Suicide  caused  by.    See  NOSTALGIA. 

5.  Threatening  suicide.    See  C.  M.  O.  60, 1888,  2. 

SUMMARY  COURTS-MARTIAL. 

1.  Accuse!—  Because  the  summary  court-martial  sentence  involving  extra  police  dutiei 

was  considered  illegal  by  the  senior  officer  present  and  set  asiie  by  the  Secretary 
of  the  Navy,  does  not  relieve  the  accused  from  responsibility  when  he  refuses  to  obey 
the  order  of  his  superior  officer.  C.  M.  O.  87,  1896. 

2.  Army  summary  court— No  jurisdiction  over  Marines  on  an  Army  transport.    Stt 

ARMY,  7. 

3.  Arraignment.    See  ARRAIGNMENT,  32. 

4.  Authentication— The  sentence  of  the  court  shall  be  signed  by  all  the  members  and 

by  the  recorder.    (R-620  (1).) 

After  the  proceedings  in  a  trial  have  been  completed  and  recorded  they  shall  b» 
signed  by  the  senior  member  and  the  recorder.    (R-620  (2).)    See  COURT,  149. 
A  record  of  proceedings  of  a  summary  court-martial  was  returned  for  the  second 
signature  of  the  senior  member.    File  31078-S.  C.  M.,  J.  A.  G.,  May  16,  1902;  20 
J.  A.  G.  210. 

A  record  of  proceedings  was  returned  for  the  signature  of  the  recorder.    File  31395- 
S.  C.  M.,  J.  A.  G.,  June  27, 1902;  20  J.  A.  G.  396. 

5.  Bad  conduct  discharges.    See  BAD  CONDUCT  DISCHARGE,  10,  11. 

6.  Binding  of  records.    See  BINDING  OF  COURT-MARTIAL  RECORDS. 

7.  Boatswain— Actually  in  command  of  a  naval  vessel  may  convene,  but  he  is  not  eligible 

to  sit  as  a  member  of  a  summary  court-martial.    See  BOATSWAINS,  10, 11. 

8.  Bread  and  water.    See  BREAD  AND  WATER. 

9.  Challenges.    See  CHALLENGES,  20. 

10.  Charges— The  accused  was  tried  by  summary  court-martial.  The  alleged  ofTensei 
were  set  forth  as  charges  with  specifications  thereunder,  similar  to  the  method  used 
in  general  courts-martial. 


SUMMARY   COURTS-MARTIAL.  613 

When  an  accused  is  tried  by  summary  court-martial,  charges  should  not  be  used. 
The  offense  should  be  set  forth  in  one  specification  and,  if  there  is  more  than  on* 
offense,  separate  specifications  should  be  used  to  set  forth  each  offense.  (Nary 
Regulations,  1913,  R-608  (1);  Forms  of  Procedure,  1910,  pp.  156,  166-172.) 

In  view  of  the  fact  that  the  error  in  this  case  is  one  of  procedure  and  does  not  render 
the  trial  illegal,  the  department  did  not  disapprove  the  proceedings  and  sentence. 
File  26287-2996,  Sec.  Navy,  June  14,  1915;  C.  M.  O.  22,  1915,  6. 

11.  "Commandant  of  marine  barracks" — Doubtless  the  word  "commandant"  is 

used  in  the  statute  (art.  26,  sec.  1624,  R.  S.)  in  a  broad  sense,  as  the  equivalent  of 
"commanding  officer";  the  meaning  of  the  two  forms  being  substantially  the  same; 
and  it  is  appropriate  to  employ,  in  signing  summary  court-martial  specifications, 
the  title  "commandant,  marine  barracks",  such  being  the  precise  language  of  th« 
statute.  File  1192-1,  Sec.  Navy,  Mar.  21.  1905. 

12.  Commanding  officers— May  convene  only  summary  courts-martial  and  deck  court* 

for  trial  of  enlisted  men  under  their  command.    See  COMMANDING  OFFICERS,  42. 

13.  Conduct  records — If  the  court  finds  the  specification  proved,  or  proved  in  part,  and 

the  recorder  has  stated  that  he  has  evidence  of  previous  convictions,  it  shall,  after 
arriving  at  such  finding,  open  and;  the  accused  being  present,  the  recorder  shall 
introduce  evidence  of  previous  convictions,  and  also  the  conduct  record,  if  the  latter 
is  desired  by  the  court.  (R-617  (1)). 

The  conduct  record  of  the  accused  during  his  current  enlistment  may  be  received 
in  evidence  between  the  finding  and  sentence  under  the  same  conditions  as  those 
prescribed  for  evidence  of  previous  convictions.  (R-616  (3)).  See  C.  M.  O.  96,  1898. 

14.  Confinement.    See  CONFINEMENT,  40,  41. 

15.  Constitution  of — A  summary  court-martial  shall  consist  of  three  officers  not  below 

the  rank  of  ensign,  as  members,  and  of  a  recorder.  The  commander  of  a  ship  may  order 
any  officer  under  his  command  to  act  as  such  recorder.  (A.  G.  N.  27.)  C.  M.  O. 
14, 1911,  8. 

16.  Contempt  of  court.    See  CONTEMPT  OF  COUBT,  5,  6. 

17.  Convening  authority — May  reprimand  members  or  bring  them  to  trial  by  court- 

martial.    See  CRITICISM  OF  COURTS-MARTIAL,  35.36. 

18.  Convening  authority  as  member — It  is  decidedly  improper,  though  not  illegal, 

for  a  convening  authority  to  detail  himself  as  a  member  of  a  summary  court-martial 
and  then  subsequently  to  act  upon  the  case  in  the  capacity  as  convening  authority. 
Case  disapproved  where  this  was  done.  File  26287-389;  26287-963.  But  see  File 
26287-1185  where  department  did  not  disapprove. 

19.  Convening  authority  disapproves — Necessary  action  of  senior  officer  present — The 

convening  authority  disapproved  the  proceedings  and  sentence  and  stated  in  his 
action  that  the  accused  "will  be  released  and  restored  to  duty."  This  action  was 
contrary  to  Navy  Regulations,  1913,  R-1830  (Navy  Regulations,  1913,  R-622  (8), 
which  reads,  "In  cases  where  the  accused  has  been  acquitted  by  the  court,  or  where 
the  sentence  has  been  disapproved  by  the  convening  authority,  the  record  of  pro- 
ceedings shall  be  submitted  to  the  senior  officer  present  in  the  same  manner  as  though 
a  sentence  requiring  action  still  remained."  This  action  of  the  convening  authority 
in  releasing  the  accused  from  arrest  was  improper,  since  by  so  doing  be  deprived  his 
superior  officer  of  the  right,  secured  to  him  by  the  Navy  Regulations  of  dealing  with 
the  case.  Had  he  not  released  the  accused  and  restored  him  to  duty,  the  senior  officer 
present  might  have  returned  the  record  to  the  court  for  revision  or  reconsideration 
of  the  sentence.  File  1192-1,  Sec.  Navy,  Mar.  21, 1905. 

20.  Convening  authority's  power  over  sentence — The  convening  authority  can  not 

dictate  what  sentence  shall  be  imposed,  nor  can  he  add  to  the  punishment  adjudged. 
If  he  deems  the  sentence  inadequate  his  power  over  it  is  limited  to  disapproval.  See 
CRITICISM  OF  COITRTS-MAETIAL,  35,36. 

21.  Convening  of — Summary  courts-martial  may  be  ordered  upon  petty  officers  and 

persons  of  inferior  ratings,  by  the  commander  of  any  vessel,  or  by  the  commandant 
of  any  navy  yard,  naval  station,  or  marine  barracks  to  which  they  belong,  for  the 
trial  of  offenses  which  such  officer  may  deem  deserving  of  greater  punishment  than 
such  commander  or  commandant  is  authorized  to  inflict,  but  not  sufficient  to  require 
trial  by  a  general  court-martial.  (A.  G.  N.  26.)  File  3980-1075,  J.  A.  G.,  Apr.  6, 1915. 

22.  Same— Summary  courts-martial  may  be  ordered  upon  enlisted  men  in  the  naval 

service  under  his  command  by  the  commanding  officer  of  any  brigade,  regiment,  or 
separate  or  detached  battalion,  or  other  separate  or  detached  command,  and,  when 
empowered  by  the  Secretary  of  the  Navy,  by  the  commanding  officer  or  officer  in 
charge  of  any  command  not  specifically  entioned  in  the  foregoing:  Provided,  That, 


614  SUMMARY    COURTS-MARTIAL. 

when  so  empowered  by  the  Secretary  of  the  Navy  to  order  summary  courts-martial 
the  commanding  officer  of  a  naval  hospital  or  hospital  ship  shall  be  empowered  to 
order  such  courts  and  deck  courts,  and  inflict  the  punishments  which  the  commander 
of  a  naval  vessel  is  authorized  by  law  to  inflict,  upon  all  enlisted  men  of  the  naval 
service  attached  thereto,  whether  for  duty  or  as  patients. 

No  sentence  of  a  summary  court-martial  shall  be  carried  into  execution  until  the 
proceedings  and  sentence  have  been  approved  by  the  officer  ordering  the  court,  or 
nis  successor  in  office,  and  by  his  immediate  superior  in  command:  Provided,  That 
if  the  officer  ordering  the  court,  or  his  successor  in  office,  be  the  senior  officer  present 
such  sentence  may  be  carried  into  execution  upon  his  approval  thereof.  (Act  of 
Aug.  29, 1916, 39  Stat.  586.)  C.  M.  O.  30, 1916.  See  also  SUMMARY  COURTS-MARTIAL 
38.  for  definition  of  "IMMEDIATE  SUPERIOR  IN  COMMAND." 

"  Hereafter  all  officers  of  the  Navy  and  Marine  Corps  who  are  authorized  to  order 
either  general  or  summary  courts-martial  may  order  deck  courts  upon  enlisted  men 
under  their  command,  and  shall  have  the  same  authority  to  inflict  minor  punish- 
ments as  is  conferred  by  law  upon  the  commander  of  a  naval  vessel."  (Act  of  Aug. 
29,  1916, 39  Stat.  586.) 

23.  Same — An  enlisted  man  of  the  Marine  Corps  attached  to  a  ship  of  the  Atlantic  Fleet 

was  a  member  of  a  detachment  temporarily  camping  ashore  and  committed  an  offense. 
The  commander  of  this  detachment,  in  bringing  the  man  to  trial  by  summary  court- 
martial,  signed  the  precept  and  specification  as  follows:  "Commanding  Officer, 
Fourth  Division  Atlantic  Fleet  Battalion,  U.  S.  Marine  Corps."  The  proceedings 
and  sentence  were  approved  without  comment  by  the  "Commander  Fourth  Division, 
U.  S.  Atlantic  Fleet,"  as  senior  officer  present.  As  the  officer  convening  this  summary 
court-martial  was  not  such  an  officer  as  is  empowered  under  the  provisions  of  A. 
O.  N.  26  to  convene  summary  courts-martial,  the  department  disapproved  the  pro- 
ceedings and  sentence.  File  26287-2857,  Sec.  Navy,  Mar.  15, 1915;  C.M.  0. 12, 1915,  6. 

24.  Criticism — Of  senior  member  by  name  in  court-martial  order.    See  CRITICISM  OF 

COURTS-MARTIAL,  62. 

26.  Same-^-Members  censured  and  entry  made  on  reports  of  fitness  as  to  manner  of  per- 
forming duty.    See  CRITICISM  OF  COURTS-MARTIAL,  36. 

26.  Deck  courts — When  an  enlisted  man  is  brought  before  the  deck  court  for  trial,  he 

shall  signify  his  willingness  to  be  so  tried  by  affixing  his  signature  to  a  statement 
to  that  effect  in  the  record.  If  he  does  so  object  to  such  trial,  he  shall  be  tried  for  the 
offense  by  a  summary  court-martial.  (R-506.) 

In  case  a  man  refuses  trial  by  deck  court  and  is  brought  to  trial  before  a  summary 
court-martial,  no  mention  concerning  such  refusal  should  be  made  in  the  record  of 
the  summary  court-martial.  C.  M.  O.  24, 1909,  3.  See  also  DECK  COURTS,  50. 

27.  Designation— The  proper  designation  of  a  summary  court-martial  is  "summary  court 

martial"  not  "summary  court."  See  C.  M.  O.  9,  1908,  3;  24,  1909,  3;  14,  1911,  8-9 
33, 1914,  5,  where  improper  designation  was  erroneously  used. 

28.  Disapproval  of  proceedings — And  approval  of  sentence  by  senior  officer  present. 

See  REVIEWING  AUTHORITY,  20. 

29.  Execution  of  sentences.    See  SUMMARY  COURTS-MARTIAL,  91. 

30.  Excessive  sentences.    See  EXCESSIVE  SENTENCES  5. 

31.  Final  disposition  of  records.    See  RECORD  OF  PROCEEDINGS,  59. 

32.  Findings— The  word  "finding"  is  not  used  in  actions  on  summary  courts-martial. 

C.  M.  O.  36,  1914,  5.    But  see  C.  M.  O.  15,  1910,  11,  where  the  word  "finding"  was 
used.    At  the  present  time  the  word  "finding"  is  used.    (NAVAL  COURTS  AND 
BOARDS,  1916,  p.  — .) 
Findings  when  there  are  two  or  more  specifications.    See  FINDINGS,  86. 

33.  Fraudulent  enlistment — Should  not  be  tried  by  summary  courts-martial.    See 

FRAUDULENT  ENLISTMENT,  91. 

34.  General  court-martial— General  courts-martial  are  empowered  by  statute  to  inflict 

anv  of  the  punishments  authorized  for  summary  courts-martial.  (R.  819).  See 
C.M.  O.  153,  1902;  162,  1902;  233,  1902. 

35.  Same — Charges  and  specifications  withdrawn  and  accused  tried  by  summary  court- 

martial.    See  NOLLE  PROSEQUI,  15. 

36.  Guilty  in  a  less  degree  than  charged — From  the  record  of  proceedings  in  the  case 

of  quartermaster  third  class,  United  States  Navy,  who  was  tried  by  summary  court- 
martial,  it  was  noted  that  the  accused  pleaded  "  Guilty  "  to  that  part  of  the  specifica- 
tion alleging  absence  from  his  ship,  station,  and  duty  without  leave  from  proper 
authority,  but  "Not  guilty"  to  that  part  of  the  specification  alleging  his  return  to 
the  ship  in  an  intoxicated  condition.  The  court  found  "the  specification  proved  by 


SUMMARY   COURTS-MARTIAL.  615 

plea  except  the  words  'under  the  influence  of  some  intoxicating  liquor'  thirteenth 
and  fourteenth  lines;  which  words  were  proved."  Such  a  finding  is  improper.  If 
the  court  found  the  entire  specification  proved,  the  proper  recording  of  such  finding 
would  be  "the  specification  proved,"  notwithstanding  the  fact  that  part  of  the 
specification  was  j>roved  "by  plea"  and  the  remainder  proved  by  evidence  adduced. 

In  this  connection,  however,  attention  is  invited  to  the  last  clause  of  the  paragraph 
headed  "  Rejection  of  plea,"  on  page  23  of  Forms  of  Procedure,  1910,  which  states  that 
"save  in  exceptional  cases,  a  court-martial  should  try  the  accused  for  the  offense  as 
charged." 

Furthermore,  when  an  accused  pleads  guilty,  except  to  certain  words  of  a  specifica- 
tion, it  devolves  upon  the  court  to  either  accept  or  reject  this-  plea  as  a  whole.  If 
accepted,  the  findings  of  the  court  should  accord  therewith;  and  if  rejected,  the  prose- 
cution is  put  to  the  proof  of  every  allegation  contained  in  the  specification,  and  not 
simply  to  those  portions  which  may  have  been  excepted  in  the  plea  of  the  accused. 
C.  M.  0. 15, 1910, 11. 

37.  Hospitals.   See  HOSPITALS,  2;  SUMMAKY  COURTS-MARTIAL,  22. 

38.  "Immediate  superior  In  command  "—Whenever  a  convening  authority  places  his 

indorsement  upon  the  record  of  a  summary  court-martial,  the  title  of  his  rank  and 
office  appearing  therein  should  clearly  show  that  he  is  legally  empowered  to  take 
the  action  designated  in  his  indorsement.  The  convening  authority  should  sign  thus: 

B- 


Colonel,  U.  S.  Marine  Corps, 

Commanding  —  Regiment,  U.  S.  Marine  Corps. 

D , 

Commander,  U.  S.  Navy, 

Commanding  U.  S.  S. . 


In  accordance  with  the  terms  of  the  act  of  August  29, 1916  (39  Statv  586),  the  sentence 
does  not  go  into  effect  until  approved  by  the  "immediate  superior  in  command," 
except  in  case  the  officer  ordering  the  court  is  the  senior  officer  present,  in  which 
event  the  approval  of  the  officer  ordering  the  court  is  alone  necessary  to  give  effect  to 
the  sentence;  but  in  stick  case  he  should  always  sign  his  indorsement  as  "Senior 
Officer  Present"  in  addition  to  signing  as  convening  authority,  thus: 


B- 


Colonel,  U.  S.  Marine  Corps, 

Commanding Regiment,  U.  S.  Marine  Corps,  and  Senior  Officer  Present. 

Commander,  U.  S.  Navy, 

Commanding  U.  S.  S.  — ,  and  Senior  Officer  Present. 

The  term  "Immediate  superior  in  command."  as  used  in  the  above  act,  is  construed 
as  meaning  that  officer  present  who,  in  the  cnain  of  command  of  the  forces  imme- 
diately present ,  is  next  above  the  officer  ordering  the  summary  court-martial.  Thus 
the  officer  present  commanding  a  division  is  next  above  each  of  the  commanding 
officers  of  the  ships  of  that  division  present;  the  officer  present  commanding  a  brigade 
is  next  above  each  of  the  commanding  officers  of  the  regiments  of  that  brigade  present ; 
and  when  ships  are  present  which  are  not  attached  to  a  unit  under  the  command  of 
an  officer  present  junior  to  the  senior  officer  present,  the  commanding  officers  of  such 
ships  are  next  below  the  senior  officer  present,  which  latter  officer  is  the  immediate 
superior  in  command  of  such  commanding  officers.  If  the  officer  who  orders  the 
summary  court-martial  is  in  the  presence  of  an  "Immediate  superior  in  command," 
he  should  sign  and  forward  the  record  to  such  superior  in  command  for  the  latter's 
final  action,  and  the  latter  should  sign  thus: 


E- 


Rear Admiral,  U.S.  Navy, 

Commander  Battleship  Division ,  U.  S.  Atlantic  Fleet, 

Immediate  Superior  in  Command. 

G H , 

Captain,  U.  S.  Navy,  Commanding  U.  S.  S. , 

Immediate  Superior  in  Command. 

From  the  above  It  will  be  seen  that  in  acting  upon  summary  court-martial  records 
in  the  future  the  term  "Senior  Officer  Present"  is  to  be  used  only  when  the  officer 


616  SUMMARY    COURTS-MARTIAL. 

convening  the  court  is  in  fact  the  senior  officer  present.  A  revising  authority,  whos» 
action  is  essential  to  validate  the  sentence  of  a  summary  court-martial,  will  in  every 
case  indicate  the  fact  by  using  the  term  "Immediate  superior  in  command,"  even 
though  such  revising  authority  be  in  fact  the  senior  officer  present.  C.  M.  O.  80, 
1916,  7-8.  See  also  SUMMARY  COURTS-MARTIAL,  22. 

39.  Irregularities.    See  RECORD  OF  PROCEEDINGS. 

40.  Joinder,  trial  In.    C.  M.  0. 13, 1916,  5.    See  also  JOINDER,  TRIAL  IN,  9. 

41.  Jurisdiction — Summary  courts-martial  have  jurisdiction  only  of  enlisted  men  and 

shall  try  only  such  offenses  as  are  not  sufficient  to  require  their  trial  by  general  court- 
martial.  C.M.  O.7, 1914, 12.  Seealso  A.  G.  N.  26. 

43.  Las  Anlmas  Naval  Hospital — Department's  policy  with  reference  to  summary 

courts-martial  at  said  hospital.    File  26287  15:44,  Sec.  Navy.  July  3,  1913,  quoted  in 
File  26836  16,  J.  A.  G..  Dec.  9,  1913.    But  see  SUMMARY  COURTS-MARTIAL,  22,  for 
the  law  and  present  policy.    See  also  SUMMARY  COURTS-MARTIAL,  51. 
4S.  Limitations  of  punishments.   See  SUMMARY  COURTS-MARTIAL,  86. 

44.  Limited  jurisdiction.    See  SUMMARY  COURTS-MARTIAL,  40. 

45.  Lost  records — Sentence  may  be  carried  into  effect  if  approved  before  being  lost.    S«t 

RECORD  OF  PROCEEDINGS,  70. 

46.  Marine  Barracks.    See  SUMMARY  COURTS-MARTIAL,  22. 

47.  Members— Failing  to  sign  record.    See  MEMBERS  OF  COURTS-MARTIAL,  12. 

48.  Same — Obtaining  where  not  attached  to  vessel  of  convening  authority — When  a  trial 

by  summary  court-martial  is  decided  upon,  and  a  sufficient  number  of  officers  of  the 
proper  rank  to  compose  the  court  are  not  under  the  command  of  the  convening  au- 
thority, the  latter  shall  request  the  senior  officer  present  to  detail  the  additional 
officers  necessary.  (R  603  (!).) 

The  senior  officer  present  shall,  if  practicable,  comply  with  such  request,  in  which 
case  he  shall  orally  or  in  writing  notify  the  officers  detailed.  (R-603  (2).)  C.  M. 
O.  6,  1915,  6. 

49.  Multiplicity  of  specifications  for  same  offense.   See  CHARGES  AND  SPECIFICATIONS. 

62. 

10.  Multiplicity  of  trials — The  accused  was  tried  by  summary  court-martial  three  separate 

and  distinct  times  on  the  same  date  for  offenses  which  might  have  been  disposed  of 
at  one  trial.  Upon  a  careful  review  of  these  records,  no  irregularity  was  found  which 
would  invalidate  the  proceedings.  One  trial  should  have  been  held,  the  accused 
having  three  specifications  preferred  against  him  as  is  provided  for  in  Forms  of  Pro- 
cedure, 1910.  page  156,  thereby  saving  the  time  of  the  accused  and  the  members  of 
the  court  and  avoiding  the  clerical  workinvolved  in  preparing  a  multiplicity  of  records. 
File  26287  3303,  J.  A.  G..  Feb.  12,  1916;  C.  M.  O.  5,  1916,  6. 

11.  Naval  hospital,  Las  Aulnias,  Colo.— "In  accordance  with  the  authority  vested  in 

me  by  the  act  approved  August  29, 1916  (39  Stat. ,  5^6)  I  hereby  authorize  the  com- 
manding officer  01  the  United  States  naval  hospital,  Las  Animas,  Colo.,  to  order 
summary  courts-martial."  File  26287  1981:4,  Sec.  Navy,  Sept.,  1916. 

The  above  commanding  officer,  if  he  is  the  senior  officer  present,  would  properly 
sign  his  approval  on  court-martial  records  as  such  and  the  sentences  could  then  be 
carried  into  execution  without  further  approval.  It  would  not  be  necessary  for  the 
Secretary  of  the  Navy  to  specifically  authorize  the  sentence  to  be  carried  into  execu- 
tion upon  such  approval.  File  26287-1981:4,  J.  A.  G.,  Sept.  15, 1916.  See  also  HOSPI- 
TALS, 2;  SUMMARY  COURTS-MARTIAL,  22,  42. 

52.  New  court — See  CONFINEMENT,  5;  SUMMARY  COURTS-MARTIAL,  80,  82;  File  32557-58- 

S.  C.  M.,  J.  A.  G.,  Nov.  7,  1902;  21  J.  A.  G.,  331. 

53.  Nolle  prosequl— General  court-martial  charges  and  specifications  withdrawn,  and  the 

accused  tried  by  summary  court-martial.    See  NOLLE  PROSEQUI,  15. 

54.  Oaths.    See  OATHS,  47,  54. 

55.  Pay— The  record  of  proceedings  of  a  summary  court-martial  was  returned  with  the 

following  remarks:  "This  record  fails  to  show  that  checkage  of  pay  has  been  made" 
as  required  by  Navy  Regulations,  1913,  R  626,  and  Forms  of  Procedure,  1910,  page 
166.  C.  M.  O.  34,  1913,  3. 

In  both  summary  courts-martial  and  deck  courts  records,  the  pay  officer  should 
show  over  his  signature  the  amount  of  checkage  made  in  each  case.  C.  M.  O.  24, 
1909,  3. 

Summary  courts-martial  and  deck  courts  are  authorized  by  the  act  of  February  16, 
1909,  section  8  (35  Stat..  621),  to  award  a  loss  of  pay. by  itself,  without  confinement. 
C.  M.  O.  24, 1909,  3.  See  in  this  connection  G.  O.  129,  June  14,  1869. 


SUMMARY   COURTS-MAKTIAL.  61f 

40.  Same — Loss  of  pay  in  summary  courts-martial  and  deck  courts  should  be  checked  upon 
approval  by  the  senior  officer  present  or  convening  authority,  respectively,  and  no 
notation  should  be  made  as  to  the  loss  of  pay  being  "Subject  to  the  approval  of  tho 
Secretary  of  the  Navy."  Such  reference  is  no  longer  necessary,  as  is  evident  from 
section  17  of  the  act  of  February  16,  1909  (35  Stat.,  622),  embodied  in  General  Order 
No.  12.  of  1909.  C.  M.  O.24, 1909, 3.  See  also  DECK  COURTS,  36. 

57.  Same — Loss  of  pay  for  both  summary  an.1  deck  courts  should  be  expressed  in  dollars 

and  cents — not  days'  pay — and  should  be  based  upon  the  actual  pay,  not  including 
extras  for  mess  cook,  gun  pointer,  acting  coxswain,  etc.    See  DECK  COURTS,  35. 

58.  Same— The  reason  for  stating  the  pay  account  status  of  the  accused  in  a  summary 

court-martial  record  is  to  prevent  an  excessive  sentence.    See  ACCUSED,  54. 

59.  Same — Loss  of  pay  checked  upon  approval  of  the  "immediate  superior  in  command." 

See  SUMMARY  COURTS-MARTIAL,  22,  38. 

CO.  Pay  officers— Notations  on  records.  C.  M.  0. 36, 1914, 5.  Seealso  164  S.  and  A.  Memo 
3405. 


If,  however,  more  than  one  case  is  to  be  tried  by  the  same  court,  the  order  shall  b* 
referred  to  in  each  case  subsequent  to  the  first  to  show  that  the  proceedings  are  con- 
tinuous, and  the  record  of  each  case  must  be  made  up  separately.  (R  610  (2).) 

The  precept  for  a  summary  court-martial  shall  specify  the  personnel  of  the  court 
and  the  time  and  place  of  meeting.  (R  604  (1).) 

The  convening  authority  shall  deliver  the  precept  to  the  senior  member  and,  orally 
or  in  writing,  notify  the  other  members  and  recorder  of  their  appointment.  (R-604 
(2)-) 

€2.  Reconvening  by  senior  officer  present.    See  RECONVENING,  16. 
€3.  Reconvening  of  Itself.    See  COURT,  149. 

64.  Record  of  proceedings-^-"  After  the  proceedings  and  trial  have  been  completed  and 

recorded,  they  shall  be  signed  by  the  senior  member  and  the  recorder,  and  the  senior 
member  shall  transmit  the  record  to  the  convening  authority.  (R-620  (2).)  C.  M. 
O.  15, 1910, 12. 

65.  Same — If  the  convening  authority  approves  the  whole  or  any  part  of  the  sentence 

adjudged,  he  shall  transmit  the  record  to  the  commander  in  chief,  or  in  his  absence 
to  the  senior  officer  present.  Should  no  officer  senior  to  himself  be  present,  he  shall, 
in  subscribing  his  action  upon  the  record,  add  to  his  title  the  words  "Senior  Officer 
Present."  (R-620  (4).)  Stealso  SUMMARY  COURTS-MARTIAL,  38. 

66.  Same — In  cases  where  the  accused  has  been  acquitted  by  the  court,  or  where  the  sen- 

tence has  been  disapproved  by  the  convening  authority,  the  record  of  proceedings 
shall  be  submitted  to  the  senior  officer  present  in  the  same  manner  as  though  a  sen- 
tence requiring  action  still  remained.  (R-622  (8).) 

67.  Same — Records  of  proceedings  of  summary  courts-martial  shall  be  kept  and  made  up 

in  the  manner  hereinafter  prescribed  for  records  of  general  courts-martial  and  in 
accordance  with  the  instructions  contained  in  the  authorized  forms  of  procedure. 
They  shall  be  transmitted  direct  to  the  Judge  Advocate  General.  (R-624  (1).)  C. 
M.  O.  1,  1913,  7.  - 

Record  of  proceedings  in  revision  should  be  prefixed,  not  appended.  See  RE- 
VISION, 37;  SUMMARY  COURTS-MARTIAL,  81. 

€8.  Same— Proceedings  and  sentence  approved  by  the  convening  authority,  but  senior 
officer  present  disapproved  proceedings  and  approved  sentence.  See  SUMMARY 
COURTS-MARTIAL,  28;  I  EVIEWING  AUTHORITY,  20. 

69.  Same— Where  record  is  lost  after  approval  sentence  may  be  carried  into  eCect.    See 

RECORD  OF  PROCEEDING,  70. 

70.  Recorder— Such  procedure  was  irregular  and  indicated  a  lack  of  preparation  of  the 

case  by  the  recorder  and  carelessness  on  the  part  of  the  court  in  not  noticing  the  error 
referred  to  at  the  proper  time  and  before  reaching  its  finding  and  rendering  judgment. 
Navy  Regulations,  1909,  R-1694  (2)  [Navy  Regulations,  1913,  R-620  (2)]  provides 
that  after  the  proceedings  and  trial  have  been  completed  and  recorded,  they  shall  be 
signed  by  the  senior  member  and  the  recorder,  and  transmitted  to  the  convening 
authority.  Paragraph  1  of  the  above  article  states  that  the  sentence  of  the  court 
shall  be  signed  by  all  the  members  and  the  recorder.  (See  also  art.  1776,  U.  S.  Navy 
Regulations,  1909.) 


618  SUMMARY   COURTS-MARTIAL. 

On  page  2  of  the  record  it  is  shown  that  the  only  witness  called  was  duly  warned 
and  withdrew  after  having  verified  his  testimony.  On  page  4  it  appears  that,  although 
the  court  had  "reconvened,"  this  witness  was  recalled,  permitted  to  recorrect  his 
testimony,  which  he  had  previously  pronounced  to  be  correct,  and  to  give  additional 
testimony.  Furthermore,  it  is  observed  that,  after  this  irregular  procedure,  the 
court  allowed  the  accused  to  question  this  witness,  but  the  question  having  been 
propounded  and  the  answer  thereto  given,  the  court  decided  that  "  the  question  by 
the  accused  and  the  answer  were  irregular  and  should  not  have  been  allowed,  and 
also  decided  not  to  consider  such  question  and  answer  in  its  finding  and  sentence. " 

Article  1685  (10),  United  States  Navy  Regulations,  1909,  provides  that  no  evidence 
except  evidence  of  previous  conviction,  shall  be  admitted  after  the  court  arrives  at 
its  finding.  As  the  court  has  reached  its  finding  (as  shown  on  p.  2),  this  procedure 
was  not  only  irregular,  but  violated  the  aforementioned  article. 

Although  the  court  had  previously  reached  its  finding  (p.  2),  it  is  observed  (p.  4) 
that  the  court,  without  revoking  its  former  finding,  directed  the  recorder  to  record  an 
additional  finding.  C.  M.  0. 15, 1910, 12. 

71.  Same— The  recorder  is  a  constituent  part  of  the  summary  court-martial.    C.  M.  0. 14. 

1911,  8. 

72.  Same-^Difference  between  recorders  of  deck  courts  and  summary  courts-martial 

described.    See  DECK  COURTS,  58. 

73.  Same — An  accused  either  has  counsel,  or  waives  such  assistance,  but  even  then,  the 

recorder  is  required  to  safeguard  the  interests  of  the  accused.    C.  M.  O.  31,  1911,  6. 

74.  Sanies-Criticised  by  thr  department  for  neglecting  his  duty.    C.  M.  O.  42,  1909,  15-16. 

Criticised  for  trying  case  out  of  court.    See  ACQUITTAL,  30. 

Record  returned  for  signature  of  recorder.  File  31395-S.  C.  M.,  J.  A.  G.,  June  27. 
1902;  20  J.  A.  G.,396. 

75.  Reduction  In  rating — In  response  to  an  inquiry  as  to  the  maximum  forfeiture  of  pay 

a  summary  court-martial  could  adjudge  in  the  case  of  a  man  reduced  by  sentence  of 
the  court  to  the  next  inferior  rating,  the  department  held  (File  26287  1372:1): 

"  The  department  considers  that  the  intent  of  article  30,  Articles  for  the  Government 
of  the  Navy,  which  limits  the  loss  of  pay  that  a  summary  court-martial  may  adjudge, 
to  the  loss  of  three  months'  pay,  is  to  limit  the  loss  to  three  months'  pay  based  on  the 
pay  of  the  accused  in  the  rating  to  which  he  has  been  reduced."  C.  M.  O.  1,  1913,  7. 
See  also  REDUCTION  IN  RATING,  30. 

76.  Rejection  ol  accused's  plea — Of  guilty  in  a  less  degree  than  charged.    See  GUILTY 

IN  A  LESS  DEGREE  THAN  CHARGED,  9-11. 

77.  Reports  on  fitness — Members  censured  and  manner  of  performing  duty  entered  on 

reports  of  fitness.    See  CRITICISM  OF  COURTS-MARTIAL.  36. 

mitigate  "confinement"  to  "re- 
:;  SUMMARY  COURTS-MARTIAL,  92. 
etc.,  may  not  be  adjudged  by  a 

summary  court-martial.  See  RESTRICTION,  5,  6. "  'See  also  SUMMARY  COURTS-MAR- 
TIAL, 92. 

80.  Revision— The  convening  authority  may  submit  the  case  to  the  same  or  to  another 

summary  court-martial.    (R-621  (2).) 

If  a  new  court  be  ordered,  it  is  restricted  in  its  action  to  a  reviewal  of  the  record  of 
the  former  trial  and  a  redetermination  of  the  sentence.  No  further  testimony  is  to 
be  admitted.  (R-621  (3).)  [See  REVISION,  14.] 

Revision  by  a  new  court  can  be  ordered  only  in  a  case  where  the  sentence  of  the 
original  court  would  be  detrimental  to  the  health  of  the  accused.  File  26287-1507; 
26287-1508. 

81.  Same— Record  in  revision  should  be  prefixed  to  record  of  which  it  is  a  part,  not  ap- 

pended.   C.  M.  O.  29,  1914,  3.    See  also  REVISION,  32. 

82.  Same — A  summary  court-martial  case  was  returned  to  court  by  the  senior  officer 

present  to  the  convening  authority  for  correction  regarding  the  introduction  of  a 
previous  conviction  not  admissible. 

A  new  and  different  court  was  ordered  by  the  convening  authority  which  court 
eliminated  from  consideration  that  part  of  the  enlistment  record  questioned,  and 
adhered  to  former  sentence. 

Department  disapproved  entire  proceedings  and  sentence  because  of  above  irregu- 
larity and  also  the  fact  that  a  new  court  for  revision  can  be  ordered  only  in  a  case  where 
the  sentence  of  the  original  court  would  be  detrimental  to  health  of  accused.  File 
26287-1507,  Sec.  Navy,  Feb.  20, 1913. 


SUMMARY   COURTS-MARTIAL.  619 

83.  Secretary  of  Navy — No  express  action  is  taken  by  the  Secretary  of  the  Navy;  after  a 

summary  court-martial  record  has  been  approved  by  the  convening  authority,  and 
the  senior  officer  present,  unless  it  is  decided  to  "set  aside  the  proceedings,  or  remit 
or  mitigate,  in  whole  or  in  part,  the  sentence  imposed"  by  any  summary  court- 
martial;  arid  in  such  case  the  record  is  acted  upon  oy  the  Secretary  of  the  Navy,  or 
acting  Secretary  of  the  Navy  in  person  in  accordance  with  the  provisions  of  section 
9  of  the  act  of  February  16,  1909  (35  Stat.,  621). 

Where  no  express  action  is  taken  by  the  Secretary  of  the  Navy,  or  acting  Secretary 
of  the  Navy,  the  sentence  of  the  court-martial  is  permitted  to  be  carried  into  effect 
in  accordance  with  section  17  of  said  act  of  February  16, 1909  (35  Stat.,  622),  which  pro- 
vides "that  all  sentences  of  summary  courts-martial  may  be  carried  into  effect  upon 
the  approval  of  the  senior  officer  present."  Ffle  27210-183,  Apr.  22, 1913. 

Special  action  by  Secretary  of  Navy.    C.  M.  O.  5,  1914,  4;  33,  1914,  6-8. 

84.  Senior  member — Criticized  and  name  published  in  Court-martial  Order.    See  CRITI- 

CISM OF  COUKTS-MARTIAL,  62. 

85.  Senior  officer  present.    See  SENIOR  OFFICER  PRESENT;  SUMMARY  COURTS-MARTIAL, 

38,92. 

86.  Sentences — Summary  courts-martial  may  sentence  petty  officers  and  persons  of 

inferior  ratings  to  any  one  of  the  following  punishments,  namely: 

(1)  Discharge  from  the  service  with  bad -conduct  discharge;  but  the  sentence  shall 
not  be  carried  into  effect  in  a  foreign  country. 

(2)  Solitary  confinement,  not  exceeding  30  days,  on  bread  and  water,  or  on  dimin- 
ished rations. 

(3)  Solitary  confinement  not  exceeding  30  days. 

(4)  Confinement  not  exceed  ing  two  months. 

(5)  Reduction  to  next  inferior  rating. 

(6)  Deprivation  of  liberty  on  shore  on  foreign  station. 

(7)  Extra  police  duties,  and  loss  of  pay,  not  to  exceed  three  months,  may  be  added  to 
any  of  the  above-mentioned  punishments. 

"The  courts  authorized  to  impose  the  punishments  prescribed  by  article  30  of  the 
'Articles  for  the  Government  of  the  Navy'  may  adjudge  either  a  p'art  or  the  whole, 
as  may  be  appropriate,  of  any  one  of  the  punishments  therein  enumerated :  Provided,  • 
That  the  use  of  irons,  single  or  double,  is  hereby  abolished  except  for  the  purpose 
of  safe  custody,  or  when  part  of  a  sentence  imposed  by  a  general  court-martial." 
(Act  Feb.  16,  1909,  35  Stat.,  621.)  A.  G.  N.  30.  C.  M.  O.  2,  1912,  5.  See  also  CON- 
FINEMENT, 12,  40,  41. 

87.  Same^— Summary  courts-martial  are  restricted  in  their  sentences  to  the  punishments 

specifically  authorized  in  article  30  of  the  Articles  for  the  Government  of  the  Navy, 
R-30,  but  all  courts  empowered  to  impose  the  punishments  prescribed  by  the  above- 
mentioned  article  may  adjudge  either  a  part  or  the  whole,  as  may  be  appropriate, 
of  any  one  of  the  punishments  therein  enumerated.  Care  must  be  taken,  therefore, 
not  to  include  parts  of  two  or  more  punishments  in  a  sentence.  Hence,  sentences  to 
"extra  duties"  instead  of  "extra  police  duties,"  and  to  "dishonorable"  instead  of 
"bad-conduct"  discharge  are  illegal,  as  imposing  a  punishment  differing  in  nature 
from  those  authorized.  Also,  sentences  involving  confinement  on  bread  and  water 
or  on  diminished  rations  are  illegal  unless  it  is  expressly  provided  that  such  confine- 
ment is  to  be  "solitary,"  although  solitary  confinement  may  be  adjudged  by  itself. 
(R-619  (1).)  C.  M.  O.  2,  1912,  5. 

88.  Same — Should  conform  to  an  established  schedule  in  order  to  secure  uniformity.    See 

SENTENCES,  111,  112. 

89.  Same — Must  adhere  to  statutory  form  of  sentences.    See  CONFINEMENT,  41;  STATUTORY 

SENTENCES,  1, 3-6. 

90.  Same — Where  the  legal  term  of  confinement  is  limited  to  "30  days,"  the  exact  phrase- 

ology should  be  employed  in  adjudging  a  sentence  involving  'confinement  for  such 
maximum  period.  A  sentence  of  "solitary  confinement  not  exceeding  one  month," 
for  example,  would  be  irregular  and  improper,  as  A.  G.  N.  30,  prescribes  "30  days" 
as  the  maximum,  while  1  month  might  be  in  excess  of  the  limit  so  fixed.  C.  M.  O. 
2, 1912,  5. 

91.  Same — All  sentences  of  summary  courts-martial  may  be  carried  into  effect  upon  the 

approval  of  the  senior  officer  present.  (Act  Feb.  16, 1909.  35  Stat.,  623;  A.  G.  N.32). 
C.  M.  O.  31,  1911,  3-4;  File  3980-1075,  J.  A.  G.,  Apr.  6,  1915.  &ee  in  this  connection 
SUMMARY  COURTS-MARTIAL,  38. 

"No  sentence  of  a  summary  court-martial  shall  be  carried  into  execution  until  the 
proceedings  and  sentence  have  been  approved  by  the  officer  ordering  the  court,  or  his 


620  SUMMARY   COURTS-MARTIAL. 

successor  in  office,  and  by  his  immediate  superior  in  command:  Provided,  That  if  th» 
officer  ordering  the  court,  or  his  successor  in  office,  be  the  senior  officer  present,  such 
sentence  may  be  carried  into  execution  upon  his  approval  thereof."  (Act,  Aug.  29, 
191C,  39  Stat.,  58X)  C.  M.  O.  30, 1910,  6.  See  also  SUMMARY  COURTS-MARTIAL,  38. 
92.  Same — "To  the  limits  of  the  garrison" — A  record  of  a  recent  summary  court-martial 
shows  that  the  court  adjudged  the  following  sentence:  "To  be  confined  to  the  limits 
of  the  garrison  for  two  (2)  months  and  lose  pay  amounting  to  thirty  (30)  dollars." 

The  question  thus  appears  to  b3  whether  the  court  properly  phrased  its  sentence 
in  requiring  that  the  confinement  for  two  months  should  be  restricted  "to  the  limits 
of  the  garrison,"  or  whsthor  it  should  have  simply  made  the  sentence  read  as  phrased 
in  the  law,  i.  e.,  "  confinement  for  two  (2)  months  and  to  lose  pay  amounting  to  thirty 
(30)  dollars."  Hel  i,  That  the  court  inserted  in  its  sentence  a  provision  for  which  the 
law  contains  no  authority,  ani  made  the  sentence  one  which  merely  deprived  the 
offender  of  libsrty  for  two  months.  It  was  not  intended  that  the  statute  should 
cover  punishments  which  the  commanding  officer  himself  was  authorized  to  inflict, 
one  of  which  is  deprivation  of  liberty.  Article  26  of  the  Articles  tor  the  Government 
of  the  Na'/y  specifically  proviies  that  summary  courts-martial  are  intended  "for 
the  trial  of  offenders  which  su  'h  officer  may  deem  deserving  of  greater  punishment 
than  such  comman  ler  or  commandant  is  authorized  to  inflict." 

One  of  the  punishments  which  a  summary  court-martial  is  authorized  to  inflict  is 
"deprivation  of  liberty  on  shore  on  foreign  station,"  and  the  fact  that  article  30, 
Articles  for  the  Government  of  the  Navy,  so  provides,  also  tends  to  exclude  the  theory 
that  a  summary  court-martial  can  adjudge  a  sentence  which  amounts  only  to  a 
deprivation  of  liberty  on  shore  in  this  country. 

It  appears  to  be  evident,  therefore,  that  the  punishment  of  "confinement  not 
exceeding  two  months"  authorised  by  article  30,  Articles  for  the  Government  of  the 
Navy,  was  intended  to  be  a  different  punishment  from  mere  deprivation  of  liberty, 
which  the  oommaniin?  officer  himself  could  adjudge.  Indeed,  if  the  convening 
authority,  after  reviewing  the  proceedings  of  a  summary  court-martial,  deems  that 
the  ends  of  justice  will  be  subserved  by  so  doing,  he  is  authorized  to  mitigate  a  sen- 
tence of  "confinement  not  excee  ling  two  months"  to  "confinement  to  the  limits  of 
the  garrison,"  but  no  such  power  is  given  to  the  court  itself,  which  must  strictly 
adhere  to  the  statutory  form  of  sentence.  Therefore,  not  only  upon  the  authority 
of  the  casis  hereinbefore  cital,  but  also  upon  principle,  the  court  had  no  authority 
to  maVe  "any  departure  in  t;i3  sentence  from  the  express  terms  of  the  statute,  whether 
as  to  the  form  or  the  extent  of  the  punishment." 
The  sentence  is  tharefqre  void  an  I  of  no  effect.  C.  M.  O.  2, 1912, 4-11. 

93.  Service  records — Transcripts  for.    See  SERVICE  RECORDS,  19. 

94.  Setting  aside.    See  SETTING  ASIDE. 

95.  Solitary  confinement.    See  BREAD  AND  WATER,  4;  CONFINEMENT,  5.  12;  SOLITAHT 

CONFINEMENT;  SUMMARY  COURTS-MARTIAL,  86. 

96.  Specifications — A  single  specification  should  set  forth  only  one  offense — Accused  was 

tried  under  one  specification  which  alleged  "  his  return  to  said  ship  from  special  liberty, 
drunk  and  disorderly;"  and  that  he  did  "while  being  placed  in  confinement  *  *  * 
forcibly  resist  arrest."  Thus  two  distinct  offenses  were  set  forth  in  a  single  specifica- 
tion, whereas  "each  offense  of  a  different  kind  shall  be  the  subject  of  a  distinct  charge 
and  specification."  (Forms  of  Procedure,  1910,  p.  83.) 

It  has  been  noted  during  the  past  month  hi  the  review  of  summary  court-martial 
cases  that  in  a  number  of  cases  several  offenses  have  been  set  forth  in  the  same  specifi- 
cation. This  error  is  most  commonly  committed  in  joining  "absence  over  leave" 
with  such  offenses  as  "drunk  and  disorderly,"  "returning  on  board  drunk  and  unfit 
for  duty,"  and  "breaking  arrest."  Each  of  the  latter  offenses  is  distinct  in  itself, 
notwithstanding  its  causal  connection  with  the  offense  of  "absence  over  leave,"  and 
should  be  set  forth  in  a  separate  specification.  (Navy  Regulations,  1913,  R-608. 
See  also  R-712  (2)).  C.  M.  0. 16, 1916, 6-7.  See  ako  CHARGES  AND  SPECIFICATIONS, 
45,  62. 

97.  Speedy  trials.    Sec  SPEEDY  TRIALS,  3. 

98.  Statutory  sentences.    See  STATUTORY  SENTENCES. 

99.  Testimony.    See  EVIDENCE,  88. 

100.  Titles— It  was  recommended  that  certain  commanding  officers  be  authorized  to  use 
the  title  of  "commandant"  when  convening  summary  courts-martial  and  deck 
courts.  File  26287-1183,  J.  A.  G.,  May  4,  1912. 


SUMMARY   COURTS-MARTIAL.  621 

101.  Trying  case  out  of  court — The  recorder  should  not  usurp  the  functions  of  the  court 

by  '"trying  the  case  out  of  court."    C.  M.  O.  42, 1909, 15.    See  alto  JUDGE  ADVOCATE, 

102.  Uniformity  of  sentences.    See  SENTENCES,  111,  112. 

103.  Usurpation — Of  courts  functions  by  recorder.    See  COURTS,  186;  C.  M.  O.  42, 1909, 15. 

104.  Warrant  officers— May  not,  if  not  commissioned,  sit  as  a  member;  but  otherwise  if  a 

commissioned  warrant  officer.  See  CHIEF  BOATSWAINS,  2;  SUMMARY  COUHTS-MAR- 
TIAL,  105. 

105.  Same — The  fact  that  a  boatswain  who  is  a  commanding  officer  may  be  junior  to  all 

of  the  members  of  a  summary  court-martial  convened  by  him  is  immaterial.  A 
case  of  this  nature  occurred  at  the  Philadelphia  Navy  Yard  in  reference  to  the  acting 
commandant  convening  a  summary  court-martial  for  the  trial  of  men  attached  to 
the  receiving  ship  at  that  yard,  because  the  commanding  officer  of  the  receiving  ship 
was  junior  to  the  senior  member  of  the  proposed  summary  court-martial.  Th« 
department  in  this  case  stated: 

"Since,  however,  the  inaictingof  minor  punishments,  on  board  ships  in  commission, 
including  the  ordering  of  the  trial  by  summary  court-martial  of  men  attached  thereto, 
concerns  internal  discipline,  and  since  the  uniform  practice  on  board  receiving  ships 
at  other  yards  is  and  has  been  for  the  commanding  officer  of  such  receiving  ships  to 
exercise  the  prerogatives  of  convening  authority,  the  commandant  acting  as  senior 
officer  present,  as  prescribed  by  the  regulations,  it  is  considered  advisable  in  futur* 
that  the  same  practice  be  followed  at  the  navy  yard  under  your  command,  and  it  i* 
directed  that  it  be  done."  File  26287—1873. 

106.  Witnesses— Summons  for.    See  WITNESSES,  59, 107. 

SUMMONS.    See  also  SUBPOENAS. 

1.  Enlisted  men  and  others— As  witnesses  before  naval  courts-martial.  Set  WITNESSED 
59, 107. 

SUNDAY.   See  also  SABBATH  DAY. 

1.  General  courts-martial— Adjourning  over  Sundays.    See  ADJOURNMENT  or  Cou*w- 

MARTIAL. 

2.  Laws.    See  SUNDAY  LAWS. 

SUNDAY  LAWS. 

1.  Base  ball  on  Sundays— "It  is  not  illegal  per  te  to  play  ball  on  Sunday.  However, 
where  it  is  played  in  such  a  manner  as  to  interrupt  the  repose  and  religious  liberty 
of  the  community,  or  when  the  game  is  public  and  an  admission  is  charged  directly 
or  indirectly,  it  becomes  unlawful  unier  statutes  prohibiting  sporting  or  public 
sport,  but  does  not  under  statutes  prohibiting  games."  (37  Cyc.,  551.)  It  has  also 
been  judicially  stated  that  physical  exercises  and  games  are  not  forbidden  on  the 
Sabbath  in  the  Ten  Commandments;  and  that  in  the  Christian  Church  there  have 
never  been  any  rules  prohibiting  physical  games  and  exercises  on  Sunday.  (37  Cyc.. 
550,  citing  People  v.  Poole,  89  N.  Y.  S.,  773.)  File  5103-164:4,  Sec.  Navy,  Sept.  9, 
1915.  See  also  File  3355-145,  July  2, 1907. 

SUPERIOR  OFFICERS. 

1.  Definition— "Officer"  as  defined  in  R-64.    See  OFFICERS.  33. 

"An  officer  whose  rank  is  higher  in  comparison  with  another.  A  senior  officer." 
(Hamersly's  Naval  Encyc.)  File  26251-12159,  p.  13. 

"  Of  more  excellent  rank  or  dignity;  belonging  to  a  higher  grade;  as  a  superior  court; 
superior  studies  *  *  *.  Locally  higher;  more  elevated;  upper  *  *  *.  A  per- 
son of  more  exalted  rank  or  dignity  than  another  or  others  *  *  *."  (Stand.  Diet.) 
File  26251-12159,  p.  13. 

"  By  the  term '  superior,'  as  used  in  this  part  of  the  Article  [Art.  of  War  21];  is  clearly 
meant  an  officer  of  rank  superior  to  that  of  the  offender — or,  where  an  enlisted  man 
is  the  offender,  any  commissioned  officer  whatever — whether  or  not  such  officer  be, 
properly  speaking,  a  commanding  officer."  ( Winthrop,  880.)  File  26251-12159,  p.  14. 

In  1909  the  question  was  presented  whether  the  senior  Civil  Engineer  was  the  official 
superior  of  other  officers  in  the  Corps  of  Civil  Engineers  with  whom  he  was  not  asso- 
ciated on  duty,  and  who  desired  to  present  him  with  a  testimonial.  It  was  con- 
tended that  "the  meaning  of  superior  is  one  whose  position  planes  him  over  and  in 
charge  or  control,  of  those  contributing  to  or  presenting  him  with  a  gift,  and  that  a 
senior  naval  officer  is  not  necessarily  a  superior  under  this  clause.  Thus  an  officer  in 
command  of  a  ship  would  be  &  superior  of  the  junior  officers  serving  on  that  ship,  under 


622  SUPERIOR  OFFICERS. 

him,  but  would  be  a  senior  and  not  a  superior  to  officers  on  other  ships  not  under 
his  command.  Similarly,  a  Chief  of  Bureau  would  be  the  superior  of  the  officers 
serving  under  him  under  the  Bureau,  and  would  be  a  senior  but  not  a  superior  to 
officers  serving  under  other  Bureaus  or  upon  detached  duty  independent  to  that 
Bureau."  The  departments  decision,  November  9, 1909,  was  as  follows: 

"The  interpretation  in  quevStion  depends  upon  a  definition  of  the  words  superior 
official  in  which  the  department  can  not  concur,  as  it  is  considered  that  an  officer 
superior  in  rank  is  a  superior  official  within  the  intention  of  the  Regulation  [R-1520], 
which  is  section  1784  of  the  Revised  Statutes  with  a  paragraph  added  to  prevent 
indirect  presents  to  officers  of  the  Navy  *  *  *.  The  department,  therefore  dis- 
affirms the  interpretation  of  Civil  Engineers  *  *  *  and  *  *  *."  File  2680G- 
33,  Sec.  Navy,  Nov.  9, 1909,  quoted  with  emphatic  approval  in  file  26251-12159.  Sec. 
Navy,  Dec.  9, 1916.  pp.  13-14.  See  also  C.  M.  O.  5, 1917. 

2.  Master-at-arms.   See  MASTER-AT-ARMS,  1. 

3.  Mates.  See  MATES,  8. 

4.  Petty  officers — The  accused  was  charged  with  "Assaulting  and  striking  his  superior 

officer  while  in  the  execution  of  the  duties  of  his  office,"  the  specification  alleging  that 
he  did  "assault  and  strike"  a  master-at-arms,  etc.  The  court  found  the  specification 
proved  but  not  guilty  of  the  charge  as  worded  on  the  grounds  that  a  "petty  officer" 
is  not  a  "superior  officer"  to  a  man  not  rated.  The  department  did  not  sustain  the 
contention  of  the  court,  and  the  finding  was  disapproved.  C.  M.  O.  31, 1908,  3. 

5.  Public  reprimand — Right  of  superior  officers  to  reprimand  subordinates.    See  PUBLIC 

REPRIMAND,  17. 

SUPERVISORY  NAVAL  EXAMINING  BOARDS.    See  PROMOTION,  190-192. 

SUPREME  COURT. 

1.  Officer — Commissioned  officer  of  Marine  Corps  acted  as  counsel  before.    See  COUNSEL,  52. 

2.  Rules  of  evidence.    See  EVIDENCE,  107. 

3.  Solicitor— Acted  as  counsel  before.    See  COUNSEL,  49,  52. 

SURGEONS.    See  also  MEDICAL  OFFICERS  OF  THE  NAVY. 

1.  Acting  assistant  surgeons.    See  ACTING  ASSISTANT  SURGEONS. 

2.  Dental  surgeons.    -See  DENTAL  SURGEONS. 

3.  Unprofessional  conduct.    C.  M.  O.  59,  1882.    See  also  C,  M.  O.  1, 1882,  3. 

SURGEON  GENERAL. 

1.  Promotion  of.    See  NAVAL  EXAMINING  BOARDS,  24. 

SURGICAL  OPERATIONS. 

1.  Amputation  of  arm.    See  AMPUTATION,  1. 

2.  Capital  operation.   See  SURGICAL  OPERATIONS,  6;  WORDS  AND  PHRASES. 

3.  Hernia— Not  compellable— An  officer  of  the  Marine  Corps  will  not  be  required  to  submit 

to  a  capital  operation  for  the  removal  of  a  physical  disability  which  involves  risk  of 
life.  The  department  so  held  in  the  case  of  an  officer  whose  disability  consisted  of 
"probable  intestinal  obstruction  which  originated  in  the  line  of  duty,  following  an 
operation  for  irreducible  right  inguinal  hernia."  File  26253-98,  J.  A.  G.,  May  17, 1910. 

4.  Major  operation.   See  SURGICAL  OPERATIONS,  6;  WORDS  AND  PHRASES. 

5.  Minor  operation.   See  SURGICAL  OPERATIONS,  6;  WORDS  AND  PHRASES. 

6.  Refusal  to  take— It  was  held  that  the  findings  of  a  retiring  board  in  the  case  of  an 

officer  that  "the  present  incapacity  of  *  *  *  is  due  to  the  fact  that  he  will  not 
submit  to  an  operation  recommended  by  responsible  medical  officers  of  the  Navy, 
and  is  therefore  not  the  result  of  an  incident  of  the  service"  should  be  disapproved. 

There  is  nothing  by  which  one  in  the  naval  service  can  be  compelled  against  his 
will  to  undergo  a  major  or  capital  operation.  But  it  is  otherwise  if  the  operation  be  a 
minor  one,  or  if  treatment  is  proposed. 

An  Army  officer  was  given  the  choice  of  resigning  or  submitting  to  a  radical  oper- 
ation for  hernia.  The  Navy  Department  has  held  otherwise  in  the  case  of  hernia. 
File  26253-98,  J.  A.  G.,  May  17,  1910. 

SURRENDER  OF  DESERTERS.    See  DESERTION,  102, 128-130. 

SUSPENSION  FROM  DUTY. 

1.  Bar  to  trial — Suspension  from  duty,  not  imposed  as  a  court-martial  sentence,  does  not 

bar  further  disciplinary  proceedings.    See  JEOPARDY,  FORMEB,  41,  42. 

2.  Breach  of  arrest.    See  SUSPENSION  FROM  DUTY,  6. 

3.  Full  pay.   See  SUSPENSION  FROM  DUTY,  11. 


SUSPENSION  FROM   DUTY.  623 

4.  Leave  of  absence — The  department  does  not  consider  favorably  a  part  of  a  sentence 

consisting  of  "three  months'  leave  of  absence"  with  the  full  pay  corresponding  to  that 
status,  particularly  as  such  action  would  necessitate  the  detail  of  another  officer  to 
perform  his  duty  while  he  was  permitted  to  remain  idle.  The  granting  of  such  leave 
is  a  privilege  which  would  not,  except  under  extraordinary  circumstances,  be  accorded 
by  the  department  to  any  officer  during  a  tour  of  sea  service.  C.  M.  0. 103, 1896, 1-2. 
See  also  ADEQUATE  SENTENCES,  15. 

5.  Leave  pay — As  extended  periods  of  severance  from  active  duty  are  calculated  to  im- 

pair the  efficiency  of  an  officer,  and  are  detrimental  to  the  interests  of  the  naval  service, 
the  department  remitted  that  part  of  a  general  court-martial  sentence  of  an  officer 
involving  suspension  from  duty  on  leave  pay.  C.  M.  O.  73, 1896,  2. 

6.  Limits  assigned — "An  officer  suspended  from  duty  shall  confine  himself  to  the  limits 

assigned  him  at  the  time  of  his  suspension  or  afterwards,  and  his  failure  to  do  so  shall 
be  regarded  as  a  breach  of  arrest."  (Navy  Regulations,  1913,  R-1418.)  J.  A.  G., 
June  7, 1915. 

7.  Midshipmen — Suspension  without  pay.    See  MIDSHIPMEN,  62. 

8.  Reduced  pay.    See  SUSPENSION  FROM  DUTY,  12. 

9.  Sentences — The  accused  was  sentenced  "to  be  suspended  from  rank  and  duty."    "In 

view  of  the  fact  that  suspension  from  rank  and  duty  for  three  months  as  provided  in 
the  sentence  would  operate  to  give  *  *  *  full  pay  during  that  time"  it  was 
remitted.  C.  M.  0. 34, 1907, 3, 4.  Seealso C.  M.  0. 8, 1909;  ADEQUATE  SENTENCES,  15. 

10.  Same— On  the  general  subject  of  suspension  from  duty  the  department  has  held  that 

it  is  not  a  substantial  punishment  and  contrary  to  the  policy  of  the  department. 
(C.  M.  O.  73.  1905;  75,  1905;  31,  1912;  32,  1912;  25,  1913;  7,  1914,  p.  13.)  C.  M.  O. 
13, 1915, 1.  Seealso  An.  Rep.  J.  A.  G.;  1893,  p.  8. 

11.  Same— As  to  suspension  from  duty  without  reduction  in  pay,  the  department  has 

stated  that  this  is  not  a  substantial  punishment;  and  that  it  "has  repeatedly  held 
that  its  effect  is  merely  to  relieve  the  officer  from  duty  without  consequent  reduction 
in  pay,  thereby  causing  a  positive  loss  to  the  Government.  (SeeC.  M.  Order  No.  25, 
1913,  and  precedents  cited  therein.)  Under  the  Navy  Regulations  an  officer  sus- 
pended from  duty  on  boari  ship  is  not  placed  in  confinement,  but  has  the  freedom  of 
practically  the  entire  vesselj  unless  greater  restraint  should  be  necessary  for  the 
safety  of  the  ship  or  otherwise.  (R-1419.)  In  the  present  case,  therefore,  the  sus- 
pension of  *  *  *  from  duty  was  rather  a  punishment  to  the  other  officers  of  the 
vessel,  who  had  to  perform  his  duty  in  addition  to  their  own,  while,  on  the  other 
hand,  he  received  full  pay  from  the  Government  although  rendering  no  services 
whatever  in  return  therefor."  (C.M.  O.7, 1914,  p.  13.)  C.  M.  0. 13, 1915, 2. 

12.  Same — As  to  suspension  from  duty  with  reduction  in  pay,  the  department  has  also 

held  that  it  "is  an  undesirable  form  of  punishment,  prejudicial  to  the  best  interests 
of  the  service,  and  contrary  to  the  policy  of  the  department"  (C.  M.  O.  73,  1905;  25, 
1913);  and  again,  "Neither  does  the  department  deem  it  desirable  to  impose  upon 
an  officer  a  sentence  providing  for  suspension  from  duty,  as  such  a  sentence  is  detri- 
mental to  the  interests  of  both  the  officer  and  the  Government,  since  the  officer  is 
probably  left  without  employment  and  the  Government  loses  his  services"  (C.  M.  O. 
31,1912;  32,1912;  25,1913).  "  The  sentence  as  adjudged  would  cause  a  positive  loss 
to  the  Government,  inasmuch  as  the  Government  would  receive  no  services  from 
the  accused  in  return  for  the  money  paid  him  during  the  operation  of  the  sentence." 
(C.  M.  O.  25, 1913,  p.  2.)  C.  M.  0. 13, 1915,  2. 

13.  Same— The  sentence  of  "to  be  suspended  from  rank  and  duty   *   *   *   to  receive 

during  said  period  one-half  of  shore  pay"  is  "inappropriate,  since  it  relegates  to 
idleness  for  two  years  an  officer  whose  services  are  needed,  and  throws  his  work  on 
others."  C.  M.  O.  67, 1902.  Seealso  C.  M.  O.  21,  1910, 17;  1,  1911,  3. 

14.  Same— "To  be  suspended  from  rank  and  duty  for  a  period  of  six  months,  on  one-half 

of  the  pay  he  would  receive  if  performing  duty  at  sea,  to  retain  his  present  number 
*  in  his  grade  while  so  suspended;  and  to  be  publicly  reprimanded  by  the  Secretary 
of  the  Navy."    C.  M.  0. 101, 1906.    SeealsoC.  M.  O.  90, 1903. 

15.  Same — "  To  be  suspended  from  duty  for  a  period  of   *    *    *    (*)  months  on  one-half 

(J)  shore-duty  pay."    C.  M.  O.  31, 1912;  32, 1912. 
Id.  Same— "Suspended  from  duty  on  three-quarters  shore-duty  pay."    C.  M.  O.  25,  1913. 

17.  Same — Sentences  of  officers  including  suspension  must  state  distinctly  whether  from 

rank  or  from  duty  only.    (R-816(l);  FORMS  OP  PROCEDURE,  1910,  p.  43.) 

18.  Swoid — When  an  officer  is  placed  under  suspension  it  is  not  necessary  or  proper  that 

he  be  required  to  deliver  his  sword  to  his  commanding  officer.    See  ARREST,  26,  39. 

50756°— 17 M 


C24  TARGET  PRACTICE. 

SUSPENSION   FROM   PROMOTION.    See   ADMINISTRATION,   4;    COMMISSIONS,  40; 
PROMOTION,  194-207. 

SUSPENSION  FROM  RANK  AND  DUTY.    See  SUSPENSION  FROM  DUTY,  9,  13, 14, 17 
SUSPENSION  OF  CIVIL  EMPLOYEES. 

1.  Without  pay.  See  File  26283-968,  Sec.  Navy,  Dec.  16,  1915;  26283-961,  Sec.  Navy. 
Dec.  21, 1915. 

SWEARING  FALSELY.    C.  M.  O.  47, 1910,  5.    See  also  FALSE  SWEARING;  PERJURT. 

SWEAT  BOXES. 

1.  Confinement  In— "No  rooms  hitherto  called  'sweat  boxes'  will  be  allowed  on  board 
any  vessel  of  the  Navy,  but  each  ship  will  have  a  proper  place  in  which  to  secure 
persons  sentenced  to  be  confined  according  to  law. 

"  No  room  for  this  purpose  will  be  smaller  than  a  stateroom  allowed  a  wardroom 
officer  in  a  sloop-of-war."  Circular,  Sec.  Navy,  Mar.  3, 1870. 

Prisoners  shall  not  be  confined  in  any  other  spaces  than  those  which  have  been 
designated  by  the  Navy  Department  as  prisons  or  spaces  proper  to  be  used  as  such. 
In  case  of  necessity,  extra  spaces  may  be  authorized  by  a  commander  in  chief  on  a 
foreign  station,  by  a  senior  officer  present,  or  by  the  commanding  officer  of  a  ship 
acting  singly,  and  the  medical  officer  of  the  ship  shall  be  called  upon  to  report  whether 
such  spaces  are  fit  for  prison  use.  ( R-1431  (1) . ) 

SWIMMING.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  18,  19,  21.  25.  28,  40, 
41,  60,  103. 

SWINDLING.    See  DEBTS,  16. 

SWORD. 

1.  Arrest  of  an  officer—  Delivery  of  sword.    See  ARREST,  26,  39. 

2.  Debts— Officer  tried  by  general  court-martial  for  leaving  his  sword  in  payment  of  debts. 

See  DEBTS,  28. 

3.  Suspension  from  duty— Not  necessary  that  officer  should  deliver  his  sword  to  his 

commanding  officer.    See  ARREST,  26;  SUSPENSION  FROM  DUTY,  18. 

SYSTEM  OF  DISCIPLINE. 

1.  Baron  Steuben— Adopted  by  Congress,  March  29,  1779.    File  8124-55,  J.  A.  G.,  Oct. 

17. 1916.    See  also  DISCIPLINE,  21. 

2.  Naval  militia— The  act  of  August  29,  1916  (39  Stat.,  599),  provides  "That  the  Naval. 

Militia  shall  be  subject  to  the  system  of  discipline  prescribed  for  the  United  States 
Navy  and  Marine  Corps,  *  *  *."  In  construction  of  the  words  "system  of  disci- 
pline "  as  used  therein,  the  Judge  Advocate  General  of  the  Navy  rendered  an  opinion 
to  the  effect  that  these  words  extend  to  the  Naval  Militia  of  the  States  the  provisions 
of  the  Regulations,  Articles  for  the  Government  of  the  Navy,  and  other  laws  relating 
to  the  Navy,  which  provide  for  training  and  general  rules  of  conduct,  but  do  not  ex- 
tend to  the  Naval  Militia  the  provisions  of  Regulations,  Articles  for  the  Government 
of  the  Navy,  and  other  laws  which  relate  to  the  administering  of  punishment.  In 
other  words,  the  expression  "system  of  discipline  "in  this  connection  refers  to  matters 
of  substantive  law — that  is,,  "the  positive  law  of  duties  and  rights" — as  distin- 
guished from  adjective  law,  or  "rules  of  procedure,"  intended  for  the  enforcement  of 
such  duties  and  rights.  Accordingly,  the  laws  and  regulations  of  the  Navy  which 
prescribe  the  system  of  training,  the  duties  and  rights,  and  the  general  rules  of  con- 
duct of  persons  in  the  Navy,  apply  to  the  Naval  Militia  under  the  above  clause  of  this 
statute;  but  not  the  laws  and  regulations  of  the  Navy  which  provide  for  the  enforce- 
ment of  discipline  by  means  of  punishment.  File  8124-55,  J.  A.  G.,  Oct.  17,  1916; 
C.  M.  0. 37, 1916, 11.  See  also  DISCIPLINE,  20. 

TACTICAL  SIGNAL  BOOKS.   See  BATTLE,  1;    BOOKS,  6;   CONFIDENTIAL  PUBLICA- 
TIONS, 3. 

TARGET  PRACTICE. 

1.  Within  marine  league  of  the  coast  of  Japan — The  commanding  officer  of  a  naval 
vessel  was  tried  by  general  court-martial  under  the  charge  of  "Neglect  of  duty"  for 
holding  target  practice  within  the  marine  league  of  Japan  without  securing  permission 
from  the  Japanese  Government.  Fired  at  a  target  erected  within  50  yards  of  shore 
without  ascertaining  whether  such  firing  would  endanger  lives.  He  also  departed 
without  being  certain  that  the  shells  had  all  exploded.  Accused  was  acquitted,  but 
department  commented  in  strong  language,  disagreeing  with  the  court.  C.  M.  O. 
41, 1888. 


TARGET  PRACTICE.  625 

2.  Same— In  the  above  case  the  department  stated,  in  part:  "The  department  can  not 
assent  to  the  view  that  a  naval  officer  may,  without  blame,  hold  his  target  practice 
upon  the  soil  of  a  friendly  power  without  consulting  such  power,  and,  wnere  he 
actually  imperils  life  by  the  flight  of  the  projectiles,  without  the  previous  examination 
which  would  have  disclosed  such  peril,  and  that  he  may  sail  away,  with  his  full  duty 
discharged,  leaving  six  unexploded  projectiles  to  endanger  innocent  lives."  C.  M.  O. 
41,  1888,  10. 

TARGET  BAFTS. 

1.  Adrift — An  officer  was  triev.  oy  general  court-martial  for  negligently  permitting  a  target 
raft  to  get  adrift  and  not  making  raft  visible  by  means  of  signals  or  lights.  C.  M.  O. 
11, 1911, 1. 

TAXATION. 

1 .  "Office"— The  "office  "  of  an  officer  of  the  United  States  can  not  be  taxed.    File  9212-22, 

J.  A.  G.,  Feb.  21, 1912. 

2.  Personal  property— Of  naval  officers  at  Naval  Proving  Ground,  Indianhead,    Md. 

File  9212-72,  J.  A.  G..  Apr.  19, 1916. 

3.  Poll  taxes.   See  POLL  TAXES. 

4.  Property  taxes.   See  File  26252-330:a  and  b. 

5.  Service  pensions.   See  JURISDICTION,  127. 

6.  United  States  property— Taxation  by  States  of  automobiles  owned  by  the  Federal 

Government.    See  AUTOMOBILE,  3. 

TECHNICAL  «  BREAKING  ARREST."    See  BREAKING  ARREST,  11. 

TECHNICAL  DEFENSE. 

1.  Department — States  that  the  defense  of  the  accused  was  entirely  technical.  It  carefully, 
and  upon  unsound  pretexts,  evaded  an  issue  which  the  accused  should  have  hastened 
to  face,  if  he  had  been  guiltless  of  offenses  which  so  seriously  affected  his  character  as 
an  officer  and  a  gentleman.  Although  its  sophistries  would  not  for  a  moment  have 
embarrassed  the  decision  of  an  ordinary  court  of  justice  in  the  case,  they  seem  to  have 
prevailed  before  the  court-martial;  and  its  judgment  is  characterized  by  extraordi- 
nary leniency.  C.  M.  0. 20, 1881.  See  also  C.  M.  O.  22, 1883;  OFFICERS,  88, 116;  TECH- 
NICAL PLEAS. 

TECHNICAL,  EMBEZZLEMENT.    See  EMBEZZLEMENT,  25,  30. 

TECHNICAL  ERRORS. 

1.  Charges  and  specifications.  See  CHAR  ES  AND  SPECIFICATIONS,  33, 34;  DEMUR- 
RER, 6. 

TECHNICAL  PLEAS. 

1.  Officer's  defense— Officer  criticized.    See  OFFICERS,  88,  116;  TECHNICAL  DEFENSE. 

TECHNICALITIES.    See  also  WORDS  AND  PHRASES. 

1.  Court  of  inquiry — Technical  irregularities  in.    File  4865-19,  Sec.  Navy,  July  8,  1907. 

2.  Court-martial  procedure — Technicalities  should  not  be  introduced  into  naval  court- 

martial  procedure,  etc.    See  COMMON  LAW,  12;  CORPUS  DELICTI,  2. 

3.  Defeat  justice — Technicalities  should  never  be  used  to  defeat  justice  or  confuse  pro- 

cedure.   See  COMMON  LAW,  12;  CORPUS  DELICTI,  2. 

TECHNICALLY  GUILTY. 

1.  Fraudulent  enlistment,  of.    C.  M.  0. 12, 1911,  5. 

TELEGRAMS. 

1.  Desertion — Evidence  in  proving  "Desertion."    C.  M.  O.  110, 1896,  3. 

2.  Evidence,  as.    C.  M.  0. 110, 1896,  3;  G.  C.  M.  Rec.  30684,  p.  303. 

3.  Member  of  a  general  court-martial — Appointed  by  telegram,  which  was  read  aad 

appended.    C.  M.  O.  56,  1897,  2. 

4.  Nolle  prosequi— Entered  by  telegram.    See  NOLLE  PROSEQUI,  8. 

TELEGRAPHY,  WIRELESS.    See  WIRELESS  TELEGRAPHY,  1. 
TEMPER,  LOSS  OF,  BY  OFFICER.    See  OFFICERS,  117. 


626  THEFT. 

TEMPORARY  APPOINTMENTS. 

1.  Acting  assistant  dental  surgeon.    See  ACTING  ASSISTANT  DENTAL  SURGEONS. 

2.  Major  general  commandant.    See  MARINE  CORPS,  48. 

TEN  COMMANDMENTS.    See  SUNDAY  LAWS. 
TENURE  OF  OFFICE.    See  "OFFICE,"  3. 

TERRITORIES. 

1.  Jurisdiction  of  the  courts  In.    File  3818,  Juno  27, 1906.    See  also  26  Op.  AUy.  Gen.,  91. 

TESTIMONY.    See  EVIDENCE. 

TEXT  BOOKS. 

I.  Arguments — Use  of  text  books  in  arguments  before  Naval  courts-martial.    See  G.  •. 

M.  Rec.  23037,  p.  89;  ARGUMENTS,  l;  EVIDENCE,  DOCUMENTARY,  57. 

THANKS  OF  CONGRESS.    See  CONGRESS,  8-10. 

THEFT.    See  also  LARCENY;  WORDS  AND  PHRASES  (LARCENY). 

1.  Aiding  and  abetting.    See  AIDING  AND  ABETTING,  5,  6. 

2.  Burden  of  proof.    See  BURDEN  OF  PROOF,  9;  THEFT,  17. 

3.  Corpus  delicti.    See  CORPUS  DELICTI,  1, 2. 

4.  Drunkenness  as  a  defense.    See  DRUNKENNESS,  20,  22,  26,  49,  51,  52,  56, 88;  STATE- 

MENT OF  ACCUSED.  16. 

5.  Embezzlement  and  theft— Distinguished.    G.  O.  143,  Oct.  28,  1869. 

6.  Enlisted  man— Charged  with.    C.  M.  O.  42, 1909,  3, 9;  49, 1910,  6;  1, 1913,  5;  20, 1913, 

4;  9,  1914,3;  49,  1915,21. 

7.  "  Feloniously  "—Meaning   of  "feloniously"    in   a   statute    defining   larceny.    See 

FELONIOUSLY. 

8.  Haitian— Native  Haitian  held  on  a  charge  of  theft.    See  MANSLAUGHTER,  9. 

9.  Intent — Necessary  to  prove  specific  intent  in  theft,  which  is  same  as  larceny  and  steal- 

ing.   See  DRUNKENNESS,  49, 88, 89;  INTENT,  5,  42,  49. 
10.  Larceny— Same  as  "Theft."    See  THEFT,  9. 

II.  Officer— Charged  with.    C.  M.  O.  50. 1914. 

12.  Ownership  of  stolen  property — Either  legal  owner  or  one  in  possession  may  be 

named  as  owner  in  a  specification.    See  THEFT,  22. 

13.  Paymaster's  clerk— Charged  with.    C.  M.  0. 14, 1907. 

14.  Prima  facie— Cases  of  theft.    C.  M.  O.  42,  1909,  3;  49. 1910,  6;   1,  1913,  6. 

15.  Same — Proof  of  possession  of  stolen  articles  establishes  a  prima  facie  case  of  theft. 

C.  M.  O.  49, 1910,  6. 

16.  Same — The  possession  of  stolen  property  or  articles  recently  after  the  commission 

of  the  theft  is  prima  facie  evidence  of  guilty  possession,  and  if  unexplained  either  by 
direct  evidence  or  by  the  attending  circumstances,  or  by  the  character  and  habits  of 
thepossessor  or  9therwise,  it  is  taken  as  conclusive.  C.  M.  0. 1, 1913, 6. 

17.  Proof  of —Where  it  was  proved  that  the  accused  was  in  possession  of  stolen  property  a 

short  tune  after  it  was  stolen,  Held,  prima  facie  case  against  him  of  theft,  and  the 
burden  of  proof  was  shifted  to  the  accused  to  show  that  the  possession  was  not  unlaw- 
ful, and  upon  failure  to  do  so  court  should  find  him  guilty.  A  continued  possession 
of  stolen  property  and  no  effort  made  to  return  same  to  owner  shifts  burden  of  proof 
to  defense  to  show  that  possession  was  an  innocent  one,  and  where  such  was  not  done 
the  department  held  that  the  court  should  have  found  accused  guilty  of  theft.  .  C.  M.  O. 
42, 1909, 3-4;  49, 1910,  6.  See  also  G.  C.  M.  Rec.  No.  22342;  C.  M.  0. 17, 1910, 11. 

Without  an  asportation,  there  can  be  no  larceny.  This  asportation  consists  in  re-' 
moving  the  property  from  the  place  where  it  was  before,  it  need  not  be  actually  car- 
ried away,  and  the  slightest  asportation  is  all  that  is  necessary  (12  A.  &  E.  Ency,  Law, 
7ft3).  File  7879-02,  J.  A.  G.,  Sept.  20,  1902;  21  J.  A.  G.,  105. 

18.  Restitution.    C.  M.  O.  20, 1913,  4. 

19.  Restitution  of  money  stolen,  from  pay  of  thief  who  deserted— Where  a  deserter 

absconded  with  a  considerable  sum  of  money  belonging  to  the  ship's  cook,  and  in- 
tended for  the  purchase  of  provisions,  it  was  held  that  there  is  no  legal  authority 
under  which  pay  due  the  deserter  at  the  time  he  absconded  could  be  used  to  reimburse 
the  persons  who  suffered  loss  by  the  theft.  See  File  10988-02;  3852-02.  See  also 
Compt.  Dec.,  Apr.  22,  1902. 

20.  Robbery — Theft  distinguished  from  robbery.    See  ROBBERY,  9. 


THEFT.  627 

21.  Specific  Intent.   See  DRUNKENNESS,  49, 88, 89;  INTENT,  7,  42,  49;  THEFT,  9. 

22.  Specifications— Allegations  of  title— In  certain  specifications  underachargeof  "Theft" 

in  a  recent  case,  the  ownership  of  the  property  alleged  to  have  been  stolen  was  laid 
in  the  persons  in  whose  possession  the  property  was  at  the  time  it  was  stolen.  The 
court  in  its  findings  made  certain  exceptions  and  substitutions  so  that  the  specifica- 
tions as  thus  amended  showed  the  legal  ownership  of  the  property.  The  rule  is  well 
settled  that  the  ownership  may  be  laid  in  indictments  in  the  person  who  was  in 
peaceable  possession  of  the  property,  and  whose  possession  was  unlawfully  disturbed 
by  the  taking;  that  the  actual  condition  of  the  legal  title  is  immaterial  to  the  thief; 
that  even  a  thief  in  possession  may  be  described  as  owner  when  goods  have  been 
stolen  from  him  by  a  second  thief.  (25  Cyc..  89, 90.)  However,  it  is  optional  to  name 
the  true  owner  as  such  in  the  indictment,  although  the  property  was  in  the  possession 
of  another.  (25  Cyc.,  91.)  These  principles  apply  equally  to  the  allegations  of 
ownership  in  specifications  tried  by  courts-martial,  and  were  observed  in  preparing 
the -charges  and  specifications  in  this  case.  However,  the  action  of  the  court  .in 
making  the  exceptions  and  substitutions  referred  to,  while  not  necessary,  is  not 
objectionable  and  conduces  to  accuracy  by  amending  the  specifications  so  as  to 
conform  precisely  to  the  actual  facts  disclosed  by  the  evidence.  G.  C.  M.  Rec.  No. 
29422;  File  26251-9280;  C.  M.  O.  51, 1914,  9-10. 

23.  Thief— Should  not  be  retained  in  naval  service.    See  THIEF,  1. 

24.  Same — Tagged  "Thief"— No  former  jeopardy.    See  JEOPARDY,  FORMER,  43. 

25.  Title— Allegations  of  title  of  stolen  goods  in  specification.    See  THEFT,  22. 

THEFT,  IN  VIOLATION  OF  CLAUSE  1  OF  ARTICLE  8  OF  THE  ARTICLES 
FOR  THE  GOVERNMENT  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  0. 15, 1908, 2. 

THEFT,  IN  VIOLATION  OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOV- 
ERNMENT OF  THE  NAVY. 

1.  Gunner— Charged  with.    C.  M.  0. 8, 1879. 

THIEF. 

1 .  Naval  service — Should  not  be  retained  in — The  best  interests  of  the  naval  service  demand 
that,  whatever  the  mitigating  circumstances,  a  man  who  has  been  found  guilty  of 
theft  shall  not  be  retained  therein.  C.  M.  O.  66, 1S94,  2. 

2 


He  was  sentenced  to  confinement  at  hard  labor  for  a  period  of  one  year  with  corre- 
sponding forfeiture  of  pay,  and  to  dishonorable  discharge. 

The  convening  authority  in  approving  the  sentence  mitigated  the  confinement  to 
detention,  thus  providing  a  means  whereby  a  self-confessed  thief  might  effect  his 
restoration  to  duty  in  an  honorable  status  in  the  naval  service. 

The  Manual  for  Government  of  Naval  Prisons,  Prison  Ships,  and  Disciplinary 
Barracks,  page  1  of  the  Addenda,  etc.,  limits  the  mitigation  of  sentences  of  confine- 
ment t9  detention  to  cases  of  men  convicted  of  "purely  military  offenses."  The 
mitigation  of  sentences  involving  confinement  to  detention  in  cases  of  men  convicted 
of  "Theft"  is  in  direct  conflict  with  the  department's  policy  and  precedents  which 
exclude  all  persons  convicted  of  "  Theft "  from  being  placed  in  detention  among  boys 
under  21  years  of  age  who  have  been  placed  in  detention  for  "purely  military  offenses." 

In  accordance  with  the  recommendation  of  the  Bureau  of  Navigation  and  in  order 
that  the  interests  of  justice  and  discipline,  and  particularly  the  standard  maintained 
among  detentioners  may  not  suffer  by  this  action,  the  department  remitted  the 
confinement,  etc.,  and  directed  the  discharge  of  the  accused  in  accordance  with  the 
remaining  terms  of  the  sentence.  File  26262-2440,  Sec.  Navy,  Dec.  20, 1915;  C.  M.  O. 
49,  1915,  21-22. 
3.  Tagged  "  thief  "—No  former  jeopardy.  See  JEOPARDY,  FORMER,  43. 

THREATENING  AND  ATTEMPTING  TO  ASSAULT  HIS  SUPERIOR  OFFICER 
WHILE  IN  THE  EXECUTION  OF  THE  DUTIES  OF  HIS  OFFICE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  23, 1910, 5. 

THREATENING  AND  PROFANE  LANGUAGE. 

1.  Massachusetts  statutes.    File  26251-2993:12. 

THREATENING  LETTERS.    See  OFFICERS,  118;  PRIVILEGE,  3. 


628  TIME. 

THREATENING  TO  COMMIT  SUICIDE  WHILE  DRUNK. 

1.  Boatswain— Charged  with.    C.  M.  0. 60, 1888,  2. 

THROUGH  INATTENTION  AND  NEGLIGENCE  SUFFERING  A  VESSEL  OF 
THE  NAVY  TO  BE"  HAZARDED. 

1.  Officer— Charged  with.    C.  M.  O.  19, 1910. 

THROUGH  INATTENTION  AND  NEGLIGENCE  SUFFERING  A  VESSEL   OF 
THE  NAVY  TO  BE  RUN  UPON  A  SHOAL. 

1.  Officer— Charged  with.    C.  M.  O.  31, 1907;  32, 1913, 1. 

THROUGH  INATTENTION  AND  NEGLIGENCE  SUFFERING  A  VESSEL  OF 
THE  NAVY  TO  BE  RUN  UPON  A  SHOAL  AND  SERIOUSLY  INJURED. 

1.  Officers— Charged  with.    C.  M.  0. 17, 1913;  2, 1914;  29, 1916. 

THROUGH  INATTENTION  AND  NEGLIGENCE  SUFFERING  A   VESSEL    OF 
THE  NAVY  TO  BE   SERIOUSLY  INJURED. 

1.  Officer— Charged  with.    C.  M.  O.  31, 1916. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
HAZARDED. 

1.  Officers— Charged  with.    C.  M.  O.  82,  1906;  26.  1908. 

2.  Warrant  officer— Charged  with.    C.  M.  0. 15, 1912,  6. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
RUN  UPON  A  REEF. 

1.  Officer— Charged  with.    C.  M.  O.  9, 1911. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
RUN  UPON  A  REEF  AND  STRANDED. 

1.  Officers— Charged  with.    C.  M.  O.  32,  1894;    29,  1903;  25,  1909;  26,  1909;  G.  C.  M.  Re«. 
11192. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
RUN  UPON  A  ROCK  AND  GROUNDED. 

1.  Officer— Charged  with  C.  M.  O.  15, 1905. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
RUN  UPON  A  ROCK  AND  HAZARDED. 

1.  Officer— Charged  with.    C.  M.  O.  7,  1893. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
RUN  UPON  A  SHOAL. 

1.  Officer— Charged  with.    C.  M.  O.  43,  1906;  53,  1906;    3,  1907;  36,  1908;  1,  1909;  29,  1909; 
30, 1909;  17,  1913;  G.  C.  M.  Rec.  12965;  C.  M.  O.  19, 1917. 

THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY  TO  BB 
STRANDED. 

1   Officers— Charged  with.    C.  M.  0. 60, 1889;  29, 1891;  111,  1894;  50, 1903;  2, 1915;  23, 1916; 
26,  1916. 

THROUGH    NEGLIGENCE     SUFFERING     PROPERTY     OF     THE     UNITED 
STATES   TO  BE  HAZARDED. 

1.  Officer— Charged  with.    C.  M.  O.  26, 1908. 

TIME. 

1.  Absence,  unauthorized — Allegation  of  period  of  absence  in  specification.    See  AB- 

SENCE, 10,  11;  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29;  CHABGES 
AND  SPECIFICATIONS,  92. 

2.  Burglary.   See  BURGLARY,  7. 

3.  Commission  ol  offenses— Time  of,  should  be  alleged.    See  CHARGES  AND  SPECIFICA- 

TIONS, 92;  FINDINGS,  27,  32,  33,  35. 

4   Specification— When  time  is  material.    See  ABSENCE,  10, 11;  ABSENCE  FROM  STATION 
AND  DUTY  WITHOUT  LEAVE,  29;  CHARGES  AND  SPECIFICATIONS,  92;  FINDINGS,  27, 

no     V>     Qtj 

5.  Statute'oi  limitations— Time  alleged  so  that  offense  will  come  within.    See  FIND- 
INGS, 35. 


TREATIES.  C2t 

TITLES. 

1.  "Admiral"— Under  the  Navy  usage  the  temporary  title  of  rear  admiral  follows  the  tem- 

porary rank  and  pay  in  the  case  of  a  line  officer,  because,  unlike  the  staff  officer,  he  is 
at  all  times  in  the  military  and  command  branch  of  the  service,  to  which  alone  th« 
ancient  title  of  admiral  appertains.  (25  Op.  Atty.  Gen.  297,  Dec.  20.  1904;  13  J.  A.  G., 
394,  Dec.  28,  1904.) 

2.  Army  rule— Respecting  titles.    File  13-4,  J.  A.  G.,  May  22, 1907. 

3.  Chiefs  of  bureaus.    See  BUREAU  CHIEFS,  19. 

4.  Controversy — Brief  history  of  controversy  regarding  titles.    See  BUREAU  CHIEFS,  19. 

5.  Correspondence.    See  DESIGNATIONS. 

6.  Court-martial  orders.    See  COURT-MARTIAL  ORDERS,  38. 

7.  Deck  court  officers.    See  TITLES,  13. 

8.  Line  officers — Only  line  officers  have  title  as  well  as  rank,  etc.    See  RANK,  17. 

9.  Line  and  staff— Title  and  rank  as  between  line  and  staff.    See  File  22724-16:1,  J.  A.  G.. 

Apr.  24, 1911,  p.  4. 

10.  Members  of  courts-martial — Error  in  title  in  precept.    See  CHALLENGES,  15. 

11.  Officers— Should  be  addressed  by  titles.    13  J.  A.  G.,  254.    See  also  DESIGNATIONS. 

12.  Statutes.    See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  121. 

13.  Summary  cpurt-martlal  and  deck  courts — Titles  to  be  used  by  certain  command- 

ing o (fleers  in  convening  summary  courts-martial  and  deck  courts.  File  20287-1183, 
J.  A.  G.,  May  4, 1912. 

14.  Theft — Allegations  of  title  of  stolen  property  in  specifications.    See  THEFT,  22. 

TORPEDO  BOATS. 

1.  Commanders — "Nerve"  is  a  prime  requisite,  etc.    See  COLLISION,  6. 

2.  Confinement— In  fire  room  of  a  torpedo  boat.    See  CONFINEMENT,  44. 

TRANSFERS. 

1.  Coast  Guard— Transfer  of  vessel.    See  COAST  GUARD,  3. 

2.  Fleet  Naval  Reserve — Transfer  of  enlisted  men  to  Fleet  Naval  Reserve.    C.  M.  O.  4t, 

1916,  4. 

3.  Marine  Corps  to  Hospital  Corps.    File  3976-02;  9033-02;  5315-04,  Sec.  Navy,  July 

5, 1904. 

TRANSFER  CLOTHING  ACCOUNTS. 

1.  Evidence,  as.    C.  M.  O.  15,  1910,  8-9. 

TRANSPORTS. 

1.  Army — Army  courts  and  courts-martial  have  no  jurisdiction  over  Marines  on  Army 
transports.    See  ARMY,  7. 

TRANSPORTATION. 

1.  Applicants  for  enlistment.    See  NAVAL  RESERVE,  6. 

2.  Minor  may  waivfr— A  minor  enlisting  with  the  consent  of  his  guardian  has  the  sam« 

right  as  other  enlisted  men  of  the  Navy  to  enter  into  agreement  to  waive  transportation 
and  to  reenlist.  File  4682-04,  J.  A.  G.,  May  31, 1904. 

3.  Naval  Reserves.    See  NAVAL  RESERVE,  6. 

4.  Retired  enlisted  men.    See  RETIRED  ENLISTED  MEN,  13,  U. 

5.  Witnesses,  Marine.    See  WITNESSES,  108. 

TREATIES. 

1.  Amity  and  commerce.    See  TREATIES,  3. 

2.  Date— "As  respects  property  rights  and  the  performance  of  undertakings  between 

individuals,  the  courts  have  held  that '  the  date  of  a  treaty  is  the  date  of  its  final  rati- 
fication.' (Wheaton's  International  Law,  vol.  2,  sec.  132.) 

"According  to  the  same  authority,  it  is,  however,  a  principle  of  international  law 
that  'so  far  as  concerns  the  relations  of  the  sovereigns  concerned,  it  operates,  when 
ratified,  from  the  date  of  its  signature.'"  File  26516-47,  J.  A.  G.,  May  18, 1911,  p.  3. 

3.  Desertion — Desertion,  per  se,  and  unassociated  with  felony,  is  not  included  in  the 

category  of  crimes  commonly  enumerated  in  treaties  or  conventions  of  extradition. 
In  the  past  it  has  been  considered  in  numerous  treaties  and  conventions  with  foreign 
countries,  but  invariably  in  connection  with  the  rights  and  privileges  of  consular 
officers  as  provided  in  treaties  of  Amity  and  Commerce.  Extradition  treaties  concern 
crimes  only.  File  27403-132:1,  J.  A.  G.,  Jan.  6,  1916. 

4.  Same— Japan.    File  27403-132:1,  J.  A.  G.,  Nov.  6,  19!6,  and  Jan.  6, 1916. 

5.  Same— Greece.    File  27403-132:1,  J.  A.  G.,  Nov.  6, 1916,  and  Jan.  6, 1916. 


030  TREATIES. 

6.  Same — If  any  person  belonging  to  the  Navy  or  Marine  Corps  charged  with  crime  deserts 

in  the  waters  of  any  foreign  state  between  which  and  the  United  States  a  treaty  of 
extradition  for  the  apprehension  and  delivery  of  persons  charged  with  crime  exists, 
the  senior  officer  present  shall  take  measures  for  his  recovery  in  accordance  with  the 
provisions  of  such  treaty. 

In  no  case  shall  force  DO  used  to  recover  deserters  within  foreign  territorial  limits 
or  on  board  foreign  ships.    (R-3642.)    See  File  27403-132:1,  J.  A.  G.,  Nov.  6, 1916,  p.  5. 

7.  Greece— Extradition  of  deserters.    File  27403-132:1,  J.  A.  G.,  Nov.  6,  1916. 

8.  Japan.    See  File  27403-132:1,  J.  A.  G.,  Nov.  6,  1916. 

9.  Larceny — Larceny  is  an  extraditable  crime  within  the  purview  of  existing  treaties  and 

for  which  extradition  may  be  requested  with  competent  right  and  propriety.  File 
27403-132:1,  J.  A.  G..  Nov.  6  1916.  p.  5. 

10.  Merchant  vessels  of  the  United  States — So  far  as  lies  within  their  power,  com- 

manders in  chief,  division  commanders,  and  commanding  officers  of  ships  shall 
protect  all  merchant  vessels  of  the  United  States  in  lawful  occupations,  and  advance 
the  commercial  interests  of  this  country,  always  acting  in  accordance  with  inter- 
national law  and  treaty  obligations.  (R-1650.) 

11.  Neutrals  In  tune  of  war.   See  TREATIES,  13. 

12.  Seaman's  Act  of  March  4, 1915  (38  Stat.  1164)— Abrogating  effect  of  the  Seaman's 

Act  upon  treaties.    File  27403-132:1,  Sec.  Navy,  Jan.  6,  1916. 

13.  War — When  the  United  States  is  at  war,  the  commander  in  chief  shall  require  all  under 

his  command  to  observe  the  rules  of  humane  warfare  and  the  principles  of  international 
law.  When  dealing  with  neutrals  he  shall  cause  all  under  his  command  to  observe 
the  rules  of  international  law  and  the  stipulation  of  treaties,  and  expect  and  exact 
a  like  observance  from  others  (R-1634). 

TREATING  HIS  COMMANDING  OFFICER  WITH  DISRESPECT. 

1.  Officer— Charged  with.    G.  C.  M.  Rec.  6809. 

TREATING  HIS  SUPERIOR  OFFICER  WITH  CONTEMPT  WHILE  IN  THE 
EXECUTION  OF  HIS  OFFICE. 

1.  Gunner— Charged  with.    C.  M.  O.  1, 1893. 

2.  Officer— Charged  with.    C.  M.  O.  33, 1896. 

TREATING  WITH  CONTEMPT  HIS  SUPERIOR  OFFICER. 

1.  Officer— Charged  with.    C.  M.  O.  51, 1882. 

TREATING  WITH  CONTEMPT  HIS  SUPERIOR  OFFICER  AND  BEING  DIS- 
RESPECTFUL TO  HIM  IN  LANGUAGE  AND  DEPORTMENT  WHILE 
IN  THE  EXECUTION  OF  HIS  OFFICE. 

1.  Master— Charged  with.    C.  M.  O.  21, 1882. 

2.  Officers— Charged  with.    C.  M.  0. 15, 1914;  G.  C.  M.  Rec.  6404;  6486. 

TREATING  WITH  CONTEMPT  HIS  SUPERIOR  OFFICER  AND  BEING  DIS- 
RESPECTFUL TO  HIM  IN  LANGUAGE  AND  DEPORTMENT  WHILE 
jy  THE  EXECUTION  OF  HIS  OFFICE,  IN  VIOLATION  OF  ARTICLE  8, 
ARTICLES  FOR  THE  GOVERNMENT  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  28, 1908. 

TREATY  OF  PEACE  WITH  SPAIN.    See  also  WAK  WITH  SPAIN,  4. 

1.  Ratified— On  April  11, 1899.    File  26516-47,  J.  A.  G.,  May  18, 1911;  C.  M.  O.  49, 1915, 24. 

See  also  FILIPINOS,  3. 

2.  Signed— On  December  10,  1898.    File  26516-47,  J.  A.  G.,  May  18,  1911.    See  also  DE- 

SERTION, 133. 

TRESPASSING.    See  LINK  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  104, 105. 
TRIALS.    See  also  SPEEDY  TRIALS. 

1.  Accused— Responsible  to  notify  interested  parties.    See  ACCUSED,  61;  CHARGES  AND 

SPECIFICATIONS,  18. 

2.  Army.    See  ARMY,  29;  COURT,  171. 

3.  Careless.    C.  M.  O.  74, 1899. 

4.  Civil  authorities— Date  fixed  for  trial  of  enlisted  men  desired  by  civil  authorities 

should  be  shown  in  requisition.    See  CIVIL  AUTHORITIES,  46. 

5.  Congress— Recommended  the  trial  by  general  court-martial  of  a  naval  officer.    See 

CONGRESS,  11. 


TRIALS.  631 

6.  Courts  of  Inquiry— Not  trials.    See  COURTS  OF  INQUIRY,  51. 

7.  Delay  in  commencing — Delay  that  may  be  allowed  accused  to  arrange  for  counsel 

and  prepare  defense  is  matter  within  the  discretion  of  the  court,  to  be  determined 
afterhearing  the  reason  for  the  delay  requested.  File  26504-111:3.  Seealso  ARMY,  13; 
CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17;  CONTINUANCES,  1;  COUNSEL,  20;  COURT,  134; 
POSTPONEMENT. 

8.  Delay  over  1O  days— Reports  of  cases.    See  JUDGE  ADVOCATE,  112;  SPEEDY  TRIALS,  2. 

9.  Expedition — The  department  is  anxious  to  reduce  by  every  practicable  means  the  time 

between  the  arrest  of  a  prisoner  and  the  final  promulgation  of  the  sentence.  File 
26504-111:329,  Sec.  Navy,  May  4, 1915.  See  also  SPEEDY  TRIALS,  2. 

10.  "Fair  trial" — In  reviewing  a  court-martial  it  is,  as  a  rule,  easy  to  determine  whether 

or  not  there  has  been  a  fair  trial.  Every  word  spoken  and  every  act  done  in  con- 
nection with  the  proceedings  of  the  court  is  duly  recorded.  13  J.  A.  G.,  325,  June 
11. 1904.  See  also  EVIDENCE,  13. 

11.  Full  power  trial  of  a  naval  vessel— Boilers  exploded.    C.M.  O.  36, 1915;  37, 1915;  38, 

1915. 

12.  Insane  accused.   See  INSANITY,  19,  32,  41. 

13.  Joinder— Trials  in  joinder.    See  JOINDER,  TRIAL  IN. 

14.  Jurisdiction  of  naval  courts-martial— Over  the  personnel  of  the  naval  service 

after  expiration  of  enlistment.  See  BREAKING  ARREST,  3;  ENLISTMENTS,  8-11; 
JURISDICTION,  52,  97. 

15.  Jury— Trials  by  jury  are  not  required  in  the  naval  service.    See  JURY,  6. 

16.  Members  of  courts-martial  may  demand  trial — Where  the  convening  authority 

of  a  naval  court-martial  feels  that  an  individual  member  of  a  court-martial  is  deserving 
of  severe  strictures  and  criticism  for  his  actions  while  serving  as  a  member  he  should 
prefer  or  cause  to  be  preferred  charges  against  them.  In  cases  where  such  is  not 
done,  but  severe  criticism  is  made,  if  the  party  reflected  upon  demands  a  trial  by 
court-martial  for  the  misconduct  imputed,  his  application  can  not  in  general  fairly 
be  denied.  See  CRITICISM  OF  COURTS-MARTIAL,  35,  36. 

17.  Midshipmen— Subject  to  trial.    See  MIDSHIPMEN,  22,  27,  32,  35,  67,  88. 

18.  Multiplicity  of  trials.   See  SUMMARY  COURTS-MARTIAL,  49;  TRIALS,  26. 

19.  Public  trial.   See  COURT,  126-128;  JUDGE  ADVOCATE.  105. 

20.  Record  of  proceedings— The  fact  that  the  trial  is  finished  should  invariably  be  noted 

in  the  record  of  a  general  court-martial.    C.  M.  O.  14, 1910,  9. 

21 .  Second  trial — Where  the  court  on  motion  by  counsel  for  the  accused  strikes  out  a  charge 

and  specification  because  it  "alleged  seven  distinct  and  separate  offenses,"  the  accused 
"may  still  be  tried  for  the  offenses  stated  therein"  inasmuch  as  the  charge  and  specifi- 
cation in  question  were  stricken  out  as  invalid.  C.  M.  0. 16, 1911,  4.  Seealso  JEOP- 
ARDY, FORMER,  36, 38. 

22.  Same^In  criticizing  several  deck  court  cases  the  department  stated  in  part:   "It  is 

manifest  that  failure  to  set  forth  in  each  specification  the  name  and  rate  of  the  accused, 
the  offense  and  the  date  of  the  commission  thereof,  and  all  other  material  facts  con- 
nected with  the  offense  not  only  militates  against  the  accused,  but  makes  possible 
a  second  trial  for  the  same  offense."  C.  M.  O.  42, 1909, 16. 

23.  Secrecy.    See  COURT,  126-12S,  171. 

24.  Set  aside.   See  SETTING  ASIDE,  16. 

25.  Speedy  trials.    See  SPEEDY  TRIALS. 

26.  Summary  courts-martial— Multiplicity  of  trials.    See  SUMMARY  COURTS-MARTIAL, 

49. 

27.  "Undue  haste."    See  COUET,  171;  CRITICISM  OF  COURTS-MARTIAL,  66. 

TRIAL  COURSES. 

1.  Rockland  and  Provtacetown— In  the  matter  of  buying  land  and  placing  permanent 
beacons  to  mark  the  trial  courses  at  Rockland  and  Provincetown.  File  186-92  and 
1906-8  and  9,  J.  A.  G.,  Jan.  17, 1907. 

"TRICING  UP;" 

1.  Illegal  punishment — An  acting  master  was  dismissed  for  inflicting  illegal  punishment, . 
by  "tricing  up"  it  appearing  that  he  was  aware  at  the  time  of  inflicting  such  punish- 
ment that  it  was  unauthorized  by  law.  G.  O.  No.  2,  Jan.  12, 1863. 

TRUCE.    See  WAR,  3-5. 

"TRUE  COPIES."    See  CERTIFIED  COPIES,  1,  2;  EVIDENCE,  DOCUMENTARY,  10, 58. 


632  UNDESIRABLE   DISCHARGE. 

TRUMPETER,  U.  S.  MARINE   CORPS. 
1.  General  court-martial — Tried  by  and  acquitted  of  "Manslaughter."    C.  M.  O.  4t, 

1915,  12. 
TRYING  CASE  OUT  OF  COURT. 

1.  Judge  advocate,  by.    C.  M.  O.  61,  1894;  55, 1897;  28,  1909,  3;  37,  1909,  8;  42,  1909,  15; 

30, 1910,  5;  1,  1911,  4;  30,  1912,  6;  10,  1912,  7;  16,  1913,  4;  34,  1913,  8;  1,  1914,  6;  29, 
1914. 6;  42, 1915,  8.  See  also  JUDGE  ADVOCATE,  123, 124. 

2.  Recorder,  by.   See  SUMMARY  COURTS-MARTIAL,  101. 

TYPEWRITING. 

1.  Findings— Should  not  ba  in.    C.  M.  O.  17,  1915,  3.    See  also  FINDINGS,  88. 

2.  Sentence— Should  not  be  in.    C.  M.  O.  37, 1909,  4.    See  also  SENTENCES,  110. 

TYPHOID  FEVER. 

1.  Fraudulent  enlistment.    See  FRAUDULENT  ENLISTMENT,  27. 

2.  Nature  of.    See  TYPHOID  PROPHYLACTIC,  1. 

TYPHOID  PROPHYLACTIC. 

1.  Naval  Instructions,  1913, 1-3218,  prescribing  that  typhoid  prophylactic  shall 

be  administered  to  all  persons  of  the  Navy  and  Marine  Corps  who  are  under 
45  years  of  age,  or  who  have  not  had  a  well-deflned  case  of  typhoid  fever, 
is  mandatory  and  does  not  admit  of  exceptions— The  department  has  received 
several  requests  from  pfficers  to  be  excused  from  receiving  typhoid  prophylactic  on 
account  of  various  assigned  reasons.  In  a  recent  request  of  this  kind  an  adherence 
to  a  certain  religious  belief  was  stated  as  the  basis  of  the  request. 

The  department  has  been  obliged  to  deny  this  request  as  well  as  others  of  a  similar 
nature  for  the  reason  that  Naval  Instructions,  1913,  1-3212,  prescribing  that  typhoid 
prophylactic  shall  be  administered  to  all  persons  of  the  Navy  and  Marine  Corps  who 
are  under  45  years  of  age,  or  who  have  not  had  a  well-defined  case  of  typhoid  fever,  is 
both  explicit  in  phraseology  and  mandatory  in  character  and  admits  neither  of  doubt 
as  to  its  intention  nor  of  exception. 

In  commenting  upon  this  request  the  Bureau  of  Medicine  and  Surgery  made  the 
following  remarks: 

"Typhoid  fever  is  a  communicable  disease  and  its  prevention  by  prophylactic 
measures  is  a  well-known  procedure,  employed  in  foreign  armies  and  navies  as  well 
as  in  our  own.  Its  value  to  the  service  can  only  be  evident  if  universally  employed 
*  *  *.  This  bureau  has  never  regarded  this  measure  as  one  for  the  benefit  of  the 
individual  solely,  but  as  a  measure  of  prophylaxis  for  the  benefit  of  the  whole  service, 
and  for  the  suppression  of  a  communicable  and  at  the  same  time  a  preventable 
disease.  With  this  end  in  view  the  bureau  believes  it  has  a  right  to  expect  the  loyal 
support  of  all  officers,  their  religious  beliefs  notwithstanding,  as  the  end  sought  is 
military  efficiency,  and  on  broad  principles  is  not  incompatible  with  the  primary 
precepts  of  humanitarianism."  (See  File  26181-36.  For  cases  in  which  enlisted  men 
have  refused  to  take  this  treatment  see  G.  C.  M.  Rec.  Nos.  24756,  24881,  21477,  and 
31931.)  C.  M.  O.  16,  1916,  9-10.  See  also  File  26231-6149. 

2.  Order— The  Navy  Department  general  order  requiring  the  administration  of  typhoid 

prophylactic  treatment  is  a  legal  order.  An  enlisted  man  sentenced  to  confinement 
for  refusal  to  receive  the  above-mentioned  treatment  may,  if  he  again  refuses,  be 
tried  by  court-martial  for  such  latter  refusal,  which  would  constitute  a  second  offense. 
An  enlisted  man  under  sentence  of  court-martial  may  be  discharged  as  undesirable. 
See  File  26262-1419:1. 

3.  Refusing  to  submit— An  enlisted  man  was  tried  by  general  court-martial  for  refusing 

to  submit  to  an  "antityphoid  vaccination,"  on  the  charge  of  "Refusal  to  obey  the 
lawful  order  of  his  superior  officer.  G.  C.  M.  Rec.  24893. 

TYPHOON  SIGNALS.    C.  M.  O.  7, 1915. 

UNDESIRABLE  DISCHARGE. 

1.  Commanding  officer— May  not  adjudge  an  undesirable  discharge  but  the  department 

may.    C.  M.  O.  146, 1900,  2. 

2.  Convict  and  fugitive  from  Justice — Given  undesirable  discharge  and  turned  over  to 

civil  authorities.    See  CIVIL  AUTHORITIES,  12. 

3.  "Parole  violator" — Given  undesirable  discharge  and  turned  over  to  civil  authorities. 

See  CIVIL  AUTHORITIES,  8. 

4.  Threat  of —By  convening  authority.    See  CONVENING  AUTHORITY,  65. 

5.  Under  sentence  of  court-martial.    See  TYPHOID  PROPHYLACTIC,  2. 


UNLAWFULLY  DISPOSING  OF   PROPERTY.  635 

UNDISPUTED  FACTS.    See  CRITICISM  OF  COURTS-MARTIAL. 

UNIFORM. 

1.  Civilians— Purchasing  from  deserters.    File  26516-49,  J.  A.  G.,  June  13,  1911,  p.  ». 

•See  also  DESERTION,  12. 

2.  Commanding  officer— Uniform  disarranged  and  drunk  on  shore  in  a  foreign  port. 

Tried  by  general  court-martial.    See  COMMANDING  OFFICERS,  44. 

3.  Definition— Of  uniform.    See  File  26516-49,  J.  A.  G.,  June  13,  1911,  p.  2. 

4.  Desertion— Discarding  uniform  as  an  inference  of  specific  intent  to  desert.    See  DE- 

SERTION, 102,  111,  131. 

5.  Detentioners.   See  DETENTIONER,  2. 

6.  Discrimination  against  the  uniform.    See  DISCRIMINATION  AGAINST  UNIFORM. 

7.  Philippine  campaign  badge— Is  a  part  of  the  uniform.    File  19245-43,  J.  A.  G., 

Sept.  8, 1911.    See  also  PHILIPPINE  CAMPAIGN  BADGES,  1. 

8.  Regulations.    See  UNIFORM  REGULATIONS. 

9.  Retired  officers— A  civil  engineer,  retired  with  the  rank  of  commander,  is  entitled 

to  wear  the  uniform  of  that  grade  with  distinguishing  insignia  of  his  corps.    See 
File  795-05;  3S19-03. 

10.  Sale  of.    See  File  26516-49,  J.  A.  G.,  Jane  13,  1911. 

11.  Solicitor— Investigation  by  solicitor  of  discrimination  against  the  uniform.    See 

OATHS,  41. 

12.  Uniform  of  enlisted  men— Confiscation  and  forfeiture  of.    See  An.  Rep.  J.  A.  G., 

1908,  p.  21. 

13.  Unlawful  wearing  of — Arrest  and  proposed  prosecution  of  a  civilian  for  unlawfully 

wearing  the  uniform  of  the  United  States  Navy.    File  5012-60,  J.  A.  G.,  Aug.  17, 1916. 

14.  Same— In  violation  of  section  125,  act  of  June  3, 1916  (39  Stat.  216).    File  21355-31,  Sec. 

Navy,  July  15, 1916. 
UNIFORM  REGULATIONS. 
1.  Regulations— Force  and  effect  as.    See  REGULATIONS,  NATT,  14. 

UNIFORMITY  OF  SENTENCES. 

1.  General  courts-martial.    C.  M.  O.  6, 1909, 3;  1, 1913,  4;  10, 1913,  5;  16, 1913,  3.    Stt  alt* 

SENTENCES,  111,  112. 

2.  Summary  courts-martial.    C.  M.  O.  10,  1911,  8.    See  also  SENTENCES,  111. 

UNITED  STATES  MARSHAL. 
1.  Rewards — For  delivering  deserters.    See  REWARDS,  2. 

UNITING  WITH  A  MUTINOUS  ASSEMBLY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  14, 1879. 

UNIVERSAL  TRAINING.    See  DISCIPLINE,  2. 
"UNJUSTIFIABLE."    See  ASSAULT,  27. 

UNLAWFUL  AND  FELONIOUS  ENTRY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  42, 1892. 

UNLAWFUL  ORDERS.   See  ORDERS,  67. 

"UNLAWFUL  PURPOSE." 

1.  Specification — In  a  specification  under  a  charge  of  "Conduct  to  the  prejudice  of  good 
order  and  discipline,"  it  was  alleged  that  intoxicants  were  by  order  of  the  accused 
brought  into  the  recruiting  office  for  the  "unlawful  purpose"  of  the  accused.  Held, 
That  the  words  "unlawful  purpose"  can  be  found  not  proved  by  the  court  and  the 
specification  will  still  support  the  charge,  the  evidence  showing  that  the  intoxicants 
were  taken  into  the  recruiting  office  in  violation  of  law  and  regulation.  G.  C.  M.  Rec. 
30485,  p.  807.  See  also  CHARGES  AND  SPECIFICATIONS,  49, 102. 

UNLAWFULLY  CONVEYING  SPIRITS  OR  ALCOHOLIC  LIQUORS  ON  BOARD 
A  VESSEL  OF  THE  NAVY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  14,  1879. 

UNLAWFULLY  DISPOSING  OF  PROPERTY  OF  THE  UNITED  STATES  FUR- 
NISHED AND  INTENDED  FOR  THE  UNITED  STATES  NAVAL  SERVICE. 
1.  Warrant  officer  commissioned— Charged  with.    C.  M.  O.  20, 1912. 


634        USING   OBSCENE   AND  THREATENING   LANGUAGE. 

UNLAWFULLY  DISPOSING  OF  PROPERTY  OF  THE  UNITED  STATES  FUR- 
NISHED AND  INTENDED  FOR  THE  NAVAL  SERVICE. 

1.  Chief  carpenter— Charged  with.    C.  M.  O.  20,  1912. 

UNPROFESSIONAL  CONDUCT  UNBECOMING  A  MEDICAL  OFFICER  OF  THE 
NAVY. 

1.  Surgeon— Charged  with.    C.  M.  O.  59, 1882. 

UNSOUND  MIND.    See  INSANITY,  9. 

UNTRAINED  MIND.   See  INSANITY,  6. 

UNTRUTHFUL  OFFICER.   See  ADEQUATE  SENTENCES,  11;  OFFICERS,  121. 

USAGES.   See  CUSTOMS  OF  THE  SERVICE,  6;  WORDS  AND  PHRASES. 

USELESS  PAPERS. 

1.  Disposition  of— The  act  of  February  16, 1889  (25  Stat.  672)  is  applicable  to  useless  papers 

on  file  with  the  board  of  labor  employment,  navy  jard,  Philadelphia.    File  4496-77. 

2.  Same — The  act  of  February  16,  1889  (25  Stat.,  672)  is  applicable  to  useless  papers  on 

file  at  Marine  Corps  posts.    File  14287-5. 

3.  Same — Useless  papers  in  office  of  Judge  Advocate  General  destroyed.    File  14287-20, 

J.  A.  G.,  Nov.  4, 1915. 

USING  ABUSIVE  AND  PROFANE  LANGUAGE  TOWARD  HIS  SUPERIOR 
OFFICER  WHILE  IN  THE  EXECUTION  OF  THE  DUTD3S  OF  HIS 
OFFICE. 

1.  Officer-Charged  with.    C.  M.  O.  26,  1913,  1. 

USING  ABUSIVE  AND  THREATENING  LANGUAGE  TOWARD  ANOTHER 
PERSON  IN  THE  SERVICE. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  21, 1910, 10. 

2.  Officer— Charged  with.    C.  M.  O.  78, 1896. 

3.  Warrant  officer— Charged  with.    C.  M.  O.  25, 1908;  10, 1914. 

USING  ABUSIVE  LANGUAGE  TOWARD  ANOTHER  PERSON  IN  THE 
SERVICE. 

1.  Officer— Charged  with.    C.  M.  O.  60, 1904. 

USING  ABUSIVE,  OBSCENE,  AND  PROFANE  LANGUAGE  TOWARD  HIS 
SUPERIOR  OFFICER. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  23,  1910,  4. 

USING  ABUSIVE,  OBSCENE,  AND  THREATENING  LANGUAGE  TOWARD 
HIS  SUPERIOR  OFFICER, 

1.  Enlisted  man— Charged  with.    C.  M.  O.  23, 1910, 5. 

USING  DISRESPECTFUL  AND  ABUSIVE  LANGUAGE  TO  HIS  SUPERIOR 
OFFICER. 

1.  Officer— Charged  with.    C.  M.  O.  15,  1882. 

USING  LANGUAGE  DISRESPECTFUL  TO  THE  PRESIDENT  OF  THE  UNITED 
STATES. 

1.  Officer— Charged  with.    G.  O.  85,  Oct.  11,  1867. 

USING  MENACES  TOWARD  ANOTHER  PERSON  IN  THE  NAVY. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  3,  1888. 

USING  MUTINOUS  WORDS. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  22, 1887.    See  also  MUTINY. 

USING  OBSCENE  AND  ABUSIVE  LANGUAGE  AGAINST  ANOTHER  PERSON 
IN  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  18,  1910, 1. 

USING  OBSCENE  AND  THREATENING  LANGUAGE  TOWARD  ANOTHER 
PERSON  IN  THE  NAVAL  SERVICE. 

1.  Warrant  officer  (commissioned)— Charged  with.    C.  M.  O.  28, 1915. 


VESSELS.  635 

USING  OBSCENE  LANGUAGE  TOWARD  HIS  SUPERIOR  OFFICER. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  30,  1910,  8. 

USING     PROFANE,     ABUSIVE,     AND     OBSCENE      LANGUAGE     TOWARD 
ANOTHER  PERSON  IN  THE  SERVICE. 

1.  Gunner— Charged  with.    C.  M.  O.  212,  1901. 

2.  Officer-Charged  with.    C.  M.  0. 18, 1910. 

USING  PROFANE.  OBSCENE,  ABUSIVE,  AND  THREATENING  LANGUAGE 
TOWARD  ANOTHER  PERSON  IN  THE  SERVICE. 

1.  Boatswain— Charged  with.    C.  M.  O.  69, 1904. 

USING  PROFANE  AND  ABUSIVE  LANGUAGE  TOWARD  ANOTHER  PERSO1C 
IN  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  60, 1904;  45, 1909, 1. 

USING  PROFANE   AND   ABUSIVE   LANGUAGE   TOWARD   HIS    SUPERIOR 
OFFICER. 

1.  Officers— Charged  with.    C.  M.  O.  28, 1908;  26,  1913. 

USING   PROVOKING   AND   REPROACHFUL   WORDS   TOWARD   ANOTHER 
PERSON  IN  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  23,  1886;  19,  1915. 

USURPATION. 

1.  Court,  by— Of  functions  of  judge  advocate.    See  COURT,  99;  JUDGE  ADVOCATE,  61. 

2.  Same— Of  functions  and  prerogatives  of  convening,  reviewing  and  revising  authority. 

See  ADEQUATE  SENTENCES,  3-11, 13;  CLEMENCY,  13;  COURT,  17, 18. 

3.  Judge  advocate — Should  not  usurp  functions  of  court.    See  COURT,  98;  JUDGE  ADVO- 

CATE, 123-126. 

4.  Recorder — Should  not  usurp  the  functions  of  the  court    See  SUMMARY  COURT*- 

MAETIAL,  101. 

UTTERING  SEDITIOUS  WORDS. 

l.  Enlisted  man— Charged  with.    C.  M.  O.  14, 1910,  13.    See  also  SEDITION. 

VACCINATION. 

1.  Office  of  Judge  Advocate  General— Employees  in.    See  File  4488-112,  J.  A.  G.,  Mar. 

15,  1913. 

2.  Typhoid.   See  TYPHOID  PROPHYLACTIC. 

3.  Smallpox— A  medical  officer  was  tried  by  general  court-martial  under  the  charge  of 

"Negloct  of  duty,"  for  neglecting  and  failing  to  advise  his  commanding  officer  of  the 
necessity  and  advisability  for  and  for  neglecting  and  failing  to  effect,  the  vaccination 
of  such  of  the  officers  and  crew  as  were  not  known  by  the  accused  to  be  protected  by 
vaccination  from  smallpox,  as  it  was  his  duty  so  to  do.  C.  M.  O.  35,  1914.  See  also 
SMALLPOX,  1. 

VENEREAL  DISEASE. 

1.  Hospital  Fund— Persons  not  earning  pay.    See  HOSPITAL  FUND,  3, 6. 

2.  Promotion  of  an  officer.    See  PROMOTION,  212. 

VENEREAL  PROPHYLACTIC. 

1.  Court-martial— For  refusal  to  take.    See  G.  C.  M.  Rec.  21477. 

2.  Sale  of— Prohibited  in  ship's  store.    File  26181-39,  Sec.  Navy,  Aug.  26, 1916. 

VERD7ICATION  OF  EVIDENCE  BY  WITNESSES.    See  EVIDENCE,  121, 122, 123. 

VESSELS. 

1.  Boiler  tubes— Purchase  abroad  of  boiler  tubes  for  a  torpedo  boat.    Ffle  4652,  Sec.  Navy, 

Dec.  4,  1891. 

2.  Same — Use  in  a  torpedo  boat  of  boiler  tubes  manufactured  within  the  United  States 

from  raw  material  of  foreign  production.    File  2782-92,  Sec.  Navy,  July  7, 1892. 

3.  Classification.    See  File  611-04,  J.  A.  G.;  2267-04,  J.  A.  G.;  act  of  Mar.  3, 1901  (31  Stat., 

1133). 

4.  Crank  shaft— Purchase  abroad  of  a  crank  shaft  for  a  submarine.    File  576r244. 

5.  Foreign  vessels— Use  of  foreign  vessels  for  the  transportation  of  coal.    File  4390-19, 

J.  A.  G.,  Sept.  23,  1907. 

6.  Foreign  built  vessels.    File  4390-4,  Mar.  23, 1907. 


C36  VESSELS. 

7.  Gold— Transportation  of  gold  by  vessels  of  the  United  States  Navy.    See  GOLD. 

8.  Merchandise— Application  of  R.  S.  4347.    File  4390-19. 

9.  Naval  Militia — Liability  for  damages  done  by  a  vessel  turned  over  to  the  Naval 

Militia.    See  COLLISION,  14;  NAVAL  MILITIA,  3. 

10.  Sale  of— Does  not  include  guns.    15  J.  A.  G.,  115,  Mar.  23, 1911. 

11.  Transfer  of — A  vessel  of  the  United  States  Navy  to  another  department.    File  3160-54, 

J.  A.  G.,  May  4, 1907.    See  also  REVENUE  CUTTER  SERVICE,  2. 

VIOLATING  A  LAWFUL  ORDER  ISSUED  BY  THE  SECRETARY  OF  THE  NAVY. 

1.  Officer— Charged  with.    C.  M.  O.  80, 1905. 

VIOLATING  OR  REFUSING  OBEDIENCE  TO  ANY  LAWFUL  GENERAL  OR- 
DER, ETC. 

1.    Specific  intent — Not  necessary.    See  INTENT,  2. 

VIOLATION  OF  A  LAWFUL  REGULATION  ISSUED  BY  THE  SECRETARY 
OF  THE  NAVY. 

1.  Enlisted  men— Charged  with.    C.  M.  O.  21,  1910,  6;  27,  1913,  5. 

2.  Officers— Charged  with.    C.  M.  O.  22,  1890;  28,  1894;  30,  1896;  33,  1896;  52,  1898;  129, 

1898;  111,  1894;  50,  1903;  76,  1903;  48,  1904;  11,  1908;  38,  1909;  4,  1911,  3;  11,  1912;  7,  1913? 
39,  1913,  2;  17,  1914;  35,  1914;  4, 1915;  18,  1915;  27.  1916;  10.  1917;  G.  C.  M.  Rec.  16956; 
11192;  12142.  See  also  C.  M.  O.  7,  1893;  82,  1892;  G.  C.  M.  Rec.  6135. 

3.  Paymaster's  clerk— Charged  with.    C.  M.  O.  38,  1913;  24,  1915. 

4.  Warrant  officers— Charged  with.    C.  M.  0. 121, 1907;  7, 1909;  12, 1912;  15, 1912;  11, 1915. 

VIOLATION  OF  ARTICLE  13  OF  AN  ACT  ENTITLED  "AN  ACT  TO  ADOPT 
THE  REVISED  INTERNATIONAL  REGULATIONS  TO  PREVENT  COL- 
LISIONS AT  SEA."    APPROVED  MARCH  3,  1885. 
1.  Officer— Charged  with.    C.  M.  O.  Ill,  1894. 

VIOLATIONS  OF  ORDERS. 

1.  Line  of  duty.    See  LINK  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  107-112., 

VIOLATIONS  OF  VARIOUS  ARTICLES  OF  THE  ARTICLES  FOR  THE  GOV- 
ERNMENT OF  THE  NAVY.  (Phraseology  not  to  be  followed.) 

1.  Master— Charged  with.    C.  M.  O.  16,  1882;  G.  C.  M.  Rec.  8380. 

2.  Midshipman— Charged  with.    C.  M.  O.  128,  1905. 

3.  Officers— Charged  with.    C.  M.  O.  76,  1903;  51,  1893;  41,  1892;  82, 1892;  35, 1892;  29, 1890. 

G.  C.  M.  Rec.  6054,  7247,  7296. 

4.  Paymaster's  clerk— Charged  with.    C.  M.  O.  4,  1907;  G.  C.  M.  Rec.  6058. 

5.  Warrant  officers— Charged  with.    C.  M.  O.  26,  1906. 

VIOLATION  OF  SECTION  549,  REVISED  STATUTES,  TO  THE  PREJUDICE, 
ETC. 

1.  Officer— Charged  with.    G.  C.  M.  Rec.  6359. 

VIOLATION  OF  SO  MUCH  OF  ARTICLE  8,  PAGE  9,  OF  THE  LAWS  RELATING 
TO  THE  NAVY  (MARCH  3,  1883)  AS  REFERS  TO  SCANDALOUS 
CONDUCT  TENDING  TO  THE  DESTRUCTION  OF  GOOD  MORALS. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  32,  1893,  and  many  others. 

VIOLENTLY  ASSAULTING  THE  CORPORAL  OF  THE  GUARD. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  23,  1887. 

VOIR  DIRE.  See  C.  M.  0. 128, 1905, 2;  G.  C.  M.  Rec.  10196,  p.  5;  27960,  45;  CHALLENGES,  13; 
EVIDENCE,  124;  MEMBERS  OF  COURTS-MARTIAL,  39;  WORDS  AND  PHRASES. 

VOLUNTARY  DRUNKENNESS.    See  DRUNKENNESS. 
VOLUNTARY  RETIREMENT.    See  RETIREMENT  OF  OFFICERS. 
VOMIT.    See  C.  M.  O.  23, 1908;  24, 1908. 

VOTING. 

1.  Confidential— The  vote  of  the  members  of  a  general  court-martial  in  determining  the 

guilt  or  innocence  of  the  accused  is  a  confidential  matter.  C.  M.  0. 125, 1900,  2.  Ste 
also  COURT,  191;  CRITICISM  OF  COURTS-MARTIAL,  22, 36;  OATHS,  47. 

2.  Congress— Vote  of  thanks  by  Congress.    See  CONGRESS,  8-10. 

3.  Dishonorable  discharge— Effect  on.    See  DISHONORABLE  DISCHARGE,  6. 


VOTING.  637 

4.  General  courts-martial.    See  COURT,   191;    CRITICISM   OF  COURTS-MARTIAL,   22; 

OATHS,  47. 

5.  Jurisdiction — Of  the  department  to  decide  whether  an  officer  or  enlisted  man  has  the 

right  to  vote.    See  VOTING,  7-11. 

6.  Midshipman — Question  whether  a  dismissed  midshipman  is  eligible  to  vote  in  a 

certain  jurisdiction  depends  upon  the  laws  of  the  State  in  which  he  claims  the  right, 
and  is  not  one  under  the  jurisdiction  of  the  Navy  Department.  File  5252-79,  June 
19, 1916. 

7.  Officers  and  enlisted  men— The  department  has  no  jurisdiction  to  decide  whether 

certain  enlisted  men  and  officers  of  the  naval  service  have  a  right  to  vote  in  a  certain 
city.  The  only  point  involved  is  whether  the  persons  possess  the  necessary  qualifi- 
cations prescribed  by  the  laws  of  the  State,  and  the  local  officers  are  not  only  pre- 
sumably qualified  to  determine  this  question,  but  they  are  charged  with  the  respon- 
sibility of  so  doing  and  may  be  required  to  defend  their  action  in  the  civil  courts,  if 
they  deny  the  right  of  voting  to  one  who  asserts  his  eligibility.  Thus  the  question 
is  a  judicial  one,  and  the  Attorney  General  of  the  United  States  has  repeatedly  held 
that  executive  officers  of  the  Federal  Government  are  not  authorized  to  render 
decisions  upon  judicial  questions,  not  only  because  this  would  be  an  unwarranted 
excess  of  their  legal  powers,  but  because  their  decision  might  bring  the  Executive 
into  conflict  with  the  civil  courts.  It  was  therefore  held  that  the  department  could 
not,  either  legally  or  with  propriety,  decide  the  question  presented^  File  9212-67, 
J.  A.  G.,  Nov.  1, 1915;  C.  M.  0. 42, 1915, 13.  Seealso  File9212-73,  J.  A.  G.,May  2, 1916: 
9212-83,  J.  A.  G.,  Oct.  14,  1916;  9212-84,  Sec.  Navy,  Oct.  4,  1916. 

8.  Same — The  right  of  a  soldier,  sailor,  or  marine,  home  on  furlough,  to  vote,  depends  upon 

the  Constitution  and  laws  of  the  State  where  the  man  resides,  and  therefore  is  a  ques- 
tion within  the  jurisdiction  of  the  tecal  State  authorities  and  not  of  the  Navy  Depart- 
ment. File  9212-54,  Nov.  30, 1914.  Seealso  File  3027,  J.  A.  G.,  Oct.  14, 1905. 

9.  Same — The  department  is  aware  of  no  Federal  law  which  would  permit  an  enlisted 

man  on  duty  on  board  a  battleship  to  register,  without  actually  returning,  in  a  city 
of  Georgia  and  become  a  citizen  of  a  certain  county  therein  and  be  eligible  to  vote. 
Attention  invited  to  the  Constitution  of  the  State  of  Georgia,  1877,  Art.  II.  Sec.  I, 
Par.  II,  and  Sec.  II,  Par.  I.  File  9212-84,  Sec.  Navy,  Oct.  4, 1916. 

10.  Same— Right  to  vote  in  the  various  States.    File  9212-?3,  J.  A.  G. ,  Oct.  4. 1916  (Illinois); 

9212-84.  Sec.  Navy,  Oct.  4, 1916  (Georgia);  28550-14.  J.  A.  G.,  Mar.  16, 1916  (Missouri); 
9212-71,  Sec.  Navy,  Mar.  27,  1916;  9212-67,  J.  A.  G.,  Nov.  1,  1915;  9212-73,  J.  A.  G., 
May  2,  1916;  5252-79,  June  19,  1916;  9212-56  (New  York). 

11.  Pensacola,  Fla. — Right  of  inhabitants  of  Warrington  and  Woolsey  to  vote.    See 

File  7090-04. 

12.  Residence  of  retired  officers— Concerning  the  residence  of  a  retired  naval  officer  and 

his  right  to  vote  in  the  State  of  New  York,  his  residence  having  been  changed  to 
Washington,  D.  C..  in  the  Bureau  of  Navigation,  Navy  Department;  and  certain 
New  York  laws  and  decisions  on  the  subject.  See  File  9212-56. 

13.  Retired  officer.   See  VOTING,  12. 

14.  Revealing— Vote  on  finding  or  sentence  of  general  and  summary  courts-martial.    Set 

COURT,  189-191;  CRITICISM  OF  COURTS-MARTIAL,  22;  OATHS,  47. 

15.  Right  of  officers  and  enlisted  men  to  vote.    See  DISHONORABLE  DISCHARGE,  5; 

VOTING,  6,  7-12, 16. 

16.  Summary  courts-martial — Department  has  no  jurisdiction  to  decide  and  can  not 

with  propriety  express  any  opinion  upon  the  subject  as  to  the  effect  of  discharge  by 
summary  court-martial  upon  a  man's  right  to  vote  in  a  certain  State.  File  9212-81, 
J.  A.  G.,  Aug.  2,1916. 

17.  Same— Member  disclosing  vote  on  finding  or  sentence.    C.  M.  O.  125,  1900,  2:    42, 

1915,  8-9;  49,  1915,  21.  See  also  COURT,  189;  CRITICISM  OF  COURTS-MARTIAL,  22,  36; 
OATHS,  47. 

18.  Same— Member  called  upon  bv  a  "court  of  justice"  to  reveal  vote.    See  COURT,  189. 

19.  Thanks  of  Congress.    See  CONGRESS,  8-10. 

VULGAR  AND  INDECENT  ACTS.    See  MEDICAL  OFFICERS  OF  THE  NATT,  11. 
WAITING  ORDERS  PAY.    C.  M.  O.  27,  1915,  8.    See  also  PAT,  61. 

WAIVING. 

1.  Absence  of  accused— Cannot  be  construed  as  a  waiver.     ( Wairman  ».  U.  3.,  J6  Ct.  Cls. 

236.) 

2.  Age  limit.    See  MIDSHIPMEN,  3-6,  63. 

3.  Allowances.    See  ALLOWANCES,  14. 


638  WAIVING. 

4.  Circulars  of  the  department— By  the  Secretary  of  the  Navy.     See  ACTING  ASSIST- 

ANT SURGEONS,  2;  MARINE  CORPS,  66. 

5.  Counsel— Accused  may  waive  counsel  at  any  time  during  the  trial.    C.  M.  O.  42, 1909, 

6.   See  also  COUNSEL,  2. 

6.  Criminality— Waiving  of  rights  as  to  self-incrimination.    See  SELF-INCRTMINATION,  18. 

7.  Departments  circulars.    See  ACTING  ASSISTANT  SURGEONS,  2. 

8.  Errors  in  charges  and  specifications— Waived  by  plea  of  "guilty."    See  ABSENCM 

FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

9.  Evidence,  documentary.   See  EVIDENCE,  DOCUMENTARY,  60. 

10.  Fraudulent  enlistment— Waived  by  department.    See  FRAUDULENT  ENLISTMENT, 

75,  76,  94,  95. 

11.  " Guilty,"  plea  of— Waiving  of  unsubstantial  defects  in  charges  and  specifications. 

See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

12.  Navy  Regulations.   See   DESERTERS,  11;  REGULATIONS,  NAVY,  90,95. 

13.  Original  documentary  evidence.    See  EVIDENCE,  DOCUMENTARY,  61. 

14.  Plea  of  "  Guilty " — Waiving  unsubstantial  defects  in  charges  and  specification.*.. 

See  ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVE,  29. 

15.  Pay.   See  LEAVE  OF  ABSENCE,  6, 12, 13. 

16.  Physical  qualifications.   See  ACTING  ASSISTANT  DENTAL  SURGEONS. 

17.  Proceedings,  irregular — If  the  accused  neglects  to  insist  on  his  rights  at  the  proper 

time  he  waives  them.    See  ESTOPPEL,  6. 

18.  Record  of  proceedings— Accused  waived  right  to  copy.    See  RECORD  or  PROCEED- 

INGS, 32,  33. 

19.  Regulations.   See  DESERTERS,  11;  REGULATIONS,  NAVY,  90-95. 

20.  Self-incrimination.   See  SELF-INCRIMINATION,  18. 

21.  Statute— The  provisions  of  a  statute  may  not  be  waived  by  the  department.    Set 

MARINE  CORPS,  66. 

22.  Statute  of  limitations.   See  STATUTE  OF  LIMITATIONS,  24. 

23.  Testimony — Witness  cannot  waive  reading.    See  JUDGE  ADVOCATE,  134. 

24.  Transportation.    See  APPRENTICES,  2. 

WAR. 

1.  Armistices — Doubtless  the  most  important  international  agreement  ever  entered  into 

by  the  Executive  of  the  United  States  without  the  advice  and  consent  of  the  Senate 
was  the  armistice,  or  peace  protocol,  with  Spain,  concluded  at  Washington,  August  12, 
1898.  (5  Moore's  Digest  of  International  Law,  213.)  File  26516-47,  J.  A.  G.,  May 
18, 1911.  p.  8. 

2.  Same— Ir  the  suspension  of  hostilities  is  for  a  more  considerable  length  of  time  or  for  a 

more  general  purpose.it  is  called  a  truce  or  armistice.  Such  suspension  is  either  general 
or  partial.  *  *  *  But  a  general  truce  or  armistice  applies  to  the  general  operations 
of  war,  and  whether  it  be  for  a  longer  or  shorter  time  extends  to  all  the  forces  of  the 
belligerent  States  and  restrains  the  state  of  war  from  producing  its  proper  effects. 
leaving  the  contending  questions  between  them  in  the  same  situation  in  which  it  found 
them.  Such  a  truce  has  sometimes  been  called  a  temporary  peace,  though  in  such 
cases  the  word  peace  is  used  only  in  opposition  to  acts  of  war  and  not  in  opposition  to 
a  state  of  war.  (7  Moore's  Digest  of  International  Law,  327.)  File  26516-47,  J.  A.  G., 
May  18  1911,  p.  9. 

3.  Same— ''It  is  also  stated  by  Hall  in  his  International  Law  (sec.  192)  that  the  terms 

*  *  *  'armistice,'  'truce,'  and  'suspension  of  arms'  are  applied  to  agreements 
for  a  cessation  of  hostilities  for  a  limited  duration  or  extent."  File  26516-47,  J.  A.  G., 
May  18, 1911,  p.  9. 

4.  Same — "  It  is  stated  also  that  'at  the  expiration  of  the  truce  hostilities  may  recommence 

without  any  fresh  declaration  of  war/  (1  Kent,  161.)"  File  26516,  J.  A.  G.,  May  18, 
1911,  p.  9. 

5.  Same — "A  truce  or  suspension  of  arms  does  not  terminate  the  war,  but  it  is  one  of  the 

commercia  belli  which  suspends  its  operations.  (1  Kent's  Comm.,  160.)"  File 
26516-47,  J.  A.  G.,  May  18, 1911,  p.  6. 

6.  Asleep  on  post — Enlisted  man  tried  by  general  court-martial  for  sleeping  on  post  during 

war.    C.  M.  O.  91, 1898;  95,  1898,  2. 

7.  China  campaign — "A  case  which  does  not  appear  to  have  gone  to  the  courts,  but 

where  an  executive  branch  of  the  Government  held  the  word  f"war"j  to  have  the 
more  liberal  meaning,  is  that  of  the  officers  and  enlisted  men  of  the  Army  who  served 
in  China  beginning  with  May  26, 1900.  They  were  held  to  be  entitled  to  the  increased 
allowance  of  pay  for  service  in  time  of  war.  (Digest  of  Opinions  of  the  Judge  Advo- 
cate General  of  the  Army,  1912,  p.  1055IB4.)"  File  28653-1,  Sec.  Navy,  July  24, 1916. 
p.  2. 


WAR.  639 

8.  Civil  War.    See  CIVIL  WAR;  CTVTL  WAR  SERVICE;  NAME,  CHANGE  OF,  16. 

9.  Clemency — Granted  because  of  excellent  war  record  of  accused.    See  CLEMENCY.  67. 

10.  Corean  forts— Capture  of  the  Corean  forts,  June  9, 10, 1871.    Held,  That  the  "expedition 

which  resulted  in  the  capture  of  the  Corean  forts,  June  9  and  10, 1871,  comes  within 
the  meaning  of  the  words  'in  any  war'  as  used  in  the  act  of  April  27, 1916"  (39  Stat., 
53).  File  28653-1,  Sec.  Navy,  July  24, 1916,  p.  2.  See  also  MEDALS  OF  HONOR,  4. 

11.  Definition— War  is  that  state  in  which  a  nation  prosecutes  its  rights  by  force.    (Alaire 

v.  U.S.,  I  Ct.  Cls.,  238.)    File  28653-1,  Sec.  Navy,  July  24, 1916,  p.  1. 
"Public  war  is  a  state  of  armed  hostilities  between  sovereign  nations  or  Governments." 
(Stockton,  p.  293.) 

12.  Desertion  In  tune  of  war.    See  DESERTION,  28,  29, 132-137. 

13.  Europe — Neutrality  of  naval  officers  with  reference  to  war  in  Europe.    See  NEU- 

TRAL, 4. 

14.  Formal  declaration — It  has  been  held  that  no  formal  declaration  of  war  by  Congress 

or  proclamation  by  the  President  was  necessary  to  define  and  characterize  an  Indian 
War.  ( Alaire  «.  U.S.,  1  Ct.  Cls.,  238;  Marks  v.  U.S.,  28  Ct.  Cls.,  147.)  File  2S653-1, 
Sec.  Navy,  July  24,  1916,  p.  1. 

15.  General  courts-martial— Convening  of,  in  time  of  war.    See  CONVENING  AUTHORITY, 

27. 

16.  Indian  Wars.    See  WAR.  14. 

17.  Maritime  war — The  special  objects  of  maritime  war,  which  are.  inter  alia,  to  capture 

or  destroy  the  military  forces  of  the  enemy,  his  maritime  commerce,  and  to  prevent 
his  procuring  war  material  from  neutral  sources,  and  to  protect  and  to  defend  its  own 
national  territory,  property,  and  sea-borne  commerce,  within  the  area  of  maritime 
warfare,  which  comprises  the  high  seas  or  other  waters  that  are  under  no  jurisdiction , 
necessarily  gives  to  a  belligerent  the  right  to  adopt  all  unproMbited  methods  to  suc- 
cessfully attaining  its  ends.  File  10451-02,  J.  A.  G.,  Dec.  9,  1902;  22  J.  A.  G.  2-3. 

18.  Medals  of  honor—"  To  hold  that  the  word  'war,'  as  used  in  the  act  under  consideration 

(Apr.  27,  1916,  39  Stat.,  53),  means  only  a  perfect  war,  or  one  where  Congress,  by 
special  enactment,  has  declared  that  a  war  exists,  would  be  a  highly  technical  and 
narrow  construction,  and  it  is  not  believed  that  it  would  at  all  accord  with  the  liberal 
purpose  of  Congress  in  providing  for  the  special  reward  for  those  distinguished  men 
who  would  otherwise  receive  the  benefits  of  the  act.  File  28653-1,  Sec.  Navy,  July 
24,  1916. 

19.  Merchant  crews — Status  in  time  of  war.    See  MERCHANT  VESSELS,  2. 

20.  Munitions  of  war.    See  WAR  MUNITIONS. 

21.  Neutrality.   See  NEUTRAL;  TREATIES,  13. 

22.  Object  of  greater  penalty  for  desertion  In  time  of  war— "A  consideration  of  the 

object  of  the  greater  possible  penalty  for  desertion  in  time  of  war  leads  to  the  conclu- 
sion that  its  object  was  to  hold  persons  in  the  sen-ice  when  the  country's  need  for 
them  was  most  pressing— to  repel  invasion,  to  defend  the  country,  or  to  suppress  in- 
ternal war.  In  time  of  peace  no  such  penalty  is  necessary;  it  is  commensurate  with 
the  necessity."  File  26516-47,  J.  A.  G.,  May  18, 1911,  p.  9.  See  also  DESERTION,  137. 

23.  Offenses  in  tune  of  war.    C.  M.  O.  67,  1898;  33,  1899.    See  also  DESERTION,  28,  29, 

132-137;  OFFENSES,  11;  WAR,  22. 

24.  Peace— Desertion  committed  after  signing  of  treaty  of  peace.    See  DESERTION,  134. 

In  a  foreign  war,  a  treaty  of  peace  would  be  the  evidence  of  the  time  when  it  closed. 
(U.  S.  v.  Anderson,  19  Wafi.,  70.)    File  26516-47,  J.  A.  G.,  May  18, 1911,  p.  9. 

25.  Bights  of  a  belligerent  war  vessel — The  right  of  a  belligerent  war  vessel  to  screen 

its  lights  and  omit  fog  signals  in  order  to  shield  its  presence  from  an  enemy,  particu- 
larly when  employed  on  scout  duty,  would  seem  to  be  axiomatic.  File  10451-02, 
J.  A.  G.,  Dec.  9, 1902,  p.  2;  22  J.  A.  G.  3. 

26.  Service.    See  CIVIL  WAR  SERVICE;  WAB  SERVICE. 

27.  Spain.    See  WAR  WITH  SPAIN. 

28.  "State  of  war"  distinguished  from  an  "act  of  war"— Although  acts  of  war  may 

terminate  for  a  time,  or  permanently,  a  state  of  war  does  not  close  until  the  ratifi- 
cation of  a  treaty  of  peace.  A  state  of  war  may  exist  when  no  hostile  acts  take  place. 
File  26516-47,  J.  A.  G.,  May  18,  1911. 

29.  State  of— Although  acts  of  war  may  terminate  for  a  time  or  permanently,  a  state  of 

war  does  not  close  until  the  ratification  of  a  treaty  of  peace,  and  until  the  belligerents 
are  thus  morally  bound  to  cea.se  acts  of  war  a  state  9f  war  still  exists,  and  the  need 
for  men  does  not  end.  While  acts  of  war  are  necessarily  done  in  time  of  war  (or  closely 
preceding  or  following  it),  nevertheless  a  state  of  war  may  exist  when  no  hostile  acts 
take  place.  It  seems  to  be  evident  that  a  time  of  war  is  practically  synonymous  with 
a  state  of  war,  both  logically  and  upon  authority.  File  26515-47,  J.  A.  G.,  May  18, 
1911,  quoted  in  File  26282-68,  J.  A.  G.,  Oct.  6, 1911,  p.  2. 

50756°-17 41 


640  WARRANTS  FOR  PARDONS. 

WAR  IN  EUROPE. 

1.  Neutrality— Officers.    See  NEUTRAL,  4. 

WAR  MUNITIONS. 

1.  Employment  of  officer— By  a  foreign  corporation  manufacturing.    C.  M.  O.  29,  1915, 
10-11.    See  also  RETIRED  OFFICERS,  28,  31. 

WAR  OF  THE  REBELLION.    See  NAME,  CHANGE  OF,  16. 
WAR  PRISONERS.    See  PRISONERS  OF  WAR. 

WAR  SERVICE. 

1.  Retirement  of  enlisted  men— Credit  for  double  time.    See  RETIREMENT  OF  ENLISTED 

MEN,  2. 

2.  Service  on  a  practice  snip — While  at  the  Naval  Academy  during  the  Civil  War.    File 

1494-04.    gee  also  File  1494-04,  Mar.  7,  1904. 

WAR  WITH  SPAIN. 

1.  Date  when  ended— The  date  of  the  signing  of  the  treaty  (Dec.  10, 1898)  is  the  earliest 

on  which  war  with  Spain  can  be  considered  to  have  terminated  for  any  purpose. 
File  24368-11,  J.  A.  G.,  Mar.  14, 1914.  See  also  Eliot  A.  De  Pass  et  al.  v.  U.  S.,  decided 
by  Ct.  Cls.  Mar.  16, 1914,  No.  21402. 

2.  Enlistment  during— The  date  of  the  signing  of  the  protocol,  August  12, 1898,  did  not 

end  the  war,  as  hostilities  might  have  thereafter  recommenced;  and  accordingly 
the  enlistment  of  a  man  on  August  16, 1898,  was  an  enlistment  "during  *  *  *  the 
War  with  Spain"  within  the  meaning  of  the  act ,  June  25,  1910.  File  24368-11, 
J.  A.  G.,  Mar.  14,  1914. 

3.  Protocol.    See  WAR  WITH  SPAIN,  2,  4. 

4.  Treaty  of  peace—"  On  December  10, 1893,  the  treaty  of  peace  was  signed,  and  on  April 

11,  1899,  the  ratifications  thereof  were  exchanged  and  the  treaty  proclaimed."  (File 
26516-47,  p.  2.)  [See  also  JURISDICTION,  108.] 

"  Notwithstanding  the  signing  of  the  protocol  and  the  suspension  of  hostilities,  a 
state  of  war  between  this  country  and  Spain  still  exists.  Peace  has  not  been  declared 
and  can  not  be  declared  except  in  pursuance  of  the  negotiations  between  the  peace 
commissioners  authorized  by  the  protocol."  (22  Op.  Atty.  Gen.,  190.)  File  26516-47, 
J.  A.  G.,  May  18, 1911,  p.  8.  A  state  of  war  did  not  in  law  cease  until  the  ratification 
in  April,  1899,  of  the  treaty  of  peace.  (Hijo  v.  U.  S.,  194  U.  S.,  315, 323.)  File  26516-47, 
p.  9.  See  also  TREATY  OF  PEACE  WITH  SPAIN. 

5.  Service  of  men— Under  assumed  names.    See  NAME,  CHANGE  OF,  16. 

WARNING. 

1.  Accused — Not  necessary  that  accused  be  warned  that  any  statement  he  makes  might 

be  used  against  him.    See  CONFESSIONS,  26,  27. 

2.  Same — Should  the  accused  plead  either  "Guilty"  or  "Guilty  in  a  less  degree  than 

charged,"  the  court  shall  warn  him  that  he  thereby  precludes  himself  from  the  benefits 
of  a  regular  defense  by  the  former  plea,  and  as  to  the  acts  confessed  by  the  latter. 
(R-778  (1).)  See  ACCUSED,  64;  ARRAIGNMENT,  33;  GUILTY  IN  A  LESS  DEGREE  THAN 
CHARGED,  10. 

3.  Accused  as  witness — Not  to  be  warned  when  he  resumes  status.    C.  M.  O.  47, 1910,  8; 

15, 1910,  5;  31,  1910,  13.    See  also  WITNESSES,  10. 

4.  Confession — Not  necessary  that  accused  should  be  warned.    See  CONFESSION,  26,  27. 

5.  Counsel  as  witness— Not  to  be  warned  or  shown  as  withdrawing  when  he  leaves 

witness  stand.    See  COUNSEL,  54. 

6.  Crimination— Court  may  caution  ignorant  witnesses  of  their  privilege  as  to  crimi- 

nation. C.  M.  O.  49, 1910,  9;  14, 1910, 11-12;  29, 1914, 13.  See  also  SELF-INCRIMINA- 
TION,  8. 

7.  Judge  advocate  as  witness— Not  to  be  warned  when  he  resumes  status.    C.  M.  O. 

37,  1909,  9;  15, 1910,  5;  26, 1910,  8;  31, 1910,  3.    See  also  JUDGE  ADVOCATE,  133. 

8.  Member  as  witness— Not  to  be  warned  when  he  resumes  status.    C.  M.  0. 15, 1910,  5; 

26, 1910,  8.    See  also  JUDGE  ADVOCATE,  133;  MEMBERS  OF  COURTS-MARTIAL,  53. 

9.  Oath — Witness  should  be  cautioned  that  his  oath  is  still  binding  if  he  continues  his 

testimony  after  a  recess,  or  is  recalled.    See  RECESS,  3. 

10.  Officer  of  the  Deck— To  commanding  officer.    See  OFFICER-OF-THE-DECK. 

11.  Witnesses.    See  JUDGE  ADVOCATE,  133. 

WARRANTS  FOR  PARDONS.    See  PARDONS,  55. 


WARRANT    OFFICERS.  641 

WARRANT  OFFICERS. 

1.  Acting  warrant  officers.    See  ACTING  BOATSWAINS;   ACTING  GUNNER;   ACTING 

MACHINISTS;  ACTING  PAY  CLERKS;  ACTING  WARRANT  OFFICERS. 

2.  Appointment— Discharge  of  a  man  from  his  enlistment  by  rating  him  as  a  mate  or 

appointing  him  as  a  warrant  officer.  (See  R.  S.,  1409.)  Also  when  commissioned  as 
warrant  officers.  See  File  8627-03. 

3.  Boatswains  and  chief  boatswains — Are  classed  as  line  officers.    See  COMMAND,  21. 
4   Borrowing  money— From  enlisted  men.    See  BORROWING  MONEY,  3. 

E   Carpenters  and  chief  carpenters — Are  classed  as  stall  officers.    See  COMMAND.  21. 
Command— Who  should  take  command.    File  17789-15;  26S06-54;  5210-2,  J.  A.  G., 

Dec.  16, 1907. 

Same— Classification  with  reference  to  line  and  staff.    See  COMMAND,  11,  21. 
Courts-martial— Warrant  officers  (not  commissioned)  may  not  sit  as  members. 
C.  M.  O.  7,  1914,  11;  6,  1915,  5. 

Commissioned  warrant  officers  are  entitled  to  sit  as  members  of  general  court- 
martial.  See  CHIEF  BOATSWAINS,  2. 

^Warrant  officers,  if  actually  commanding  a  naval  vessel  may  convene  summary 
courts-martial.  See  BOATSWAINS,  10;  COURT,  196;  SUMMARY  COURTS-MARTIAL,  7, 
21, 105. 

9.  Deck  court — Warrant  officers  (not  commissioned)  may  not  act  as  deck  court  officer. 
See  COURT,  192;  DECK  COURTS,  62. 

10.  Same— Warrant  officer  actually  commanding  a  naval  vessel  may  convene.    See  DECK 

COURTS,  4. 

11.  Deposits.   See  DEPOSITS,  4. 

12.  Desertion.    See  CIVIL  AUTHORITIES,  49;  DESERTION,  138. 

13.  Gunners  and  chief  gunners — Are  classed  as  line  officers.    See  COMMAND,  21. 

14.  Leave  of  absence— The  act  of  August  29,  1916  (39  Stat.,  578),  provides:  "Warrant 

officers  shall  be  allowed  such  leave  of  absence,  with  full  pay,  as  is  now  or  may  hereafter 
be  allowed  other  officers  of  the  United  States  Navy."  Held,  That  as  there  is  no  express 
or  implied  language  used  in  this  case  which  would  give  the  above  provision  retroactive 
operation,  advised  that  same  takes  effect  from  August  29,  1916.  File  17789-25,  Sec. 
Navy,  Sept.  29,  1916. 

15.  Machinists— By  act  of  March  3,  1899  (30  Stat.,  1007),  the  grade  of  warrant  machinist 

was  established,  to  which  grade  appointments  were  to  be  made  after  examination 
open  to  (1)  machinists  servingin  the  Navy  as  petty  officers  and  (2)  machinists  in  civil 
life  not  over  30  years  of  age.  File  17789-15,  J.  A.  G.,  Dec.  13, 1909. 

16.  Samer-Under  act  of  May  4, 1898  (30  Stat.,  1,007),  the  appointment  of  certain  officers,  in- 

cluding warrant  machinists,  from  civil  life  was  authorized.  Held,  That  this  was  not 
intended  to  limit,  but  to  enlarge  power  of  appointment,  and  persons  in  naval  service 
may  be  appointed.  File  3259-98. 

17.  Machinists  and  chief  machinists — Exercise  of  command  by.    See  COMMAND,  9-11, 

21. 

18.  Same— Are  classed  as  line  officers.    See  COMMAND,  21. 

19.  Naval  Militia— Physical  examinations.    See  NAVAL  MHJTIA,  29. 

20.  Numbers,  loss  of.    See  NUMBERS,  Loss  OF,  15;  WARRANT  OFFICERS,  29,  30. 

21.  Pay  clerks  and  chief  pay  clerks— Are  classed  as  staff  officers.    See  COMMAND,  21. 

22.  Pharmacists  and  chief  pharmacists — Are  classed  as  staff  officers.    See  COM- 

MAND, 21. 

23.  Precedence  of  commissioned  warrant  officers — Line  officers  shall  take  rank  in 

each  grade  according  to  the  dates  of  their  commissions.  (U.S.  1467.)  A  Chief  Boat- 
swain is  classed  as  a  line  officer.  (See  COMMAND,  21.)  File  11130-36,  J.  A.  G.,  Dec.  28, 
1916. 

24.  Probation— Chief  boatswain  placed  on  probation.    Case  approved  by  the  President. 

G.  C.  M.  Rec.,  No.  24405. 

25.  Retired  boatswain— Tried  by  general  court-martial.    G.  C.  M.  Rec.,  32614. 

26.  Retired  chief  boatswain— Tried  by  general  court-martial.    C.  M.  0. 15, 1915. 

27.  Retirement.   See  RETIREMENT  OF  OFFICERS,  53. 

28.  Sallmakers  and  chief  sailmakers — Are  classed  as  staff  officers.    See  COMMAND,  21. 

29.  Sentence — The  department  favors  loss  of  pay  rather  than  loss  of  members  for  com- 

missioned warrant  officers.    C.  M.  O.  48, 1915,  5.    See  also  PAY,  100. 


642  WARRANT   OFFICERS. 

30.  Same — The  law  governing  the  promotion  of  a  commissioned  warrant  officer  does  not 

give  him  the  ri^ht  of  promotion  by  reason  of  seniority,  and  the  department  has  on 
numerous  occasions  expressed  its  disapproval  of  a  form  of  sentence  which  involves 
loss  of  numbers  in  the  case  of  a  commissioned  warrant  officer  as  practically  it  is  without 
any  effect.  In  order  that  there  may  be  uniformity  in  the  sentences  adjudged,  it  is 
desirable  that  courts-martial  use  the  following  form  and  make  it  a  basis  for  adjudging 
sentences  in  the  cases  of  commissioned  warrant  officers: 

"The  court,  therefore,  sentences  him , .  to  be  restricted  to  his  ship  or 

station  for  a  period  of ( )  months,  and  to  lose dollars  ($ )  per 

month  of  his  pay  for  a  period  of ( )  months."    C.  M.  O.  37, 1914;  52, 19 . 4. 

31.  Staff  officers — Carpenters  and  chief  carpenters,  sailmakers  and  chief  sailmakers. 

pharmacists  and  chief  pharmacists,  pay  clerks  and  chief  pay  clerks,  are  classed  as  stall 
officers.  See  COMMAND,  21. 

32.  Summary  courts-martial — A  warrant  officer  when  actually  commanding  a  naval 

vessel  may  convene  summary  courts-martial.  See  COUBT,  >196;  SUMMARY  COURTS- 
MARTIAL,  7,  21, 105. 

33.  Same — A  warrant  officer  (other  than  commissioned  warrant  officers)  may  not  sit  as  a 

member  of  a  naval  court-martial.    See  COURT,  192, 194;  WARRANT  OFFICERS,  8. 

34.  Same— Commissioned  warrant  officers  may  sit  as  members  of  summary  courts-martial. 

See  CHIEF  BOATSWAINS,  2. 

WARRANT  OFFICER'S   STEWARD. 

1.  General  court-martial— Tried  by.    C.  M.  O.  90,  1890;  98, 1894. 

WATCH  OFFICERS.    See  also  OFFICER-OF-THE-DECK. 

1.  Drunkenness  of.    See  DRUNKENNESS,  99. 

2.  Leaving  station  before  being  regularly  relieved— "It  must,  indeed,  be  obvious  to 

the  most  ordinary  intelligence  that  if  an  officer  can  not  be  trusted  in  his  watch,  he 
has  yet  to  learn  the  simplest  practical  duties  of  his  profession,  and  is  unfitted  for  a 
station  where  the  lives  of  others,  as  well  as  the  honor  of  his  country,  may  depend  on 
his  vigilance  and  fidelity."  G.  O.  31,  Mar.  22, 1864. 

3.  Loyalty  and  zeal— A  board  of  investigation  in  making  its  report  stated  that  the  watch 

officers  of  the  ship  "seem  to  lack  familiarity,  if  not  with  the  regulations,  at  least  with 
the  customs  and  traditions  of  the  Navy  as  defining  the  loyalty  and  zeal  which  should 
characterize  their  attitude  toward  their  commanding  officer  and  their  ship."  File 
3558-04,  J.  A.  G.,  Apr.  21,  1904.  See  also  C.  M.  O.  86,  1898. 

WEAK-MINDED.    See  INSANITY,  6. 

WEAPONS. 

1.  Carrying  concealed  deadly  weapons.    See  CARRYING  CONCEALED  WEAPONS,  1. 

WEATHER. 

1.  Extension  of  time  for  building  a  naval  vessel — Severe  winter  weather  is  not  regarded 
as  a  sufficient  ground  for  claiming  an  extension  of  time  for  building  a  naval  vessel. 
The  contractors  are  presumed  to  have  assumed  the  risk  of  delay  on  such  account. 
File  3788-04,  May  31, 1904. 

WEDDINGS. 

1.  Common  law  marriage.    See  DEATH  GRATUITY,  12;  WIFE,  3,  5. 

2.  Prisoner— Married  while  in  a  naval  prison.    See  MARRIAGE,  2. 

WHEN  ON  SHORE  ABUSING  AND  MALTREATING  AN  INHABITANT. 

1.  Enlisted  man— Charged  with.    C.  M.  O.  49, 1915, 10. 

WHEN  ON  SHORE  PLUNDERING  AN  INHABITANT. 

l.  Enlisted  man— Charged  with.    C.  M.  0. 17, 1910, 11;  21, 1910, 15. 

WHOLLY  RETIRED. 

1.  Definition— "Wholly  retired"  is  a  phrase  coined  for  the  purpose  of  conveying,  with 
reference  to  officers,  the  same  idea  as  attaches  to  the  word  "discharged  "  when  applied 
to  enlisted  men.  File  26260-1392  and  697,  J.  A.  G.,  June  29,  1911,  p.  25J. 

WIDOW. 

1.  Death  gratuity— Payment  to.    See  DEATH  GRATUITY,  30. 

2.  Naturalization  of.    See  CITIZENSHIP,  39. 


WIFE.  643 

WIFE. 

1.  Allotments— Chief  carpenter  confined  in  Government  Hospital  for  the  Insane.    See 

ALLOTMENTS,  3. 

2.  Citizenship  of.    See  CITIZENSHIP,  40. 

3.  Common  law  wife— Defined  and  discussed.    File  26254-1936,  J.  A.  G.,  Jan.  29,  1916. 

See  also  DEATH  GRATUITY,  12;  WIFE,  5. 

4.  Same— Death  gratuity.   See  DEATH  GRATUITY,  12. 

5.  Common  law  wife  as  a  witness— In  the  case  of  a  coal  passer,  United  States  Navy, 

tried  by  general  court-martial,  there  was  called  by  the  prosecution  a  witness  whose 
competency  the  defense  challenged  on  the  ground  that  she  was  the  common  law  wife 
of  the  accused.  The  defense  introduced  testimony  to  show  the  relation  existing 
between  the  accused  and  the  witness,  and  that  such  relation  created  a  common  law 
marriage  relation  between  them.  Counsel  for  the  defense  also  presented  a  brief  to 
the  court,  setting  forth  the  laws  of  Pennsylvania  governing  such  status,  which  laws 
supported  counsel's  contention.  The  court  properly  sustained  the  objection  of  the 
defense  and  declared  the  witness  incompetent  on  the  ground  that  she  was  the  common 
law  wife  of  the  accused.  G.  C.  M.  Rec.  No.  32186;  C.  M.  O.  22, 1916, 8. 

6.  Divorce.    See  CFVTL  COURTS,  7. 

7.  Nonsupport  of  wife— By  husband  (officer).    See  CIVIL-COURTS,  7. 

By  husband  (enlisted  man).    File  7657-408,  Sec.  Navy,  Oct.  28, 1916. 

8.  Privilege — Judge  Advocate  objected  to  testimony  of  accused  on  ground  that  his  state- 

ments were  confidential  between  husband  and  wife.    G.  C.  M.  Rec.  31509,  p.  51. 

9.  Quarrel,  assault,  and  strike — A  warrant  officer  (gunner)  was  tried  by  general  court- 

martial,  in  that  he  did  "quarrel  with,  assault,  and  strike  his  wife."    C.  M.  O.  5, 1913. 

10.  Willfully  and  maliciously  and  without  justifiable  cause,  assault,  strike,  and 

choke"  Ills  wife — By  officer  who  was  tried  by  general  court-martial  for  the  offense, 
under  the  charge  of  "Conduct  unbecoming  an  officer  and  a  gentleman."  G.  C.  M. 
Rec.  No.  31509. 

11.  Witness  against  her  husband — The  accused  attempted  to  introduce  his  wife  as  a 
T.I      witness  in  his  behalf.    Objection  thereto  was  made  by  the  judge  advocate  and  prop- 
erly sustained  by  the  court.    The  judge  advocate  cited  in  support  of  his  objection 
C.  M.  O.  21, 1910,  p.  13  etseq.;  also  Secretaryof  the  Navy's  letter  of  March  9, 1912,  File 
26251-5S20,  which  latter  reference  cites  further  C.  M.  0. 17,  1910,  p.  7;  Winth.,  p.  507; 
and  Forms  of  Procedure,  1910,  p.  136.    (To  the  same  effect,  see  File  5°59-41,  J.  A. 
G.,  May  16,  1907.)    Counsel  for  the  accused  cited  in  support  of  the  competency  of  a 
wife  to  testify  in  behalf  of  her  husband,  Jones  on  Evidence.    A  reference  to  this  work 
on  evidence  (sec.  753)  shows  that  contrary  to  the  contention  of  counsel  for  the  accused, 
the  rule  is  stated  therein  as  follows: 

"In  any  criminal  prosecution,  neither  spouse  is  a  competent  witness  for  or  against 
the  other.  A  well-recognized  exception  to  this  rule,  arising  from  necessity,  exists 
in  prosecutions  for  personal  injury  committed  by  one  spouse  upon  the  other."  C. 
M.  O.  31,  1914,  2. 

This  class  covers  all  communications  of  a  confidential  nature  made  during  the  con- 
tinuance of  marriage.  In  personal  assaults,  however,  of  the  one  against  the  other, 
the  testimony  of  either  as  against  the  defendant  is  admissible.  ( Forms  of  Procedure, 
1910,  p.  143.)  See  also  G.  C.  M.  Rec.  22029;  24813;  File  5859-41,  J.  A.  G.,  May  16,  1907. 
26251-5S20;  36  J.  A.  G.,  369;  WITNESSES,  52  (p.  651). 

12.  Same— In  a  summary  court-martial  case  where  the  court  permitted  the  wife  of  the 

accused  to  testify  the  department  disapproved  the  finding  and  acquittal,  stating  in 
part:  "In  view  of  the  above,  and  also  the  fact  that  had  the  testimony  of  the  wife  of 
the  accused  been  excluded  the  court  would  probably  have  arrived  at  a  different 
finding,  the  finding  and  acquittal  on  the  first  specification  are  disapproved."  File 
262V7-3064,  Sec.  Navy ,  July  27, 1915. 

13.  Same— Whereas  it  might  appear  that  no  good  ground  exists  to  exclude  the  testimony 

of  either  the  husband  or  wife  for  the  other,  public  policy  has  caused  the  rule  to  be 
laid  in  common  law  that  either  is  incompetent  to  testify  either  for  or  against  the  other. 
One  of  the  principles  upon  which  this  rule  is  founded  is  that,  though  called  in  behalf 
of  the  other,  yet  no  witness  is  privileged  to  impart  only  what  favorable  point  may  be 
within  his  or  her  knowledge,  but  must  submit  to  cross-examination,  and  under  such 
procedure  might  be  called  upon  to  disclose  facts  of  a  very  damaging  nature,  which 
might  be  so  serious  as  to  materially  injure  the  other's  cause,  even  to  the  extent  of 
a  conviction,  and  by  so  doing  the  domestic  relations  would  be  seriously  affected  and 
probably  family  peace  destroyed. 


644  WIFE. 

Hence  the  rule,  though  departed  from  in  some  States,  is  fixed  in  so  far  as  United 
States  courts  are  concerned,  and  naval  courts-martial  in  their  proceedings  should  be 
governed  by  the  rules  of  evidence  as  laid  down  in  such  courts. 

The  following  excerpts  bearing  on  this  changing  of  the  rule  in  some  of  the  States, 
are  taken  from  Federal  Reporter  (vol.  32,  p.  571): 

Neither  the  removal  of  the  disability  of  interest,  nor  allowing  the  defendant  in  a 
criminal  action  to  testify  in  his  own  behalf,  renders  the  wife  of  such  defendant  a  com- 
petent witness.  The  rule  excluding  her  testimony  where  her  husband  is  a  party  rests 
solely  upon  public  policy.  (U.  S.  v.  Crow  Dog  (Dak),  14  N.  W.  Rep.,  437.)  The 
common-law  rule  disabling  the  husband  and  wife  from  being  witnesses  for  or  against 
each  other  has  been  changed  in  Iowa  so  far  as  to  permit  them  to  testify  for  each  other 
in  a  civil  proceeding  by  one  against  the  other.  (Parcell  v.  McReynolds.  33  N.  W. 
Rep.,  139.)  In  Pennsylvania,  the  statute  only  disables  the  husband  and  wife  from 
giving  evidence  against  each  other.  (Pleasonton  v.  Nutt,  8  Atl.  Rep.,  63.)  In  Michi- 
gan, the  husband  can  not  give  testimony  for  or  against  the  wife  without  her  consent, 
except  when  the  title  to  the  separate  property  of  either  is  in  litigation  between  them, 
when  the  statute  permits  either  to  testify  to  facts  which  lie  at  the  foundation  of  the 
ownership  of  the  property.  (Hunt  v.  Eaton,  21  N.  W.  Rep.,  429.)  In  Minnesota, 
neither  husband  nor  wife  can  give  testimony  for  or  against  the  other  without  the 
other's  consent,  except  In  the  case  of  a  civil  action  maintained  by  one  against  the 
other.  (Huot  v.  Wise,  6  N.  W.  Rep.,  425.)  The  same  statute  has  been  enacted  in 
Utah.  (U.  S.  v.  Bassett,  13  Pac.  Rep.,  237.)  In  Florida,  the  common-law  rule  has 
been  modified  to  the  extent  of  permitting  the  wife  to  testify  where  her  husband  is 
a  party;  but  the  same  right  is  not  accorded  to  the  husband  where  the  wife  is  a  party. 
(Schnabel  v.  Betts,  1  South.  Rep.,  692.)  In  Vermont,  the  wife  has  been  rendered  a 
competent  witness  in  a  number  of  cases,  but  the  disqualification  of  the  husband 
exists  as  at  common  law,  except  in  divorce  cases.  (Witters  v.  Sowles,  28  Fed.,  121.) 

The  States  of  Illinois  and  Wisconsin  have  also  made  special  rules  regarding  the  com- 
petency of  the  husband  and  the  wife  as  witnesses  for  or  against  the  other. 

In  the  case  of  the  United  States  v.  Jones  (District  Court,  D.  South  Carolina,  October, 
1887)  (32  Fed.,  569),  the  court  said: 

"  There  can  be  no  doubt  that  at  common  law  a  wife  is  not  a  competent  witness  for 
or  against  her  husband.  And  this  is  so,  not  on  account  of  interest,  but  on  the  ground 
of  public  policy.  (1  Greenl.  Ev.,  par.  334;  Stein  v.  Bowman,  13  Pet.,  221;  Lucas  v. 
Brooks,  18  Wall.,  452.) 

"  There  exists  no  statute  of  the  United  States  removing  this  disability.  No  act 
of  the  State  of  South  Carolina  has  changed  the  common  law  on  this  subject.  (State  v. 
Workman,  15  S.  C.,  545.)  And,  although  the  rule  has  been  put  upon  the  ground  that 
confidential  communications  between  husband  and  wife  should  not  be  disclosed, 
it  has  been  applied  to  a  case  in  which  it  was  sought  to  prove  an  alibi  bv  the  wife. 
(State  v.  Dodson,  16  S.  C.,  453.)  In  actions  for  divorce,  and  for  violence  to  her  person, 
the  wife  has  been  permitted  to  testify.  (U.  S.  v.  Smalhvood,  5  Cranch,  C.  C.,  35.) 
These  are  exceptions.  It  was  error,  therefore,  to  permit  her  to  be  called  to  testify." 

In  the  case  of  Stein  v.  Bowman  (38  U.  S.  Rept.,  222)  on  appeal  to  the  Supreme 
Court  of  the  United  States,  one  of  the  points  of  contention  related  to  the  fact  that  the 
wife  of  one  of  the  parties  to  the  cause  had  been  placed  upon  the  stand  as  a  witness. 

The  court  in  this  case  recited  as  follows: 

"It  is,  however,  admitted,  in  all  the  cases,  that  the  wife  is  not  competent,  except 
in  cases  of  violence  upon  her  person,  directly  to  criminate  her  husband;  or  to  disclose 
that  which  she  has  learned  from  him  in  their  confidential  intercourse.  Some  color 
Is  found  in  some  of  the  elementary  works  for  the  suggestion,  that  this  rule,  being 
founded  on  the  confidential  relations  of  the  parties  will  protect  either  from  the  neces- 
sity of  a  disclosure;  but  will  not  prohibit  either  from  voluntarily  making  any  dis- 
closure of  matters  received  in  confidence;  and  the  wife  and  the  husband  have  been 
viewed,  in  this  respect,  as  having  a  right  to  protection  from  a  disclosure,  on  the  same 
principle  as  an  attorney  is  protected  from  a  disclosure  of  the  facts  communicated  to 
him  by  his  client. 

"The  rule  which  protects  an  attorney  in  such  a  case  is  founded  on  public  policy, 
and  may  be  essential  in  the  administration  of  justice;  but  this  privilege  is  the  rule 
which  protects  the  domestic  relations  from  exposure,  rests  upon  considerations  con- 
nected with  the  peace  of  families.  And  it  is  conceived  that  this  principle  does  not 
merely  afford  protection  to  the  husband  and  wife,  which  they  are  at  liberty  to  invoke 
or  not,  at  their  discretion,  when  the  question  is  propounded;  but  it  renders  them  in- 
competent to  disclose  facts  in  evidence  in  violation  of  the  rule." 


WIFE.  645 

Winthrop  on  page  507  states  that  though  the  general  rule  of  the  law  of  evidence, 
founded  on  public  policy,  that  neither  the  husband  nor  wife  is  competent  as  a  witness 
either  for  or  against  the  other,  though  departed  from  in  some  of  the  States,  is  strictly 
held  in  the  criminal  courts  of  the  United  States  and  in  courts-martial,  and  that  it  extends 
to  all  cases.  C.  M.  O.  21,  1910, 13-15.  See  also  EVIDENCE,  82  (p.  223.) 

WILKES  EXPEDITION.    See  File  9336-1418,  J.  A.  G.,  Jan.  20, 1916. 

WILLS. 

1.  Ambiguous  description  of  beneficiaries — "Greenleaf  also  says  in  his  work  on  evi- 
dence (vol.  1,  s.  291,  p.  411, 10th  ed.),  in  considering  the  cases  of  ambiguous  description 
of  beneficiaries  under  wills:  *  *  *  'The  general  principle  in  all  these  cases  is  this, 
that  if  there  be  a  mistake  in  the  name  of  the  devisee,  but  a  right  description  of  him,  the 
court  may  act  upon  such  right  description.'  *  *  * 

"It  may  be  admitted,  that,  in  all  cases  in  which  a  difiiculty  arises  in  applying 
the  words  of  a  will  *  *  *  to  the  person  of  the  devisee,  the  difficulty  or  ambiguity, 
*  *  *  may  be  rebutted  and  removed  by  the  production  of  further  evidence  upon 
the  same  subject  calculated  to  explain  *  *  *  who  was  the  person  really  intended 
to  take  under  the  will.  *  *  *  But  the  cases  to  which  this  construction  applies 
will  be  found  to  range  themselves  into  two  separate  classes,  *  *  *.  The  other 
class  of  cases  is  that,  in  which  the  description  contained  in  the  will  *  *  *  of  the 
person  who  is  intended  to  take,  is  true  in  part,  but  not  true  in  every  particular. 
As,  *  *  *  where  an  estate  is  devised  to  a  person  whose  surname  or  Christian 
name  is  mistaken;  or  whoso  description  is  imperfect  or  inaccurate;  in  which  latter 
class  of  cases  parol  evidence  is  admissible  to  show  *  *  *  who  was  the  devisee 
intended  to  take,  provided  there  is  sufficient  indication  of  intention  appearing  on 
the  face  of  the  will  to  justify  the  application  of  the  evidence."  (Miller  v.  Travers, 
8  Bing.  244,  cited  in  Greenleaf,  sec.  301,  p.  431, 10th  ed.)  File  26543-48  and  48:1,  J.  A. 
G.,  Oct.  10, 1910,  p.  4. 

2.  Mariner  at  sea— Under  the  laws  of  New  York  unwritten  wills  of  personal  property 

are  allowed  when  made  "by  a  mariner  while  at  sea."  It  is  understood  that  similar 
statutory  provisions  exist  in  other  jurisdictions,  but  are  not  general.  File  7657-231, 
J.  A.  G.,  May  1,  1914;  26250-477:6J,  J.  A.  G.,  Oct.  6,  1914. 

3.  Unwritten  wills.    See  WILLS,  2. 

"WILLFUL  AND  MALICIOUS."    C.  M.  O.  146,  1901,  4. 

"WILLFUL  DESTRUCTION."    See  GUILTY  m  A  LESS  DEGREE  THAN  CHARGED,  50. 

WILLFUL  DESTRUCTION  OF  GOVERNMENT  PROPERTY. 

1.  Paymaster's  clerk— Charged  with.    C.  M.  O.  37,  1912. 

"  WILLFUL  INJURY."    See  GUILTY  IN  A  LESS  DEGREE  THAN  CHARGED,  50. 

WILLFUL  NEGLECT  OF  DUTY. 

1.  Officers— Charged  with.    C.  M.  O.  1, 1882;  6, 1883. 

WILLFULLY.    See  also  KNOWINGLY;  MANSLAUGHTER,  13  (p.  353). 

1.  Definition— The  word  "willful"  or  "willfully,"  is  a  term  used  in  averring  or  describing 
an  act,  particularly  one  charged  as  a  crime,  to  show  that  it  was  done  in  the  free  activity 
of  the  perpetrator's  will.  C.  M.  0. 14, 1910, 11.  Seealso  C.  M.  O.  47, 1910, 8;  30, 1910, 
9;  23, 1911,  5;  10, 1912,  6-7. 

2.  Fraudulent  enlistment.    See  C.  M.  O.  12, 1911,  5. 

3.  Maliciously — "Willfully"  distinguished  from  "maliciously."    See  MALICIOUSLY,  1. 

WILLFULLY  AND  DELIBERATELY.    See  "DELIBERATELY  AND  WILLFULLY." 

WILLFULLY  AND  KNOWINGLY. 

1.  Definition.    See  G.  C.  M.  Rec.  24983. 

WILLFULLY  AND  MALICIOUSLY. 

1.  Assault.    See  ASSAULT,  28. 

2.  Definition— Concerning  the  part  of  the  finding  that  the  words  "willfully  and  malicious- 

ly" were  not  proved,  these  words  have  formed  part  of  specifications  of  offenses  of 
assault  and  battery  of  various  kinds  in  the  Navy  for  many  years.  The  word  "will- 
fully" has  in  law  a  number  of  meanings,  depending  upon  the  necessity  for  its  use. 
Thus,  it  signifies  intentionally  as  distinguished  from  accidentally;  or  consciously; 


646  WILLFULLY    AND   MALICIOUSLY. 

or  designedly;  or  regardless  of  whether  an  act  is  done  rightfully  or  wrongfully;  or 
with  evil  intent;  or  governed  by  the  will,  without  yielding  to  reason;  or  knowingly; 
or  a  willingness  to  commit  an  act.  (Words  and  Phrases,  etc.,  v.  8,  p.  7468,  et  seq.) 
And  as  also  said  in  the  same  work,  citing  cases  (p.  7479): 

"<  Willful '  is  a  word  of  familiar  use  in  every  branch  of  the  law,  and  it  amounts  to 
nothing  more  than  this:  That  the  person  knows  what  he  is  doing,  and  is  a  free  agent." 
C.  M.  O.  10, 1912,  6. 

WIRELESS  TELEGRAPHY. 

1.  Interference  with— By  private  parties.    File  7239-4,  June,  1907.     • 

WITHDRAWAL. 

1.  Charges  and  specifications.    See  NOLLE  PROSEQUI. 

2.  Resignations,  of— After  a  resignation  has  been  accepted  it  may  not  be  withdrawn. 

See  RESIGNATIONS,  27,  28. 

"WITHOUT  JUSTIFIABLE  CAUSE."    See  File  26251-12159,  Sec.  Navy.  Dec.  9,  1916, 
p.  15;  FINDINGS,  62;  C.  M.  O.  5, 1917. 

WITNESSES. 

1.  Accused— Shall  enjoy  the  right  to  have  compulsory  process  for  obtaining  witnesses 

in  his  favor,  etc.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17. 

2.  Same— Right  to  be  confronted  by  witnesses  and  afforded  an  opportunity  to  cross- 

examine  them.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  16. 

3.  Accused  as  witness  in  his  own  behalf— Formerly,  in  criminal  prosecutions,  the 

accused  could  not  testify,  but  by  the  act  approved  March  16, 1878  (20  Stat.,  30),  it  was 
provided  t  hat  the  "  accused  shall  at  his  own  request,  but  no  t  otherwise,  be  a  competent 
witness,  and  his  failure  to  make  such  request  shall  not  create  a  presumption  against 
him."  Care  must  be  taken  by  the  court  that  the  accused  is  not  placed  on  the  stand 
unless  he,  himself,  requests  to  be  permitted  to  testify,  otherwise  a  fatal  error  is  com- 
mitted. The  record  must  affirmatively  show  that  the  statutory  request  was,  in 
fact,  made.  (Forms  of  Procedure,  1910,  p.  141.)  See  in  this  connection  C.  M.  O.  65, 
1907. 

With  reference  to  the  fact  that  no  presumption  lies  against  the  accused  on 
account  of  his  failure  to  testify,  the  Supreme  Court  held  that  it  was  not  allowable 
to  make  "comment,  especially  hostile  comment:  upon  such  failure."  "The  minds 
of  the  jurors,"  it  was  further  held. "  can .only  remain  unaffected  fro  ta  this  circumstance 
by  excluding  all  reference  to  it.''  (Wilson  v.  U.  8.,  149  U.  S.,  60.)  It  is  accordingly 
highly  improper  for  the  judge  advocate,  in  summing  up  the  case  for  the  prosecution, 
to  comment  on  the  failure  of  the  accused  to  take  th$  stand  in  his  own  behalf.  ( Forms 
of  Procedure,  p.  141.} 

4.  Same— In  weighing  the  evidence  of  the  accused  the  Supreme  Court  has  held  that 

"the  testimony  of  the  defendant  in  a  criminal  case  is  to  be  considered  and  weighed 
by  the  jury,  taking  all  the  evidence  into  consideration,  and  giving  such  weight  to 
the  testimony  as  in  their  judgment  it  ought  to  have."  (Forms  of  Procedure,  1910, 
p.  140.) 

The  testimony  of  an  accused  should  not  be  accorded  entire  credit  unless  corrob- 
orated. He  is  necessarily  an  interested  party  and  very  probably  would  color  his 
testimony  in  order  to  make  his  acts  appear  in  as  favorable  light  as  possible.  (C.  M.  O. 
42,  1909,  4-5;  28,  1910,  6;  14.  1913,  4;  20, 1913,  5;  22, 1913, 5.)  See  also  WITNESSES,  7. 

5.  Same — "The  law  provides  that  the  accused  shall  at  his  own  request  but  not  otherwise, 

be  a  competent  witness  and  shall  be  allowed  to  testify  in  his  own  behalf."  (Forms 
of  Procedure,  1910,  p.  33;  C.  M.  0. 117,  1902,  9.) 

"  Parties  to  the  cause  testifying  on  their  own  offer  are  considered  as  thereby  waiving 
their  privilege  as  to  the  subject  matter  of  their  testimony  in  chief  and  must  submit 
to  a  full  cross-examination  thereon,  notwithstanding  the  answers  tend  to  criminate 
or  disgrace  them."  (Reynolds'  Stephen  on  Evidence,  p.  172,  art.  120.  See  also 
Foster  ».  Pierce,  11  Cush.,  437,  59  Amer.  Dec.  152;  Fitzpatrick  v.  U.  S.,  178  U  S. 
304;  C.  M.  O.  55,  Mar.  1,  1910,  p.  10;  14, 1910,  p.  12;  17,  1910,  pp.  12-10;  26,  1910,  p.  4; 
28,  1910,  p.  4;  e,  1913,  p.  4;  8,  1913,  p.  5.)  "Where  an  accused  party  waives  his  con- 
stitutional privilege  of  silence,  takes  the  stand  in  his  own  behalf,  and  makes  his 
own  statements,  it  is  clear  that  the  prosecution  has  a  right  to  cross-examine  him 
upon  such  statement  with  the  same  latitude  as  would  be  exercised  in  the  case  of  an 
ordinary  witness,  as  to  the  circumstances  connecting  him  with  the  alleged  crime.  While 
no  inference  of  guilt  can  be  drawn  from  his  refusal  to  avail  himself  of  the  privilege 


WITNESSES.  647 

of  testifying,  he  has  no  right  to  set  forth  to  the  jury  all  the  facts  which  tend  in  his 
favor  without  laying  himself  open  to  cross-examination  upon  those  facts.    *    *    * 
Indeed,  we  know  of  no  reason  why  an  accused  person  who  takes  the  stand  as  a  witness 
should  not  be  subject  to  cross-examination  as  other  witnesses  are."    (Fitzpatrick 
V.  U.  S.,  178  U.  8.  304;  C.  M.  O.  17,  1910,  pp.  13-14.) 

"It  is  not  allowable  to  make  comment,  especially  hostile  comment,"  of  the  failure 
of  the  accused  to  take  the  stand  in  his  own  behalf  (Forms  of  Procedure,  1910,  p.  34; 
C.  M.  O.  31,  1910,  p.  3);  "and  his  failure  to  make  such  request  shall  not  create  any 
presumption  against  him"  (Forms  of  Procedure,  1910,  p.  33).  C.  M.  O.  29,  1914, 
14-15.  See  also  C.  M.  O.  54, 1902;  40,  1909,  2;  49, 1910,  9;  17,  1910,  12-16;  G.  C.  M.  Rec., 
21318,  21662.  22065.  22502. 

S.  Same — Should  not  be  placed  on  stand  without  his  consent  to  identify  a  document — 
The  submitting  of  documents  to  the  accused  for  identification  practically  amounts 
to  placing  him  upon  the  stand  as  a  witness  to  identify  papers  used  against  him  by 
the  prosecution,  which  is  contrary  to  the  provisions  of  tne  act  of  March  16, 1878  (20 
Stat.,30). 

7.  Same — The  testimony  of  the  accused  unsupported  by  corroborative  evidence  should 

not  be  accorded  entire  credit.  C.  M.  O.  42, 1909,  4,  5;  28, 1910,  6;  14, 1913,  4;  20, 1913, 5; 
22, 1913, 5.  See  also  WITNESSES,  4. 

8.  Same— Should  not  be  shown  as  withdrawing  after  testifying.    C.  M.  O.  47,  1910,  8; 

23, 1910,  5.    See  also  ACCUSED,  5. 

9.  Same— Testimony  of  accused  should  be  carefully  scrutinized  and  weighed.    C.  M.  O. 

14,  1913.  4;  20. 1913.  5;  22, 1913,  5.    See  also  C.  M.  O.  63, 1899,  1-2;  WITNESSES,  4. 

10.  Same — Should  not  be  warned— It  is  improper  and  contrary  to  the  Navy  Regulations 

and  Forms  of  Procedure,  1910,  page  26,  to  warn  or  caution  the  accused  to  not  converse 
upon  matters  pertaining  to  the  trial  during  its  continuance.  C.  M.  O.  47,  1910,  8; 

15,  1910,  5;  23,  1910,  5;  31,  1910,  3.    See  also  G.  C.  M.  Rec.  21217;  21279;  21401;  21422; 
JUDGE  ADVOCATE,  133;  WARNING,  3. 

11.  Same — It  is  improper  for  the  judge  advocate  to  comment  upon  the  fact  that  the  accused 

does  not  take  the  stand  and  testify  in  explanation  of  certain  matters  developed  by  the 
testimony.  Such  comment  is  improper,  it  being  the  right  of  the  accused  to  determine 
for  himself  the  question  whether  he  should  or  should  not  take  the  stand  in  his  own 
behalf.  The  act  approved  March  16, 1878  (20  Stat.  30),  contains  the  following  pro- 
vision: "That  in  *  *  *  proceedings  against  persons  charged  with  the  commis- 
sion of  crimes,  offenses,  and  misdemeanors,  in  *  *  *  courts-martial  and  courts 
of  inquiry  *  *  *  the  person  so  charged  shall,  at  his  own  request  but  not  otherwise, 
be  a  competent  witness.  And  his  failure  to  make  such  request  shall  not  create  any 
presumption  against  him."  C.  M.  O.  117,  1902,  8-9. 

12.  Acquittal— Casts  no  reflection  upon  any  witness,  etc.    See  ACQUITTAL,  31. 

13.  Affirmation.    See  OATHS. 

14.  Affray— Witness  of.    See  AFFRAY. 

15.  Appearance  and  manner — Of  witnesses  while  testifying.    See  COURT,  198;    EVI- 

DENCE, 129;  WITNESSES,  52. 

16.  Arresting  accused— Testimony  of  person  arresting  accused  should  be  corroborated  if 

practicable.    See  ARREST,  17;  EVIDENCE,  33, 34. 

17.  Assistance — While  on  the  witness  stand  is  irregular.    See  COUNSEL,  56;  JUDGE  AD- 

VOCATE, 129. 

18.  Cautioning— Ignorant  witnesses.   C.M.  0.14,1910, 12.   SeeaisoSELF-rNCRiMiNATiON,8. 

A  witness  on  stand  at  beginning  of  recess  should  be  cautioned  that  oath  is  still 
binding  at  end  of  recess.  (See  RECESS,  3.)  When  a  witness  is  recalled  he  should  be 
warned  that  the  oath  previously  taken  is  still  binding.  C.  M.  O.  47,  1910,  5. 

19.  Character  witnesses.    See  EVIDENCE,  12-22. 

20.  Charges  and  specifications— Reading  to  witnesses.    See  CHARGES  AND  SPECIFI- 

CATIONS, 105. 

21.  Children.    See  WITNESSES,  52. 

22.  Civil  authorities— Persons  in  naval  service  desired  by  civil  authorities  as  witnesses. 

See  CIVIL  AUTHORITIES,  50-52;  GENERAL  ORDER  No.  121,  Sept.  17, 1914. 

23.  Civil  courts — Naval  constructor  appearing  as  a  witness  in  a  case  where  the  United 

States  was  the  complainant.  Right  to  accept  "ordinary  mileage  and  attendance 
fees."  File  4565-4,  Oct.  23,  1906. 

Right  of  an  employee  of  the  department  who  attends  court  as  a  witness  other- 
wise than  as  a  witness'for  the  Government,  to  draw  salary  during  the  period  of  absence. 
File  6036-2,  Apr.  5. 1907. 

24.  Same— Judge  of  a  civil  court  as  a  witness.    See  DECK  COURTS,  58. 


648  WITNESSES. 

25.  Civilian  witnesses — Fees  for,  before  a  court  of  inquiry,    See  EXPERT  WITNESSES,  3.  4. 

26.  Same— Compulsory  attendance  of  civilian  witnesses  before  naval  courts-martial. 

C.  M.  0. 88. 1895, 15.    See  also  CONSTITUTIONAL  RIGHTS  OP  ACCUSED,  17. 

27.  Same— Safe-keeping  of  certain  civilian  witnesses  for  the  Department  of  Justice.    File 

7018-487,  J.  A.  G.,  Oct.  7,  1915,  quoting  File  26276-60;   2824-295.    See  also  File  1778, 
May  25, 1905;  COAST  GUARD,  1. 

28.  Common  law  wife — As  a  witness  for  or  against  her  husband.    See  WIFE,  5. 

29.  Competency  of— Objection  must  be  made  before  witness  leaves  stand.    See  EVIDENCE, 

79-84;  WITNESSES,  52. 

30.  Complaining  prosecuting  witness.    G.  C.  M.  Rec.  30562,  p.  36. 

31.  Complaining  witness.    C.  M.  O.  53, 1910,  2;  54, 1910,  2. 

32.  Compulsory  process— For  obtaining  witnesses  for  the  accused.    See  CONSTITUTIONAL 

RIGHTS  OF  ACCUSED,  17. 

33.  Congress — Member  of  the  House  of  Representatives  as  a  witness  before  a  naval  court 

of  inquiry.    See  CONGRESS,  12. 

34.  Contempt  of  court.   See  CONTEMPT  OF  COURT. 

35.  Coroner— As  witness.    C.  M.  O.  5,  1913,  11.    See  also  CONFESSIONS,  10. 

36.  Counsel  for  accused— Not  to  be  warned  or  shown  as  withdrawing.    See  COUNSEL, 

54;  WARNING,  5. 

37.  Same— Not  permitted  to  object  to  a  witness  answering  a  question  which  might  crimi- 

nate the  witness.    See  SELF  INCRIMINATION,  16. 

38.  Same— Should  not  improperly  assist  witness  on  stand.    C.  M.  O.  49,  1915,  10,  11.    See 

also  COUNSEL,  56. 

39.  Court— The  record  of  proceedings  should  show  that  the  court  had  been  afforded  an 

opportunity  to  question  witnesses.    C.  M.  O.  36,  1914,  6. 

40.  Court,  examined  by— Scope  of  examination— Questions  asked  by  members  of  the 


court  are  subject  to  objection  either  by  the  judge  advocate  or  counsel  for  the  accused, 
and  if  the  objection  is  sustained,  the  question  is  recorded  as  having  been  asked  "by 
a  member."  (C.  M.  O.  88,  1895,  p.  13;  17, 1910,  p.  7.)  If,  however,  the  objection  is 
overruled,  it  is  recorded  as  a  question  by  the  court  and  must  be  answered.  (Forms 
of  Procedure,  1910,  p.  26.) 

In  questioning  witnesses  the  court  occupies  an  impartial  position,  seeking  only  to 
obtain  additional  light  on  the  question  at  issue,  hence  the  rule  that  objection  may  be 
made  by  either  party  who  may  be  adversely  affected  by  the  asking  of  improper 
questions. 

A  member  may  put  such  questions  as  he  desires;  though,  since  members  must  be 
impartial  and  without  prejudice,  questions  by  them  should,  in  general,  be  for  the 
purpose  of  making  clear  the  meaning  of  testimony  already  given. 

With  reference  to  this  subject,  it  is  said  by  Winthrop  in  his  work  on  Military  Law 
and  Precedents  (vol.  1,  pp.  429-430): 

"While  it  is  no_part  of  the  province  of  the  court  to  conduct  either  the  prosecution 
or  the  defense,  it  is  open  to  any  member  to  put  questions  to  the  witnesses  for  either 
side.  But  this,  though  it  may  be  done  at  any  stage  of  a  protracted  examination 
where  some  matter,  which  may  be  forgotten  if  not  noticed  at  the  moment,  has  not 
been  made  quite  clear  by  the  witness,  is  in  general  postponed  until  both  the  parties 
have  concluded  their  examinations,  and  is  then  resorted  to  for  the  purpose  only  or 
mainly  of  the  elucidation  of  some  part  of  the  testimony  which  has  been  left  obscure. 
A  member  may  also  suggest  a  question  to  be  put  by  the  judge  advocate  or  accused 
where  he  has  omitted  to  elicit  some  material  particular.  Further,  while  the  court 
can  not  legally  'originate'  evidence,  i.  e.,  take  the  initiative  in  providing  any  part  of 
the  proofs,  yet  where,  with  a  view  to  a  more  thorough  investigation  of  the  case,  it 
desires  to  near  certain  evidence  not  introduced  by  either  party,  it  may  properly  call 
upon  the  judge  advocate  to  procure  the  same  if  practicable,  adjourning  for  a  reasonable 
period  to  allow  time  for  the  purpose.  New  testimony  thus  elicited  must  of  course 
be  received  subject  to  cross-examination  and  rebuttal  by  the  party  to  whom  it  is 
adverse." 

The  rules  applied  in  the  civil  courts  with  reference  to  the  examination  of  witnesses 
by  the  court,  are  stated  as  follows  in  Cyclopedia  of  Law  and  Procedure  (vol.  40,  pp. 
2439-2442): 

"  It  is  proper  for  a  trial  judge  to  ask  a  witness  questions  for  the  purpose  of  informing 
himself  or  the  jury  as  to  any  matters  material  to  the  issues,  whether  the  case  be  a  civil 
or  a  criminal  one,  provided  the  questions  are  not  such  as  to  injure  or  prejudice  the 
rights  of  either  party.  *  *  * 


WITNESSES.  649 

"  Ordinarily  a  very  few  questions  by  the  court  will  suffice  to  clear  up  a  doubtful  mat- 
ter. *  *  *  But  it  has  been  held  that  where  in  a  criminal  case  the  examination  of 
defendant  by  counsel  left  the  evidence  indefinite  and  conflicting  as  to  some  points, 
the  action  of  the  court  in  subjecting  him  to  a  lengthy  examination  as  to  such  points, 
but  without  opening  up  any  new  subject  or  putting  questions  in  a  prejudicial  form,  did 
not  call  for  a  new  trial,  although  it  was  not  to  be  commended. 

"  Where  the  court  undertakes  to  interrogate  a  witness  the  same  rules  as  to  the  form 
of  questions  as  apply  to  an  examination  by  counsel  should  be  applied,  although  the 
court  may,  in  its  discretion,  put  leading  questions  to  the  witness  when  necessary  to 
elicit  the  facts,  repeat  questions  previously  asked,  or  call  for  a  repetition  of  previous 
statements.  *  *  * 

"The  trial  judge  may  ex  mero  motu  Fof  his  own  mere  motion]  call  to  the  stand  wit- 
nesses who  have  not  been  called  by  either  party,  or,  when  necessary  to  arrive  at  the 
true  facts,  recall  a  witness  who  has  already  testified  in  order  to  question  him  further." 

Generally  speaking  it  may  be  said  that  members  of  courts-martial  may  impartially 
examine  witnesses  for  the  prosecution  or  defense,  with  a  view  to  arriving  at  the  truth 
and  are  allowed  greater  latitude  in  this  respect  than  the  parties;  but  this  power  can 
not  be  so  exercised  as  to  admit  evidence  which  is  clearly  improper.  (G.  C.  M.  Eec., 
29422.)  This  point  was  presented  in  the  present  case  during  the  examination  of  a 
witness  called  by  the  court,  said  witness  being  the  officer  who  had  previously  con- 
ducted an  official  investigation  of  the  accusations  against  the  accused  before  the 
department  ordered  his  trial  by  court-martial.  This  witness  had  no  personal  knowl- 
edge concerning  any  of  the  facts  at  issue,  but  was  asked  by  a  member  to  repeat  un- 
sworn statements  made  to  him  during  his  investigation  by  one  of  the  witnesses  who 
had  been  before  the  court  and  testified  for  the  prosecution.  This  question  clearly 
called  for  hearsay  testimony  concerning  the  facts  of  the  case,  and  the  objection  thereto 
made  by  counsel  for  the  accused,  was  properly  sustained.  The  only  possible  ground 
on  which  such  testimony  could  have  been  admissible  would  have  been  for  the  purpose 
of  impeaching  the  witness  for  the  prosecution.  However,  no  foundation  had  pre- 
viously been  laid,  as  is  required,  by  asking  the  witness,  when  on  the  stand,  whether 
witness  had  not,  at  a  specified  time  and  place,  made  a  certain  statement  contradictory 
of  the  testimony  given  before  the  court.  This  foundation,  as  stated,  had  not  been 
laid,  and  the  prosecution  and  defense  had  both  rested  when  the  investigating  officer 
was  called  as  a  witness  by  the  court,  and  was  asked  by  a  member  the  question  above 
mentioned  for  the  purpose  of  impeaching  the  prosecution's  witness.  Under  the 
circumstances,  this  question  was  open  to  objection  either  by  the  judge  advocate  or 
counsel  for  the  accused.  C.  M.  O.  19,  1915,  3-5.  See  also  C.  M.  O.  72,  1895,  2;  88 
1895,  13;  80,  1898. 

41.  Same — Leading  questions— The  court,  during  the  examination{  acting  as  judges,  may 

propound  leading  questions.  One  of  the  natural  parts  of  the  judicial  function,  in  its 
orthodox  and  sound  recognition,  is  the  judge's  power  and  duty  to  put  to  the  witness 
such  additional  questions  as  seem  to  him  desirable  to  elicit  the  truth  more  fully.  This 
just  exercise  of  his  functions  was  never  doubted  at  common  law;  the  judge  could  even 
call  a  new  witness  of  his  own  motion,  and  could  seek  evidence  to  inform  himself 
iudicially;  much  more  could  he  ask  additional  questions  of  a  witness  already  called 
but  imperfectly  examined. 

It  follows  that  a  judge's  questions  may  be  leading  in  form,  simply  because  the  reason 
for  the  prohibition  of  leading  questions  has  no  application  to  the  relation  between 
judge  and  witness. 

The  confusion  of  a  witness  would  be  a  further  valid  reason  why  leading  questions 
might,  in  the  discretion  of  the  court,  be  asked.  (See  Wigmore,  Sec.  784.)  File 
26262-1194,  J.  A.  G.,  June  16, 1911,  pp.  7-8. 

The  court  may,  in  its  discretion,  put  leading  questions  to  the  witness  when  neces- 
sary to  elicit  facts.  See  WITNESSES,  40. 

42.  Same — The  court  is  privileged  to  call  witnesses  or  recall  those  who  have_  previously 

testified  to  clear  up  any  doubtful  points  in  the  case,  but  when  such  action  is  taken 
the  witness  should  not  be  referred  to  as  one  called  in  rebuttal;  neither  should  such  be 
classed  as  a  witness  for  the  prosecution  or  the  defense,  but  simply  as  one  called  by  the 
court.  C.  M.  O.  21  1910, 12. 

43.  Court  should  assist-^  Where  accused  desires  certain  v.-itnesses.    C.  M.  0. 17, 1910, 8-10. 

44.  Court  of  Inquiry— Civilian  witnesses.    See  EXPERT  WITNESSES,  3. 

45.  Same — Has  power  to  issue  like  processes  to  compel  witnesses  to  appear  and  testify 

as  United  States  courts  of  criminal  jurisdiction.    See  COURTS  OF  INQUIRY,  52. 


650  WITNESSES. 

46.  Same— Witnesses  before  courts  of  inquiry  testify  under  oath.    See  COURTS  OF  IN- 

QUIRY. 53. 

47.  Same — Witness  fees.    See  COURTS  OF  INQUIRY,  3,  4. 

48.  Same — Member  of  Congress  as  witness.    See  CONGRESS,  12. 

49.  Same-^-Examination  of  witnesses  by  court.    See  COURTS  OF  INQUIRY,  55. 

Evidence  before  a  court  of  inquiry  is  under  oath.    See  COURTS  OF  INQUIRY,  53. 

50.  Credibility— Degrading  questions  may  not  be  asked  if  they  are  only  asked  to  impair 

the  credibility  of  the  witness.    See  REI.F-INCRIMINATION,  11. 

51.  Same — It  is  irregular  to  introduce  the  service  record  of  a  witness,  after  he  has  left  the 

stand,  for  the  purpose  of  attacking  his  credibility,  reading  from  said  record  extracts 
which  in  no  way  allect  his  credibility  or  general  character.  C.  M.  O.  47,  1910,  4-5. 
See  also  SERVICE  RECORDS,  25. 

52.  Same— May  be  affected  by  admission  upon  cross-examination  of  a  conviction  of  an 

offense  involving  moral  turpitude — During  the  trial  a  witness  for  the  prosecution 
was  questioned  in  cross-examination  by  counsel  for  the  accused  as  follows: 

"28.  Q.  Do  you  remember  ever  having  been  punished  for  having  another  man's 
clothing  in  your  possession?" 

This  question  was  objected  to  by  the  judge  advocate  on  the  ground  that  it  was 
irrelevant  and  covered  ground  that  had  nothing  to  do  with  this  case. 

COUNSEL.  "I  have  the  right  to  test  his  credibility." 

JUDGE  ADVOCATE.  "The  witness  should  be  instructed  that  the  question  he  has 
been  asked  involves  a  matter  of  criminality."  [See  SELF-INCRJMINATION,  11.] 

The  court  then  asked  the  counsel  if  he  wished  to  attack  the  credibility  of  the  witness. 

COUNSEL.  "Yes  sir.  Not  as  to  his  reputation  but  as  to  his  credibility  as  a  witness 
in  this  case.  I  want  to  prove  by  his  own  mouth  what  he  has  been  punished  for. 
I  have  a  right  to  do  that.  That  rule  holds  good  in  a  court  of  law  when  a  witness  gets 
on  the  stand.  'Did  you  not  serve  three  months  for  larceny  or  housebreaking'  is  a 
perfectly  competent  question  in  a  court  of  law." 

The  judge  advocate  did  not  reply.  The  court  instructed  the  witness  that  he  did 
not  have  to  answer  questions  that  would  tend  to  incriminate  or  degrade  him.  [See 
SELF-INCRIMINATION,  11, 12,17.] 

WITNESS.  "Yes,  sir.  I  don't  remember  having  another  man's  clothes.  I  remem- 
ber having  one  man's  jumper  in  my  possession  and  was  found  guilty  by  the  court; 
but  after  the  court  my  division  officer  made  it  his  business  to  look  it  up  and  I  was 
found  not  guilty.  I  did  five  days  bread  and  water,  which  was  a  very  serious  offense 
in  the  Navy,  and  I  would  have  gotten  more,  if  I  was  really  guilty,  by  a  summary 
court-martial."  (Rec.,  pp.  29,  30.) 

In  regard  to  the  above  the  judge  advocate,  on  the  one  hand,  contended,  "I  do  not 
believe  the  offense  of  'having  clothing  of  another  in  his  possession'  is  such  an  offense 
as  to  affect  his  credibility  as  a  witness.  It  is  not  an  infamous  crime,  not  a  capital 
crime."  Furthermore  he  made  the  point, "  It  is  a  rule  of  common  law  that  the  records 
of  a  former  trial  are  the  proper  evidence  of  the  trial  or  conviction." 

Counsel  for  the  accused,  on  the  other  hand,  although  he  did  not  move  to  strike  out 

the  testimony  of  this  witness,  in  his  oral  argument  stated,"  Now  we  come  to , 

the  man  convicted  for  having  another  man's  clothes  in  his  possession.  In  a  civil 
court  his  testimony  would  not  be  admitted,"  and,  in  effect,  questioned  the  competency 
of  this  witness. 

The  foregoing  brings  into  issue  the  following:  (1)  The  nature  of  an  offense,  the  con- 
viction of  which,  may  serve  as  a  basis  for  an  attempt  to  impeach  a  witness;  (2)  the  man- 
ner in  which  such  a  conviction  may  be  introduced  in  evidence;  and  (3)  the  weight  to 
be  given  testimony  of  this  character;  that  is,  does  evidence,  if  properly  introduced, 
of  a  conviction  of  an  offense  of  such  a  nature  as  to  be  admissible  for  the  purpose  of 
impeaching  a  witness  attack  the  competency  or  merely  the  credibility  of  such  witness? 

As  to  (1)  it  may  be  stated  as  the  weight  of  modern  authority  that,  "the  fact  that  a 
witness  has  been  convicted  of  crime  may  be  brought  out  as  bearing  on  his  credibility, 
where  the  crime  amounts  to  a  felony,  or  is  infamous  in  its  nature,  and  involves  moral 
turpitude.  But  it  is  usually  held  that  a  witness  is  not  to  be  discredited  by  showing 
his  conviction  of  a  mere  misdemeanor,  or  minor  offense  not  involving  moral  turpitude, 
or  infamous  in  its  nature."  (40  Cyc.  2C07.)  In  the  application  of  this  principle  the 
department  has  no  hesitancy  in  stating  that  it  does  not  consider  that  a  conviction 
of  a  strictly  military  offense,  such  as  "having  clothing  in  lucky  bag,"  could  be  intro- 
duced in  evidence  for  the  purpose  of  discrediting  a  witness;  but  it  can  not  accept  the 
contention  of  the  judge  advocate  in  this  case  that  the  offense  of  "having  unlawful 
possession  of  the  clothing  of  another"  is  a  strictly  military  offense  in  the  same  category 


WITNESSES.  651 

as  the  example  given  above,  but,  on  the  contrary,  considers  that  this  latter  oflense 
is  not  essentially  military  in  its  character,  and  that  it  does  involve  a  certain  degree 
of  moral  turpitude. 

As  to  (2),  the  manner  in  which  evidence  of  the  conviction  was  introduced,  "a  con- 
viction of  crime  is  properly  proved  by  the  record  or  a  properly  authenticated  copy 
thereof,  and  in  the  absence  of  any  controlling  statute  on  the  subject,  the  record  is 
the  only  competent  evidence  of  the  conviction,  and  parol  evidence  is  not  competent 
for  that  purpose  if  objected  to.  But  modern  statutes  very  generally  allow  th  e  witness 
to  be  cross-examined  as  to  conviction  of  crime;  and,  if  he  admits  his  conviction,  this 
is  sufficient  and  the  production  of  the  record  is  not  necessary."  (40  Cyc.  2640.)  The 
admission  of  this  witness,  therefore,  could  properly  be  accepted  by  the  courts  as  evi- 
dence of  his  conviction  of  the  offense  in  question. 

In  regard  to  (3),  the  question  as  to  whether  conviction  of  an  infamous  crime  affects 
the  competency  or  credibility  of  a  witness,  the  distinction  between  competency  and 
credibility  is  clearly  laid  down  in  Forms  of  Procedure,  1910,  pages  135,  136,  where 
it  is  stated  that  "at  present  there  are  few  persons  except  idiots,  the  insane,  intoxi- 
cated persons,  very  young  children,  and  the  wives  of  accused  persons  that  by  law 
are  not  competent  to  testify  *  *  *  it  may  be  stated  as  a  general  rule  that  all 
witnesses  capable  of  so  doing  are  entitled  to  testify,  and  that  it  rests  with  the  court 
in  its  capacity  as  a  jury  to  decide  how  much  weight  is  to  be  given  their  testimony." 

It  may  be  seen,  therefore,  from  a  consideration  of  the  foregoing  that  such  credence 
as  the  court  may  have  given  to  the  admissions  of  this  witness  regarding  his  conviction 
of  the  offense  in  question,  might  operate  to  affect  his  credibility,  but  not  his  compe- 
tency as  a  witness.  G.  C.  M.  Rec.  No.  31998;  C.  M.  O.  16,  1916,  7-9.  See  in  this  con- 
nection SELF-lNCRtMINATION,  11. 

The  question  of  the  credibility  of  the  testimony  given  by  a  witness  is  a  most  im- 
portant one,  for  upon  it  rests  the  decision  of  the  court  as  to  the  proof  of  the  various 
allegations.  When  the  character  for  veracity  of  a  witness  has  been  shown  to  be  bad — 
and  whether  this  has  been  done  or  not  is  a  matter  within  the  sound  judgment  and 
discretion  of  the  court — his  testimony  is  not  necessarily  to  be  wholly  disregarded, 
but  is  to  be  considered  in  connection  with  the  rest  of  the  testimony  and  such  credit 
given  to  it  as  it  appears  to  be  entitled  to  receive.  Also  when  a  witness  has  been  shown 
to  have  testified  falsely  to  a  certain  particular,  the  maxim  falsus  in  uno,  falsus  in 
omnibus,  need  not  always  be  applied,  nor  all  his  testimony  disregarded,  but  it  should 
be  weighed  in  connection  with  the  other  testimony,  especially  when  corroborated. 
The  general  manner  and  bearing  of  a  witness  is  an  important  consideration  in  weighing 
his  testimony.  (Forms  of  Procedure,  1910,  p.  140.)  See  also  EVIDENCE,  129. 

53.  Criticized  by  court — The  accused  was  on  the  stand  as  a  witness  in  his  own  behalf  and 

during  cross-examination  became  dictatorial  and  also  critical  of  the  manner  in  which 
the  questions  were  being  asked  him.  The  court  "cautioned  the  witness  that  he  is  to 
address  any  remarks  he  may  have  to  make  to  the  court  and  not  to  the  counsel  for  the 
judge  advocate,  and  not  to  try  to  dictate  in  which  way  he  shall  ask  the  questions, 
but  to  answer  the  questions  as  directly  as  possible,  and  any  objection  to  be  made  will 
be  made  to  the  court."  G.  C.  M.  Rec.,  30485,  pp.  494,  496. 

54.  Cross  examination— Witnesses  should  be  cross-examined  only  on  matter  brought 

out  in  the  examination  in  chief.  G.  C.  M.  Rec.  ,30485,  p.  36.  SeealsoG.  M.  0. 26, 1910, 
4;  8, 1913,  5. 

55.  Deck  court  officer— Not  a  competent  witness.    See  DECK  COURTS,  58. 

56.  Degrading  questions.   See  SELF-INCRIMINATION,  11, 12. 

57.  Disgraceful  questions.   See  SELF-INCRIMINATION,  11, 12. 

58.  Employee  of  Navy  Department— Who  attends  court  as  a  witness  otherwise  than  as 

a  witness  for  the  Government  is  not  entitled  to  draw  salary  during  the  period  absent 
from  work,  unless  such  absence  is  charged  to  his  annual  leave.  File  6036-2,  Apr.  5, 
1907. 

59.  Enlisted  men— "Such  document  [summons]  may  properly  be  addressed  directly  to 

the  man  and  transmitted  through  his  commanding  oflicer."  File  26504-52,  Sec.  Navy, 
July  21, 1909. 

60.  Examining  board— Testimony  before.    See  NAVAL  EXAMINING  BOARDS,  25, 26. 

61.  Excited— Weight  of  evidence.    See  AFFRAY,  1;  EVIDENCE,  128. 

62.  Exclusion  from  court  of  all  persons  who  might  be  witnesses.    See  COURT, 

126-128;  RECORD  OF  PROCEEDINGS,  105. 

63.  Extenuation—  Where  the  accused  goes  on  the  stand  at  his  own  request  as  a  witness  in 

extenuation  of  his  acts,  the  record  should  contain  the  proper  notation  that  he  was  a 
witness  in  extenuation.  C.  M.  0. 8, 1911, 4-€;  17, 1915, 2. 


652  WITNESSESt 

64.  Eyewitnesses.    See  WORDS  AND  PHRASES. 

65.  Facts— Witnesses  should  testify  as  to  facts.    C.  M.  0. 17, 1916,  9.    See  also  COURT,  199; 

OPINION,  15-17. 

66.  Fees.   See  ADDRESS,  3;  EXPERT  WITNESSES,  3, 4. 

67.  Husband  and  wife.    See  WIFE. 

68.  Identification — Preliminary  questions.    See  LEADING  QUESTIONS,  5. 

69.  Illegally  sworn.    See  case  of  Commodore  Barren,  in  which  case  witnesses  were  sworn 

by  the  judge  advocate  instead  of  by  the  president  of  the  court.    See  ESTOPPEL,  9. 

70.  Introductory  questions.    See  LEADING  QUESTIONS,  5. 

71.  Impeachment.    See  IMPEACHMENT. 

72.  Incompetent.    See  EVIDENCE,  65. 

73.  Intimidating  witnesses— Offense  charged  under  "Scandalous  conduct  tending  to 

the  destruction  of  good  morals."  G.  C.  M.  Rec.  32161.  See  also  G.C.  M.  Rec.  18904, 
p.  3  of  charges  and  specifications. 

74.  Judge  advocate— As  a  witness.    See  JUDGE  ADVOCATE,  130-136. 

75.  Judge  of  a  civil  court— As  a  witness.    See  DECK  COURTS,  58. 

76.  Manner,  bearing,  and  appearance — Of  witnesses  while  testifying.    See  COURT, 

198;  EVIDENCE,  129;  WITNESSES,  52. 

77.  Members    of    courts-martial— As  witnesses.    See  MEMBERS  OF  COURTS-MARTIAL, 

52-56. 

78.  Memory— Refreshing.    See  WITNESSES,  95-99. 

79.  Naval  examining  board — Unrecorded  presence  of  witnesses.    See  NAVAL  EXAMINING 

BOARDS,  25. 

80.  Same— Candidate  as  a  witness.    See  NAVAL  EXAMINING  BOARDS,  26. 

81.  Naval  Mllltla— Officer  of  Naval  Militia  called  as  a  witness  before  a  court-martial  of 

the  Regular  Navy.    See  NAVAL  MILITIA,  45,  46. 

82.  Numbering  of  questions.    See  RECORD  OF  PROCEEDINGS,  105. 

83.  Oaths.    See  OATHS. 

84.  Opinions— By  witnesses.    See  COURT,  199;  OPINION,  15-17;  WITNESSES,  65. 

85.  Ordinary  witnesses— Should  not  be  examined  as  an   expert.    See  EXPERT  WIT- 

NESSES, 9. 

86.  Prisoners — General   court-martial   prisoners  as   witnesses  before  civil  courts,  grand 

juries,  etc.  See  File  26276-17;  26276-33;  26276-36;  26276-93.  See  also  GENERAL  ORDER 
No.  121,  Sept.  17, 1914, 15:  PRISONERS,  3S,  39. 

87.  Private  litigation— An  officer  ordered  to  perform  travel  in  order  that  he  might  be  pres- 

ent to  testify  if  needed  in  a  suit  to  which  the  Government  is  not  a  party,  but  its 
interest  in  the  result  of  the  litigation  is  sufficiently  great  in  the  opinion  of  the  Secretary 
of  the  Navy  to  cause  the  officer  to  be  present,  is  entitled  to  mileage  for  the  travel 
performed.  (Compt.  Dec.,  July  28,  1915;  173  S.  &  A.  Memo.  3729.)  File  26254-1855; 
C.  M.  O.  35,  1915,  10. 

88.  Same — Prisoners.    See  GENERAL  ORDER  No.  121,  Sept.  17,  1914,  15;  WITNESSES,  86. 

89.  Same— Department  will  not  compel  an  officer  to  furnish  any  testimony  whatever 

for  use  in  private  litigation,  the  matter  not  being  one  under  its  official  cognizance. 
File  26276-136,  Sec.  Navy,  Apr.  17,  1916. 

90.  Prosecuting  witness— An  accused  appealed  from  the  sentence  of  a  deck  court,  one 

of  the  three  grounds  assigned  for  appealing  being  the  fact  that  the  deck-court  officer 
turned  prosecuting  witness  himself.  C.  M.  0. 14, 1911,  4.  See  also  DECK  COURTS,  58. 

91.  Questions— Should  be  numbered  properly.    See  RECORD  OF  PROCEEDINGS,  104,  105. 

92.  Recognizance.    See  INTENT,  2;  WORDS  AND  PHRASES. 

93.  Record  of  proceedings.    See  RECORD  OF  PROCEEDINGS. 

94.  Reflection.    See  ACQUITTAL,  31. 

95.  Refreshing  memory— A  witness  may  be  allowed  to  refresh  his  memory  by  reference 

to  a  memorandum,  provided  it  was  made  by  him  at  the  time  the  fact  or  transaction 
to  which  it  refers  occurred,  or  as  soon  thereafter  as  to  afford  the  presumption  that 
the  memory  of  the  witness  was  fresh  at  the  time  of  making  it.  If  the  paper  is  not 
one  made  by  the  witness,  it  must  appear  that  after  inspecting  it,  he  can  speak  from 
his  own  recollection;  otherwise  he  can  not  use  it.  The  privilege  of  using  a  memoran- 
dum does  not  authorize  the  witness  to  read  his  evidence  from  notes  previously  made. 
(Forms  of  Procedure,  1910,  p.  141.)  See  WITNESSES,  97. 

96.  Same— A  general  court-martial  ruled  that  the  proceedings  of  a  court  of  inquiry  can 

not  be  introduced  for  the  sole  purpose  of  refreshing  the  memory  of  the  Judge  advocate 
(who  officiated  as  such  before  the  court  of  inquiry),  he  offering  to  testify  as  a  witness. 
The  department  in  acting  upon  the  case  stated  in  part: 


WITNESSES.  653 

"It  is  the  official  duty  of  the  judge  advocate  of  a  court  of  inquiry  faithfully  to 
record  the  proceedings  and  the  testimony  taken  before  such  court,  and  he  must  attach 
his  signature  thereto.  I  am  of  opinion  that  such  a  record  is  therefore  admissible,  as 
would  be  any  memorandum  made  by  the  witness  at  the  time,  for  the  purpose  of  re- 
freshing his  memory,  whether  or  not  he  has  an  independent  recollection  in  the  matter. 
This,  of  course,  is  a  different  thing  from  introducing  the  record  in  evidence."  C.  M.  O. 
12, 1904, 3.  4.  See  also  COURTS  OF  INQUIRY,  20. 

97.  Same — While  a  witness  may  refresh  his  memory  from  memoranda  written  by  him- 

self, under  certain  conditions  (Forms  of  Procedure,  1910,  pp.  34-35. 139),  this  privilege 
of  using  a  memorandum  does  not  authorize  the  witness  to  read  his  evidence  from 
notes  previously  made  (Forms  of  Procedure,  1910.  p.  139).  C.  M.  O.  41,  1914,  5. 

98.  Same — The  court  improperly  allowed  a  witness  to  refresh  his  memory  by  holding 

a  telephone  conversation  and  obtaining  testimony  from  another  person,  which  con- 
versation the  witness  was  then  allowed  to  repeat  in  order  to  verify  a  name  previously 
given  as  that  of  a  person  by  whom  some  jewelry  had  been  pawned.  (See  Index- 
Digest,  1914,  p.  43.)  C.  M.  O.  9, 1916,  8. 

99.  Same— A  mess  attendant,  called  as  a  witness,  was  asked  who  the  officer  of  the  deck 

was  at  a  certain  time,  and  upon  his  answering  that  he  did  not  remember,  the  record 
stated  that  "a  recess  of  five  minutes  was  here  taken  to  give  the  witness  an  opportunity 
to  refresh  his  memory."  After  reconvening  the  question  was  answered  by  tne  witness. 
Such  a  course  of  procedure  was  improper.  A  midshipman  had  just  previously  testi- 
fied that  he  was  officer  of  the  deck,  and  other  witnesses  were  available,  if  it  had  at  all 
been  necessary  to  substantiate  this  midshipman's  testimony,  or  the  ship's  log  could 
have  been  introduced  to  prove  the  fact,  without  the  court  taking  a  recess  in  order  to 
permit  a  mess  attendant  to  look  up  the  official  records  of  the  ship.  C.  M.  0. 15, 1910, 5. 

100.  Refusing  to  answer  a  question— If  the  accused  goes  on  the  stand  voluntarily  in 

his  own  behalf  and  refuses  to  answer  a  question,  the  reason  for  his  refusing  should 
appear  on  the  record  and  not  be  made  to  appear  solely  by  inference.  C.  M.  O.  17, 
1910,  12,  13. 

101.  Representative.    See  CONGRESS,  12. 

102.  Retiring  board— Candidate  as  a  witness.    See  NAVAL  EXAMINING  BOARDS,  26. 

103.  Self-incriminatlon.    See  SELF-INCRIMINATION. 

104.  Single  witness.    See  EVIDENCE,  114. 

105.  Specifications— Read  to  witness  by  judge  advocate.    See  CHARGES  AND  SPECIFI- 

CATIONS, 105. 

106.  Spouse.   See  WIFE. 

107.  Summoning  of  witnesses.   See  WITNESSES,  59. 

Summons  to  persons,  to  appear  as  witnesses  before  summary  courts-martial,  under 
the  command  of  the  convening  authoricy  shall  be  transmitted  through  the  executive 
officer  or  officer  of  the  day;  to  other  naval  persons  through  the  usual  official  channels; 
and  to  civilians,  in  the  mode  best  calculated  to  reach  them.  (R-606(3).) 

108.  Transportation  of — Transportation  of  enlisted  men  of  the  Marine  Corps  as  witnesses 

before  courts-martial.    File  26276r8b,  Sec.  Navy,  June  11,  1909. 

109.  Usurpation — When  a  witness  while  testifying  states  his  opinion  as  to  guilt  or  innocence 

of  accused  he  usurps  the  prerogatives  of  the  court.  See  COURT,  199;  OPINION,  15-17; 
WITNESSES,  65. 

110.  Verification  of  testimony.    See  ACCUSED,  4;  EVIDENCE,  121-123. 

111.  Warning.   See  WARNING,  3,  5,  6,  7, 8, 9. 

112.  Weight— "  Where  two  witnesses  testify  with  regard  to  the  same  matter  and  one  of 

them  remembers  and  the  other  merely  does  not  remember  the  circumstances  of  the 
matter  *  *  *  the  evidence  of  him  who  remembers  must  be  accepted."  Ct.  Inq. 
Rec.,  4952,  p.  1801. 

113.  Weight  of  evidence  as  affected  by  number  of  witnesses— The  relative  number  of 

witnesses  for  the  prosecution  and  defense  is  by  no  means  decisive  in  general;  as  the 
relative  weight  of  the  evidence  depends  much  less  upon  the  number  of  the  witnesses 
than  upon  their  character,  their  relation  to  the  case,  and  the  circumstances  under 
which  their  testimony  is  given.  (Forms  of  Procedure,  1910,  p.  140.) 

114.  Same— In  general.    See  COURT,  198;  DRUNKENNESS,  100;  EVIDENCE,  126,  128,  129; 

REASONABLE  DOUBT;  WITNESSES,  4,  52, 112,  113. 

115.  Wife  of  accused.    See  WIFE;  WITNESSES,  52. 

116.  Youthful  witnesses.   See  WITNESSES,  52. 


654  WORDS  AND  PHRASES. 

WORDS  AND  PHRASES. 

A/ortiori—"  For  stronger  reasons."  (C.  M.  O.  6, 1915, 15.)  "With  stronger  reason;  much 
more."  (1  Bouv.,  1.)  C.  M.  O.  31,  1911,  5;  4.  1913,  56;  27,  1913,  14;  7,  1914,  10;  6, 

1915,  15;   13  J.  A.  G.,  483;   16  J.  A.  G.,  81;   File  5252-36,  J.  A.  G.,  May  5,  1910,  p.  7; 
26251-1963:1,  J.  A.  G.,  Aug.  17, 1910,  p.  13;  5362-35,  p.  9;  13  J.  A.  G.,  483. 

Ab  initio — "From  the  beginning."  (C.  M.  O.  12,  1915,  5.)  "From  the  beginning;  en- 
tirely; as  to  all  the  acts  done;  in  the  inception."  (1  Bouv.,  2.)  C.  M.  O.  21. 1898; 
12, 1915,  5;  COURT,  192. 

"Abandon  ship."    C.  M.  O.  22,  1883. 

Abscond.    See  THEFT,  19. 

Abet— "  To  encourage  or  set  another  on  to  commit  a  crime.  This  word  is  always  applied 
to  aiding  the  commission  of  a  crime.  To  abet  another  to  commit  a  murder,  is  to 
command,  procure,  or  counsel  him  to  commit  it."  (1  Bouv.,  51.)  See  AIDING  AND 
ABETTING. 

Absente  reo— "In  the  absence  of  the  defendant."    (C.  M.  O.  49,  1915,  12.) 

"Abstract  or  theoretical  questions."    C.  M.  O.  5,  1913,  8. 

•"  Academic  questions."    File  6427-^53,  p.  7. 

Accessory — "He  who  is  not  the  chief  actor  in  the  perpetration  of  the  offense,  nor  present 
at  its  performance,  but  is  in  some  way  concerned  therein,  either  before  or  after  the 
fact  committed."  (1  Bouv.,  58.) 

Accessories — In  a  general  court-martial  sentence.    See  ACCESSORIES;  SENTENCES,  3. 

Accomplice — "  One  who  is  concerned  in  the  commission  of  a  crime."  (1  Bouv.,  62.)  See 
ACCOMPLICE;  C.  M.  O.  8, 1913,  3-4. 

Accused — "One  who  is  charged  with  a  crime  or  a  misdemeanor."  (1  Bouv.,  66.)  See 
ACCUSED. 

•"Acquiescence  implies  consent,  and  consent  cures  error."    C.  M.  O.  14,  1911,  5,  8;  13, 

1916.  6;  ESTOPPEL,  9. 

Act  of  God — Under  the  term  "Act  of  God"  are  comprehended  all  misfortunes  and  acci- 
dents arising  from  inevitable  necessity,  which  human  prudence  could  not  foresee  or 
prevent. 

Act  of  war.    See  WAR,  28,  29. 

"Acts  of  a  treasonable  or  riotous  nature."    C.  M.  0. 14,  1910, 14. 

Ad  interim— "In  the  meantime."  (1  Bouv.,  90.)  File  26253-114;  22724-18,  p.  5;  COMMIS- 
SIONS, 1,  23,  29. 

Adlitem— "For  the  suit."    (1  Bouv.,  90.)    See  GUARDIAN,  1. 

Ad  testificandum.  See  GENERAL  ORDER  No.  121,  Sept.  17, 1914,  23;  WORDS  and  PHRASES 
(Subpoena  ad  testificandum). 

Ad  valorem—"  According  to  the  valuation."    (1  Bouv.,  91.) 

"Additional  ingredient."    C.  M.  O.  23,  1910, 11;  FRAUDULENT  ENLISTMENT,  50. 

Administration — Of  government— "The  management  of  the  executive  department  of 
the  Government.  Those  charged  with  the  management  of  the  executive  department 
of  the  Government."  (1  Bouv.,  96.) 

Admissions — "Confessions  or  voluntary  acknowledgments  made  by  a  party  of  the 
existence  or  truth  of  certain  facts."  (1  Bouv.,  102.)  See  ADMISSIONS. 

Admissions  against  interest.    See  ADMISSIONS  AGAINST  INTEREST. 

Admonition — "A  reprimand  from  a  judge  to  a  person  accused,  on  being  discharged, 
warning  him  of  the  consequences  of  his  conduct,  and  intimating  to  him  that  should 
he  be  guilty  of  the  same  fault  for  which  he  has  been  admonished,  he  will  be  punished 
with  greater  severity."  (1  Bouv.,  104.)  See  JUDGE  ADVOCATE,  6;  MARINE  EXAMIN- 
ING BOARDS,  2;  PROMOTION,  8. 

Affiant — One  who  makes  an  affidavit.    C.  M.  O.  48, 1915,  1;  AFFIDAVITS. 

Affidavit.    See  AFFIDAVITS,  4. 

Affinity— "Relationship  by  marriage  between  the  husband  and  the  blood  relations  of 
the  wife,  and  between  the  wife  and  the  blood  relations  of  the  husband."  See  DEATH 
GRATUITY,  26. 

Affirm— "To  make  a  solemn  religious  asseveration  in  the  nature  of  an  oath."  (1  Bouv., 
112.) 

Affirmation.    See  OATHS,  20. 

Affray — "The  fighting  of  two  or  more  persons  in  some  public  place  to  the  terror  of  the 
people."  Differs  from  a  riot  in  not  oemg  premeditated.  Fighting  in  a  private  place 
is  only  an  assault.  (1  Bouv.,  113.)  C.  M.  O.  23,  1911,  8,  11;  26,  1914;  EVIDENCE,  128. 

Aggravation — "That  which  increases  the  enormity  of  a  crime  or  the  injury  of  a  wrong." 
(1  Bouv.,  121.) 

Agreement  between  officers— As  to  quarters.    File  26254-2052,  July,  1916. 


WORDS    AND   PHRASES.  655 

Aiding  and  abetting.    See  AIDING  AND  ABETTING. 

Alcohol.  •  C.  M.  O.  42,  1909,  12.  13.  14;  24,  1914. 

Ale.    C.  M.  O.  7,  1911, 10. 

A I  ias— "Before;  at  another  time;  otherwise.  The  term  is  sometimes  used  to  indicate 
an  assumed  name."  (1  Bouv.,  129.)  C.  M.  O.  49,  1910,  11;  55,  1910,  6;  28,  1910,  8; 
25, 1914,  6;  29,  1914,  4,  7;  9,  1916,  5. 

Alibi— " Presence  in  another  place  than  that  described."  (1  Bouv.,  12S.)  C.  M.  O.  21, 
1910, 15;  6, 1915,  7;  WIFE,  13  (p.  644). 

Alimony.    G.  C.  M.  Rec.,  31509,  p.  4  of  charges  and  specifications;  DEBTS,  1. 

Alimony  pendente  lite — "Alimony  pendente  lite,  is  that  ordered  during  the  pendency  of 
tha'suit."  (1  Bouv.  130.)  File  28478-40,  J.  A.  G.,  Oct.  24,  1916. 

"All  fours" — "A  metaphorical  expression  signifying  that  a  case  agrees  in  all  its  circum- 
stances with  another."  (1  Bouv.,  133.)  C.  M.  O.  34.  1913.  8;  File  26260-1392,  p.  2. 

Allegation— "The  assertion,  declaration,  or  statement  of  a  party  of  what  he  can  prove." 
(1  Bouv.,  133.) 

"All  hands  abandon  ship."    C.  M.  O.  22, 1883,  4. 

"All-hands  evolution  of  coaling."    C.  M.  O.  15,  1909. 

"American  bluejacket."    C.  M.  0. 14, 1910, 13;  7, 1911,  6,  9. 

A  micus  curix—''A.  friend  of  the  court. "  (Index,  1915, 4.)  "  One  who,  for  the  assistance  of 
the  court,  gives  information  of  some  matter  of  law  in  regard  to  which  the  court  is 
doubtful  or  mistaken;  such  as  a  case  not  reported,"  etc.  (1  Bouv.,  138.)  See  FILI- 
PINOS, 3. 

"Ancient  title  of  admiral."    13  J.  A.  G.,  394;  TITLES,  1. 

"  And  for  other  purposes  of  naval  administration."    See  OATHS,  16,  30,  38,  39,  48. 

Anesthetic.    C.  M.  O.  10, 1915,  8. 

Animadversion — "The  utterance  of  criticism  or  censure;  a  censorious  comment  or 
reflection."  (Stan.  Diet.)  CRITICISM  OF  COURTS-MARTIAL,  19,  20,  35. 

Animadverts — "To  pass  criticism  or  censure;  make  censorious  remarks."  (Stan.  Diet.) 
File  3558-04,  1. 

Animus— "The  intention  with  which  an  act  is  done."    (1  Bouv.,  142). 

Animus furandi — "The  intention  to  steal."    (1  Bouv.,  143.) 

Animus  non  revertendi — "The  intention  of  not  returning."  (C.  M.  O.  31,  1915,  15.)  See 
DESERTION,  24, 39;  SERVICE  RECORDS,  16;  C.  M.  O.  49, 1910, 8, 15;  21, 1910,  5;  31, 1915, 15. 

"A  nimus  peculiar  to  desertion."    C.  M.  O.  65, 1895,  2;  66,1895,2;   12,1896,2. 

Animus  revertendi — " The  intention  of  returning."    (1  Bouv.,  143.) 

"Annoyance  and  chagrin."    C.  M.  O.  4,  1911,  2. 

Ante— "Before,  in  time,  order  or  position."  (Stan.  Diet.)  C.  M.  O.  26,  1911,  5,  6;  File 
6769-21,  p.  26;  14818-4,  J.  A.  G.,  Aug.  16,  1909,  p.  14;  13  J.  A.  G.,  136;  DYING  DECLA- 
RATIONS, 1. 

Anti-enlistment  societies.    File  15183-65.  Sec.  Navy,  Apr.  10, 1916. 

"Any  other  officer  in  either  department" — As  used  in  R.  S.,  179.  See  JUDGE  ADVOCATE 
GENERAL,  4. 

Appelate  jurisdiction — "The  jurisdiction  which  a  superior  court  has  to  rehear  causes 
which  have  been  tried  in  inferior  courts."  (1  Bouv.  151.) 

Armistice.    See  WAR,  1-5. 

Arrest.    See  ARREST. 

Ash-pan  doors.    C.  M.  O.  37, 1915,  4. 

Asportation — "A  carrying  away;  felonious  removal  of  goods."    See  THEFT,  17. 

Assault — An  apparent  unlawful  offer  to  do  violence  to  another  within  reach  of  the  means 
employed.  See  ASSAULT,  7-9. 

"  Assembly  of  a  judicial  character."    See  JURISDICTION,  53. 

"Attaching  no  criminality."    C.  M.  0. 10, 1911,  5. 

"Atone  for  his  misconduct."    C.  M.  O.  25, 1910,  2. 

"Atone  for  the  disgrace."    C.  M.  O.  56, 1910. 

Attorney.    C.  M.  0.  21, 1910,  13;  51,  1914,  8. 

Attorney-at-law — "  An  officer  in  a  court  of  justice  who  is  employed  by  a  party  in  a  cause 
to  manage  the  same  for  him."  (1  Bouv.,  192.) 


Autresfoits  acquit— A.  former  acquittal.  (File  26504-285,  J.  A.  G.,  July  15,  1916.) 
Autresfoits  convict— A  former  conviction.  (File  26504-285,  J.  A.  G.,  July  15,  1916.) 
Axiom — A  self-evident  or  necessary  truth. 
"Axiomatic."  See  DRUNKENNESS,  84. 

50756"— 17 42 


656  WORDS    AND  PHRASES. 

"  Bald  conclusion  of  law."    C.  M.  O.  4, 1914.  7. 

"Banter  or  joke."    C.  M.  O.  5, 1912,  12. 

Bar— "Man  at  bar."    C.  M.  O.  28,  1910.  8. 

"Barbecue."    C.  M  O.  16, 1911,  2. 

Bawdyhouse — "A  house  of  ill-fame,  kept  for  the  resort  and  unlawful  commerce  of  lewd 

people  of  both  sexes."    (1  Bouy.,  225.) 
"Beach  comber" — "An  idle  or  vicious  vagrant  about  wharves  and  beaches  at  seaports." 

(Stan.  Diet.)    See  G.  0. 152,  Mar.  29, 1870. 
"Beachmaster."    C.  M.  O.  10, 1908.  2. 
"Beat  it."    C.  M.  O.  28. 1908.  2. 
"Beat  with  his  fist."    C.  M.  O.  53, 1910, 1. 
Bench  warrant — "An  order  issued  by  or  from  a  bench,  for  the  attachment  or  arrest  of  a 

person:    It  may  issue  either  in  case  of  a  contempt,  or  where  an  indictment  has  been 

found."    (1  Bouv.,  228.)    C.  M.  O.  35,  1915,  8;  File  26524-206,  Sec.  Navy,  Nov.  19, 

1915;  Sec.  Navy  26524-74:2,  Sec.  Navy,  July  27,  1915. 
"Best  evidence" — "Best  evidence"  means  the  best  evidence  of  which  the  nature  of  the 

case  admits."    (1  Bouv.,  230.) 
By  the  best  evidence  is  meant  not  necessarily  the  greatest  quantity  of  evidence, 

but  the  most  authoritative  and  legally  satisfactory  evidence  of  which  the  case  is 

capable.    Whenever  it  appears  that  there  is  a  higher  and  better  grade  of  evidence 

than  that  which  is  introduced,  the  latter  isnot  admissible.    (FOEMS  OF  PROCEDURE, 

1910,  p.  138.) 
Bill  of  exceptions — "A  written  statement  of  objections  to  the  decision  of  a  court  upon  a 

point  of  law,  made  by  a  party  to  the  cause,  and  properly  certified  by  the  judge  or 

court  who  made  the  decision."    (1  Bouv.,  236.)    See  BILLS  OP  EXCEPTIONS. 
Binnacle  list.    Q.  0. 140,  Sept.  17, 1869. 
Blackmail.    File  26251-12159;  BLACKMAIL. 
"Bluffed."    C.  M.  O.  8, 1911,  6. 
"Blunted  conscience."    C.  M.  O.  51,  1914,  4. 
Bona  fides — "  Good  faith,  honesty,  as  distinguished  from  mala  fides  (bad  faith).    (1  Bouv., 

251.) 
Bona  fide— "In  good  faith."    (1  Bouv.,  251.)    C.  M.  O.  29. 1914, 9;  27, 1915,  8;  File  26543- 

66,  p.  4;  8554-04.  p.  4. 
"Bondsmen."    C.  Mf  0. 11,  1908,  4. 
Bounty—"  An  additional  benefit  conferred  upon  or  a  compensation  paid  to  a  class  of 

person*."    (1  Bouv.,  260.)    C.  M.  O.  6,  1915,  8. 
"Boxing  matches."    C.  M.  0. 23, 1911,  6.    See  also  LINE  OP  DUTY  AND  MISCONDUCT 

CONSTRUED,  7-9;  MANSLAUGHTER,  13. 
Brawl.    C.  M.  O.  23, 1882. 
Breach  of  trust.    See  BREACH  OP  TRUST. 
Bread— "To  deprive  old  officers  of  bread."    (Brown  v.  U.  S.,  18  Ct.  Cls.,  542.)    File 

26253-114,  J.  A.  G.,  Aug.  19, 1910,  p.  16. 

"Brother  officers."    C.  M.  0. 39, 1912;  35, 1914, 4;  ADEQUATE  SENTENCES,  11. 
"  Brutal  or  cruel"  hazing.    See  HAZING;  C.  M.  0. 12, 1913, 1. 
Buggery.    See  SODOMY. 
"Bugle  calls."    C.  M.  O.  4,  1911. 
Bully.    See  BULLY;  C.  M.  0. 12, 1913, 2. 
"  Bunk."    C.  M.  O.  15.  1909: 16. 1910. 

Burden  of  proof— Shifting.  C.  M.  0. 42, 1909, 4;  49, 1910, 6;  30, 1910, 10;  BURDEN  OF  PROOF,  8. 
Bystander.    See  C.  M.  O.  23, 1911,  7;  49, 1915. 12;  BYSTANDER,  1. 
"Calisthenic  exercises."    C.  M.  O.  12,  1913,  1. 
Cape  Cruz— Casilda  Surveying  Expedition.    C.  M.  O.  13,  1911. 
"Capital  operation"— "One  involving  some  danger  to  life."    File  26253-98,  J.  A.  G., 

May  17, 1910,  p.  12. 

"Captious  doubt.      See  REASONABLE  DOUBT. 
"Carrying  concealed  weapons."    C.  M.  O.  2,  1912,  9;  7,  1912;  CARRYING  CONCEALED 

WEAPONS. 

Cashier.    See  CASHIERED. 

'• .  .uch-all"— Clause  of  the  Navy  Regulations.    See  "CATCH-ALL"  CLAUSE. 
Caterer  of  the  junior  officer's  wine  mess.    C.  M.  O.  6, 1912. 

Cwcat  emptor— " Let  a  purchaser  beware."    (6  Cyc.,  706.)    G.  C.  M.  Rec.,  30485,  p.  818. 
Cvisa — "A  cause,  occasion,  or  reason."    (6  Cyc.,  703.) 

Causa,  causans— "  The  immediate  cause."    (6  Cyc.,  703.)    See  LINE  OF  DUTY  AND  MIS- 
CONDUCT CONSTRUED,  89. 
Causa  mortis — In  contemplation  of  approaching  death. 


WORDS    AND  PHRASES.  657 

Cavil— " 
raisi 

Cebu,  P. 

Censorship.    File  27403-130:5. 

"Censurably  negligent."    C.  M.  O.  9,  1911, 1. 

Certified  checks — "A  check  which  has  been  recognized  by  the  proper  officer  as  a  valid 
appropriation  of  the  amount  of  money  therein  specified  to  the  person  therein  named, 
and  which  bears  upon  itself  the  evidence  of  such  recognition."  (1  Bouv.,  301.) 

Certiorari — "  A  common-law  writ  issued  from  a  superior  court  directed  to  one  of  inferior 
jurisdiction  commanding  the  latter  to  certify  and  return  to  the  former  the  record  in 
the  particular  case."  (6  Cyc.,  737.)  C.  M.  O.  2,  1912,  8;  File  26287-1020,  p.  6;  13 
J.A  G.,124. 

Ces  one  trust— The  beneficiary  of  a  trust.    C.  M.  O.  39,  1913,  8. 

"Challenge  to  fight  a  duel."    C.  M.  O.  5, 1912, 12. 

"Chance"— Orders  to  "take  a  chance."    C.  M.  O.  37, 1915;  ORDERS,  8. 

Civil  employee— Investigated  by  a  board  of  investigation.  File  26283-968,  Sec.  Navy, 
Dec.  16, 1915. 

Cochero.    C.  M.  O.  36, 1912,  2. 

"Code  of  ethics."    C.  M.  0. 12, 1911,  6,  7:  CODE  OF  ETHICS. 

Coersion — "Constraint;  compulsion;  force."    (1  Bouv.,  345.) 

Collusion — "An  agreement  between  two  or  more  persons  to  defraud  a  person  of  his  rights 
by  the  forms  of  law,  or  to  obtain  an  object  forbidden  by  law."  In  divorce  collusion 
is  "an  agreement  between  a  husband  and  wife  that  one  of  them  will  commit  or  appear 
to  commit  a  breach  of  matrimonial  duties  in  order  that  the  other  may  obtain  a 
remedy  at  law  as  for  a  real  injury."  (1  Bouv.,  352.) 

"Color  of  his  office."    C.  M.  O.  27, 1911, 1;  4, 1913,  42. 

"Color  of  right."    13  J.  A.  G.,  467. 

"Colors  on  the  flagstaff."    C.  M.  O.  4, 1911,  5. 

"Combination  of  action."    C.  M.  0. 10, 1911, 4. 

Comity—"  Courtesy;  a  disposition  to  accommodate."    (1  Bouv.,  354.) 

Commercia  belli — "  War  contracts;  contracts  entered  into  by  belligerent  nations  to  secure 
a  temporary  and  limited  peace;  contracts  between  nations  at  war  or  their  subjects." 
(7  Cyc.,  493.)  File  25516-47,  J.  A.  G.,  May  18,  1911,  p.  6;  see  also  WAR,  5. 

Committee — "  A  guardian  appointed  to  take  charge  of  the  person  or  estate  of  one  who  has 
been  found  to  be  non  compos  mentis."  (File  8528-406,  J.  A.  G.,  May  6,  1914.)  See 
GOVERNMENT  HOSPITAL  FOR  THE  INSANE,  2;  INSANITY,  9. 

Commitment  papers.    File  26251-11491:3,  J.  A.  G.,  June  10, 1916. 

Common  carrier.    C.  M.  O.  9,  1916,  9. 

Common  law — "English  common  law — The  term  'common  law'  has  been  used  in  differ- 
ent senses.  In  one  sense  it  signifies  that  particular  portion  of  the  municipal  law  of 
England  which  was  formerly  administered  exclusively  by  the  common-law  tribunals 
and  is  now  administered  by  them  concurrently  with,  and  as  modified  by  equitable 
doctrines;  and  in  this  sense  the  English  common  law  includes  the  lex  scripta  or  statute 
law  as  well  as  the  unwritten  law  or  lex  non  scripta.  Generally,  however,  when  we 
speak  of  the  English  common  law  we  mean  the  lex  non  scripta  or  unwritten  law  as 
defined  by  Blackstone — that  portion  of  the  law  of  England  which  is  based  not  upon 
legislative  enactment  but  upon  immemorial  usage  and  the  general  consent  of  the 
people."  (8  Cyc.,  367.) 

"American  common  law — The  common  law  in  the  United  States  consists  of  the 
common  or  unwritten  law  of  England  as  it  existed  in  1607,  when  the  colonists  from 
England  settled  in  America,  or  in  some  States  at  a  later  date,  in  so  far  as  that  law  is 
applicable  to  the  new  surroundings  and  conditions  and  has  not  been  abrogated  by 
statute;  also  in  most  States  of  such  English  statutes  enacted  before  their  immigration 
or  afterwards  and  before  the  Revolution  as  were  applicable  and  were  adopted;  and 
of  some  local  usages  originating  in  and  coming  down  from  colonial  times."  <8  Cyc., 
369.)  See  C.  M.  O.  94, 1905;  30, 1910,  7;  10,  1911,  6;  23,  1911,  7;  2,  1912,  8;  5,  1912,  7; 
7, 1914, 5;  16, 1916,  7;  WITNESSES,  52.  See  also  COMMON  LAW. 

Common-law  crime.    C.  M.  O.  23, 1911,  5. 

Common-law  indictment.    C.  M.  0. 23, 1911, 5;  8, 1913, 6. 

Common  sense — "Sound,  practical  judgment;  that  degree  of  intelligence  and  reason,  as 
exercised  upon  the  relations  of  persons  and  things  and  the  ordinary  aifairs  of  life, 
which  is  possessed  by  the  generality  of  mankind,  and  which  would  suffice  to  direct 
the  conduct  and  actions  of  the  individual  in  a  manner  to  agree  with  the  behavior  of 


658  WORDS   AND  PHRASES. 

ordinary  persons.  'Common  sense  is  an  important  element  in  the  administration  of 
justice  and  perhaps  an  indispensable  element  in  its  successful  administration.' 
(Wright  v.  State.  69  Ind.,  163, 165;  35  Am.  Rep.,  212.)"  (8  Cyc.,  393.) 

Company  fund.    C.  M.  O.  49, 1915.  4. 

Complaining  witness.    C.  M.  O.  53, 1910,  2;  54, 1910,  2. 

Complements  of  ships.    File  13352-407,  J.  A.  G.,  Mar.  16,  1912. 

Complicity.    C.  M.  O.  47. 1910,  5. 

Compounding  a  felony— ''The  gravamen  of  this  offense  consists  in  the  stifling  of  a  public 
prosecution  or  in  some  way  perverting  public  justice;  hence  the  bare  retaking  of  one's 
own  goods  which  have  been  stolon  would  not  constitute  the  offense  unless  some  favor 
be  shown  the  offender,  or  the  retaking  be  done  with  an  intent  to  in  some  way  aid 
him."  (8  Cyc.,  493.) 

" Compounding  of  an  engine."    C.  M.  O.  27,  1910.  2. 

Compulsion — "Constraint;  objective  necessary;  forcible  inducement  to  the  commission 
of  an  act."  (8  Cyc.,  542.) 

"Compulsion  or  inevitable  necessity."    C.  M.  O.  5,  1912, 11. 

Compulsory  process.    See  CONSTITUTIONAL  RIGHTS  OF  ACCUSED,  17. 

Conclusions  of  law.    See  CONCLUSIONS  OF  LAW. 

Concert — "Committed  by  the  accused  in  concert."    C.  M.  O.  10, 1911,  4. 

Concurrent  jurisdiction — "Concurrent  jurisdiction  is  that  which  is  possessed  over  the 
same  parties  or  subject  matter  at  the  same  time  by  two  or  more  separate  tribunals." 
(2  Bouv.,  57.)  See  JURISDICTION,  21. 

"Concurrent  responsibility."    C.  M.  O.  21, 1916,  4. 

"Condign  punishment."    C.  M.  O.  26, 1913. 

Conditions,  impossible — "Are  those  which  can  not  be  performed  in  the  course  of  nature." 
(1  Bouv.,  383.) 

Conditions  precedent — "  Precedent  conditions  are  those  which  are  to  be  performed  before 
*  *  *  the  obligation  commences.  *  *  *  They  are  distinguished  from  conditions 
subsequent."  (1  Bouv.,  383.)  "  A  condition  which  calls  for  the  performance  of  some 
act  or  the  happening  of  some  event  after  the  terms  of  the  contract  have  been  agreed, 
before  the  contract  shall  take  effect."  (8  Cyc.,  558.)  C.  M.  O.  27.  1898,  1;  File 
26509-158:2,  J.  A.  G.,  June  27,  1916. 

Conditions  subsequent — "  Subsequent  conditions  are  those  whose  effect  is  not  produced 
until  after  *  *  *  commencement  of  the  obligation."  (1  Bouv.,  383.)  "A  con- 
dition which  follows  the  performance  of  the  contract,  and  operates  to  defeat  and 
annul  it  upon  the  subsequent  failure  of  either  party  to  comply  with  the  conditions." 
(8  Cyc.,  558.)  File  26509-158:2.  J.  A.  G.,  June  27,  1916. 

"Conditional  sale."    C.  M.  O.  6, 1915,  9;  DESERTERS,  11. 

Condonation — "A  pardon  or  forgiveness  of  a  past  wrong,  fault,  or  deficiency  which  has 
occasioned  a  breach  of  some  duty  or  obligation."  (8  Cyc.,  559.)  C.  M.  O.  29,  1909; 
CONDONE. 

"Conning."    C.  M.  0. 19, 1910;  33, 1913,  2. 

Connivance — "An  agreement  or  consent,  indirectly  given  that  something  unlawful  shall 
be  done  by  another."  (1  Bouvv  398.)  See  File  26251-121.59,  p.  4. 

Consanguinity — "The  relation  subsisting  among  all  the  different  persons  descending 
from  thesamestock  or  common  ancestor."  (1  Bouv. ,399.)  See  DEATH  GRATUITY,  26. 

Conscience — With  reference  to  oaths  of  naval  courts-martial  members.  C.  M.  O.  25, 
1916,  4. 

Conspiracy.    C.  M.  0. 10, 1911, 5;  JOINDER,  TRIAL  IN,  19. 

Construction  of  statutes — "A  distinction  has  been  drawn  between  the  words  'interpre- 
tation' and  'construction,'  the  former  being  held  to  mean  the  reading  of  a  statute 
according  to  its  letter,  while  the  latter  is  defined  to  be  the  reading  of  a  statute  accord- 
ing to  its  spirit  and  intent,  it  being  said  that  'the  very  essence  of  construction  is  the 
extension  of  the  meaning  of  a  statute  beyond  its  letter.'  In  practice,  however,  this 
distinction  is  not  always  observed,  the  terms  frequently  being  used  interchangeably." 

Consuls— Descriptive  lists,  signed  by  the  commanding  oflicer  and  stating  the  amount  of 
the  reward  offered  for  a  deserter  shall  in  foreign  ports  be  sent  to  the  consul  of  the 
United  States.  (R-3636(2).)  File  27403-132:1.  J.  A.  G.,  Nov.  6,  1916,  p.  3. 

Continuance — "The  postponement  of  the  trial  of  a  cause."  (1  Bouv.,  422.)  See  CON- 
TINUANCES. 

Contravene — "To  come  into  conflict  with;  prevent  or  obstruct  the  operation  of;  viola- 
tion; transgression."  (Stan.  Diet.)  C.  M.  O.  31, 1911,  7. 

Contra— "Over;  against;  opposite."    (1  Bouv.,  423.)    C.  M.  O.  29, 1915,  5. 


WORDS    AND  PHRASES.  659 

Contributory  negligence.    C.  M.  O.  33, 1914, 10. 

Constitution  of  the  United  States— "  Nineteen  violations  of  the  Constitution  do  not 

justify  a  twentieth."    File  28687-4:1. 
Contumacy — "  The  refusal  or  neglect  of  a  party  accused  to  appear  or  answer  to  a  charge 

preferred  against  him  in  a  court  of  justice."    (1  Bouv.,  431.) 
"Actuul  contumacy  is  the  refusal  of  a  party  actually  before  the  cfturt  to  obey  some 

order  of  the  court."    (1  Bouv.,  431.) 

Convert.    C.  M.  O.  39. 1908;  19, 1909;  42, 1904,  4;  27, 1911;  39, 1913,  8, 12;  9, 1914,  3. 
"Conviction  as  a  matter  of  policy."    File  26251-12159,  p.  22. 
"Convivial  occasions."    C.  M.  O.  7, 1908,  2;  9, 1908,  4. 
"Convulsion."    C.  M.  O.  42,  1909,  13. 
Copy — "A  true  transcript  of  an  original  writing."    (1  Bouv.,  436.)    See  CERTIFIED 

COPIES,  1.2. 

"Copyist"— Clerk  of  general  court-martial  acting  as.    C.  M.  O.  135, 1897,  2. 
Corporal — "Bodily;  relating  to  the  body;  as,  corporal  punishment."    (1  Bouv.,  443.) 
"Corporal  injurv."    C.  M.  0. 10, 1912,  6. 
Corpus  delicti — "The  body  of  the  offense;  the  essence  of  the  crime."    (1  Bouv.,  445.) 

C.  M.  O.  26, 1910. 10;  CORPUS  DELICTI. 

Corruption  and  venality.    G.  0. 156,  May  24, 1870.    See  also  CONGRESS,  11. 
Court  of  Admiralty — A  court  having  jurisdiction  of  causes  arising  under  the  rules  of 

admiralty  law. 
Cowardice — "Pusillanimity;  fear;  misbehavior  through  fear  in  relation  to  some  duty  to 

be  performed  before  an  enemy."    (1  Bouv.,  474.) 
"Cowardice  to  fly  from  an  enemy."    C.  M.  O.  23, 1911, 11. 
"Cramps."    C.  M.  0. 12  1908,  2. 
"Creditable  records" — With  reference  to  the  pay,  etc.,  of  warrant  and  commissioned 

warrant  officers  under  act  of  August  29, 1916.    File  17789-27,  J.  A.  O.,  September  21. 

1916;  C.  M.  O.  33,  1916,  6. 
"Creditable  records" — With  reference  to  retirement  under  act  of  March  3,  1899,  section 

11.    14  J.  A.  G.,  16,  May  26,  1908. 
"Crew's  head."    C.  M.  O.  9, 1908, 1. 
Criminal  animus.    C.  M.  O.  6,  1908,  5. 
Criminal  code.    (35  Stat.,1088.)    C.  M.  O.  4, 1913,  40. 
Culpable.    See  CULPABLE. 

"Customs  and  traditions  of  the  Navy."    See  WATCH  OFFICERS.  3. 
Cyanosis — "A  diseased  condition  of  the  circulation  causing  a  livid,  bluish  color  in  the 

skin;  blue  jaundice."    (Stan.  Diet.)    G.  C.  M.  Rec.,  30485,  p.  117. 
"Damned  Navy."    C.  M.  O.  28, 1908,  3. 
"Dampers."    C.  M.  O.  37, 1915.  4. 
"Day  in  court."    See  DAY  IN  COURT. 
"Day  laborers"— Officers  are  not.    C.  M.  O.  28. 1914,  4. 
Dead  reckoning.    C.  M.  O.  24,  1911,  1;  DEAD  RECKONING;  NAVIGATION. 
Debauch—" To  corrupt  one's  manners,  to  make  lewd,  to  mar  or  spoil;  to  seduce  and 

vitiate  a  woman;    *    *    *   enticing  and  corrupting."    (1  Bouv.  511.)    See  DRUNK- 
ENNESS, 16,  76. 
Declarant— "  One  who  makes  a  declaration."    (1  Bouv.,  517.)    C.  M.  O.  26,  1911,  4; 

DYING  DECLARATIONS,  1. 
De facto — "Actually;  in  fact;  in  deed.    A  term  used  to  denote  a  thing  actually  done. 


26509-^-64:1,  J.  A.  G.,  Apr.  25, 1910,  p.  4;  FRAUDULENT  ENLISTMENT,  22;  HONORABLE 

DISCHARGE,  3. 

Degeneracy.    C.  M.  O.  24, 1914, 18. 
Dejurc — "Rightfully;  of  right;  lawfully;  by  legal  title.    Contrasted  with  de  facto  (which 

see)."    (1  Bouv.,  501.)    C.  M.  O.  217. 1902,  4;  File  26509-J^-64:1,  J.  A.  G.,  Apr.  25, 

1910,  p.  4;  File  26260-1244,  J.  A.  G.,  Apr.  14, 1911,  p.  2;  26254-1936. 
"Delirious."    C.  M.  O.  7, 1911, 15. 
Demurrer — "In  pleading,  a  declaration  that  the  party  demurring  will  go  no  further, 

because  the  other  has  not  shown  sufficient  matter  against  him."    (13  Cyc.,  784.) 
De  novo—  "Anew;  afresh."    (1  Bouv.,  502.)    C.  M.  O.  215, 1902,  2;  217, 1902,  4;  16, 1911,  3. 

File  26260-1392,  J.  A.  G.,  June  29, 1911;  3468-04,  p.  10;  13  J.  A.  G.,  324,  June  11, 1904. 
"  Defensive  sea  areas."    File  24514-39:10. 
"Dependent  relative."    See  DEATH  GRATUITY,  14,  26. 


660  WORDS   AND  PHRASES. 

Deponent—"  One  who  gives  information,  on  oath  or  affirmation,  respecting  some  facts 
known  to  him  *  *  *;  he  who  makes  a  deposition."  (1  Bouv.,  546.) 

Deposition.    See  DEPOSITIONS. 

"Depravity  of  heart."    C.  M.  O.  51, 1914,  4. 

Depredation-V'A  plundering;  a  laying  waste."    (Stan.  Diet.)    C.  M.  O.  52, 1910, 1. 

Descriptive  Book.    C.  M.  O.  141, 1897. 

"Desertion  in  the  execution  of  a  conspiracy."    C.  M.  0. 10, 1911. 5. 

Dictum — "An  opinion  expressed  by  a  court,  but  which,  not  being  necessarily  involved 
in  the  case,  lacks  the  force  of  an  adjudication."  (1  Bouv.,  567.) 

"Dilatoriness."    C.  M.  O.  3,  1912,  3. 

Dipsomania — "A  mental  disease  characterized  by  an  uncontrollable  desire  for  intoxi- 
cating drinks.  An  irresistible  impulse  to  indulge  in  intoxication,  either  by  alcohol 
or  other  drugs."  (1  Bouv.,  572.)  C.  M.  O.  24, 1914, 18. 

Discipline — "  Such  persistent  action  on  the  part  of  a  court  is  an  extremely  bad  precedent 
and  would  tend  to  undermine  the  discipline  on  the  ship."  C.  M.  O.  5, 1912,  5.  See 
also  DISCIPLINE. 

Discontinuance.    C.  M.  O.  42, 1914,  60.    See  also  NOLLE  PKOSEQUI. 

"Discouraging  and  disheartening."    C.  M.  O.  4, 1911,  3. 

"Discredit  upon  the  naval  service."    C.  M.  O.  26,  1914. 

"Disgrace  and  humiliation"  upon  the  naval  service.    C.  M.  O.  20, 1910. 

"Dissipation."    See  DRUNKENNESS,  46,  76,  77. 

"Ditty-box."    C.  M.  0. 12, 1911,  6. 

"Dockery  Act"— (July  31, 1894, 28  Stat.,  205).    See  RETIRED  OFFICERS,  38. 

"Dope"— And  narcotic  drugs.  File  13673-3882,  Sec.  Navy,  Sept.  26,  1916.  See  also 
GOUGING. 

"Double  amenability."  13  J.  A.  G.,  125. 

"Drags  the  good  name  of  the  naval  service  in  the  dust  in  the  newspapers."  C.  M.  O. 
5, 1913,  4. 

"Drug."    C.  M.  O.  42. 1909, 13. 

"Drunken  frenzy."    C.  M.  O.  37, 1912,  2. 

"Dry  Tortugas."    13  J.  A.  G.,  371. 

Dubitancy — "Uncertainty;  hesitancy;  doubt."    (Stan.  Diet.) 

Ducestecum — "You  bring  with  you."    (14  Cyc.,  1107.) 

Due  process  of  law — " '  Due  process  of  law'  in  each  particular  case  means  such  an  exertion 
of  the  powers  of  government  as  the  settled  maxims  of  the  law  permit  and  sanction, 
and  under  such  safeguards  for  the  protection  of  individual  rights  as  those  maxims 
prescribe  for  the  class  of  cases  to  which  the  one  in  question  belongs."  (8  Cyc.  1080- 
1081.)  "Law  in  its  regular  course  of  administration  throughs  courts  of  justice." 
(8  Cyc.  1080.)  See  DEBTS,  18;  DUE  PROCESS  OF  LAW;  NAVAL  EXAMINING  BOARDS,  10. 

Dueling — "The  fighting  of  two  persons,  one  against  the  other,  at  an  appointed  time  and 
place,  upon  a  precedent  quarrel.  It  differs  from  an  affray  in  this,  that  the  latter 
occurs  on  a  sudden  quarrel,  while  the  former  is  always  the  result  of  design.  (1  Bouv., 
624.) 

"  Dueling  is  the  act  of  fighting  with  deadly  weapons  between  two  persons  in  pursuance  of 
a  previous  agreement.  (14  Cyc.  1112.)  See  DUELS. 

"Dummy"  or  "Figurehead."    C.  M.  O.  23, 1913, 13. 

Duress — "  Personal  restraint,  or  fear  of  personal  injury  or  imprisonment."    (1  Bouv.,  626.) 

"Dysentery."    C.  M.  O.  24, 1914,  21. 

Ejusdem  generis.    See  EJUSDEM  GENERIS. 

"Elementary."    C.  M.  0. 9, 1911,  2. 

Embezzlement— Embezzlement  of  private  money  by  an  enlisted  man.  G.  C.  M.  Rec. 
32006. 

"Emolument."    C.  M.  O.  27, 1913,  8. 

"  Empty  honor."    File  26280-63,  p.  5 

"Emulation  of  his  juniors  and  praise  from  his  seniors."    C.  M.  O.-28, 1914,  5. 

"Enervated  by  stimulants."    C.  M.  O.  30,  1912,  3. 

Epsom  salts.    C.  M.  O.  6, 1915, 12. 

"Equipage."    File  24482-34,  J.  A.  G.,  May  1, 1911,  p.  13. 

"Equipment"— Defined.    File  24482-34,  J.  A.  G.,  May  1, 1911,  p.  10. 

"Error  of  judgment."  G.  O.  58,  June  20, 1865;  C.  M.  O.  23, 1916, 1;  13  J.  A  100,  Sept. 
22, 1903. 

Estop.    15  J.  A.  G.,  100.  See  also  ESTOPPEL. 

"  Estopped."    See  ESTOPPEL. 

Estoppel— Silence— "  Estoppel  by  silence."    File  13673-1442,  J.  A.  G.,  Nov.  22, 1911,  p.  10. 


WORDS   AND  PHRASES.  661 

Same — "In  the  broad  sense  of  the  term  'estoppel'  is  a  bar  which  precludes  a  person  from 
denying  the  truth  of  a  fact  which  has  hi  contemplation  of  law  become  settled  by  the 
acts  and  proceedings  of  judicial  or  legislative  officers,  or  by  the  act  of  the  party  him- 
self, either  by  conventional  writing  or  by  representations,  express  or  implied,  in 
paw."  (16  Cyc.,  679.) 

Et  a/.— "And  another"  or  "and  others."  (16  Cyc.,  815.)  File  3031-57,  J.  A.  G.,  June  25, 
1908,  p.  2. 

Et  cetera— "And.  others;  and  other  things."  (1  Bouv.,  696.)  C.  M.  O.  55,  1897.  2;  DE- 
SERTION, 24. 

Et  sea.— "An  abbrevation  for  Et  sequentia,  q.  v.  (16  Cyc.,  817.)  13  J.  A.  G.,  324;  WIFE,  11; 
WILLFULLY  AND  MALICIOUSLY,  2. 

Et  sequentia— "And  the  following."    (16  Cyc.,  817.) 

'Evade  the  course  of  justice."    C.  M.  O.  7,  1911, 12. 

'  Every  Saturday  after  12  o'clock  noon."    13  J.  A.  G.,  206. 

'Evasive,  intentionally  misleading  and  deceptive  replies."    C.  M.  O.  9,  1909. 

'  Evil  intent  or  moral  terpitude."    C.  M.  O.  4, 1913,  57. 
Evil  mind."    C.  M.  O.  23, 1911,  5. 

Ex  contracts— "From  contract."    (1  Bouv.,  708.) 

Ex  delicto — Actions  which  arise  in  consequence  of  a  crime,  misdemeanor  or  tort.  (1 
Bouv.,  709.) 

Ex  gr.    File  26543-66,  p.  5. 

Ex  gratia — "  Of  favor;  of  grace."    (1  Bouv.,  709.) 

Ex  mero  motu—"Qi  his  own  mere  motion."  (C.  M.  O.  19,  1915,  4.)  "Of  mere  motion. 
*  *  *  To  prevent  injustice,  the  courts  will;  ex  mero  motu,  make  rules  and  orders 
which  the  parties  would  not  strictly  be  entitled  to  ask  for."  (1  Bouv.,  709.)  A 
naval  court-martial  under  certain  conditions  may,  ex  mero  motu,  exclude  certain 
evidence.  C.  M.  0. 31, 1911,  6;  EVIDENCE,  82. 

Ex  nessitate  rei — "From  the  necessity  of  the  case."  (Stand.  Diet.)  File  26254-1936, 
J.  A.  G.,  Jan.  29, 1915,  p.  7. 

Ex  parte — "Of  the  one  part.  *  *  *  'Ex  parte'  in  the  heading  of  a  reported  case  sig- 
nifies that  the  name  following  is  that  of  the  party  upon  whose  application  the  case  is 
heard.  The  term  'ex  parte'  implies  an  examination  inj  the  presence  of  one  of  the 
parties  and  the  absence  of  the  other."  (1  Bouv.,  709.)  C.  M.  O.  47, 1910,  9;  49, 1910, 
10;  21,  1910,  13;  2, 1912,  7;  10, 1913,  6;  4, 1914,  5;  51, 1914,  2;  48, 1915,  2;  File  1009-94. 

Ex  post  facto  law — "An  ex  post  facto  law  is  one  which  imposes  a  punishment  for  an  act 
which  was  not  punishable  when  it  was  committed,  imposes  additional  punishment, 
or  changes  the  rules  of  evidence,  by  which  less  or  different  testimony  is  sufficient  to 
convict.  (8  Cyc.,  1027.) 

Ex  proprio  vigore—"Ry  its  own  force."  (1  Bouv.,  711.)  File  27231-77,  Sec.  Navy,  Sept. 
19, 1916;  27231-77:1,  J.  A.  G.,  Oct.  18,  1916. 

Ex  rel.  and  ex  relatione — "At  the  information  of;  by  the  relation."  Ex  rel.  is  an  abbrevi- 
ation. (1  Bouv.,  711.) 

Ex  vi  termini—"  From,  or  by  the  force  of  the  term."    (19  Cyc. ,  105.)    File  6769-21,  p.  38. 

"Exchange  for  cash."    C.  M.  0. 11, 1908,  2. 

Exclusive  jurisdiction — "Is  that  which  gives  to  one  tribunal  sole  power  to  try  the  cause." 
(2  Bouv.,  57.) 

Expatriation — "The  voluntary  act  of  abandoning  one's  country  and  becoming  the  citizen 
or  subject  of  another."  (1  Bouv.,  736.) 

Expressio  unius  est  exclusio  alterius— "  The  expression  of  one  thing  is  the  exclusion  of 
another."  (2Bouv.,353.)  C.M.  O., 14,1911,6;  File 3980-375:17, p.  11;  27213,  J.  A.  G., 
Apr.  24, 1909,  p.  4;  15  J.  A.  G.,  457,  Oct.  26, 1910.  See  also  STATUTORY  CONSTRUCTION 
AND  INTERPRETATION,  37. 

Extenuation — "  That  which  renders  a  crime  or  tort  less  heinous  than  it  would  be  without 
it.  It  is  opposed  to  aggravation.  In  general,  extenuating  circumstances  go  in  miti- 
gation of  punishment  in  criminal  cases."  (1  Bouv.,  742.) 

Exterritoriality — "This  term  (exterritorialite)  is  used  by  French  jurists  to  signify  the 
immunity  of  certain  persons,  who,  although  in  the  state  are  not  amenable  to  its  laws; 
foreign  sovereigns,  ambassadors,  ministers  plenipotentiary,  and  ministers  from  a 
foreign  power,  are  of  this  class."  (1  Bouv.,  743.) 

"Exterritoriality,  in  this  as  in  every  other  case,  is  a  fiction  only,  for  diplomatic 
envoys  are  in  reality  not  without,  but  within,  the  territories  of  the  receiving  States." 
It  is  nevertheless  a  valuable  term,  "because  it  demonstrates  clearly  the  fact  that 
envoys  must  in  most  points  be  treated  as  though  they  were  not  within  the  territory 
of  the  receiving  States."  ( 1  Oppenheim,  pp.  460-461.) 


662  WORDS    AND  PHRASES. 

The  position  of  men-of-war  in  foreign  waters  is  characterized  by  the  fact  that  they 
are  called  '  floating'  portions  of  the  flag  State.  For  at  the  present  time  a  customary 
rule  of  International  Law  is  universally  recognized  that  the  owner  State  of  the  waters 
into  which  foreign  men-of-war  enter  must  treat  them  in  every  point  as  though  they 
were  floating  portions  of  their  flag  State."  (1  Oppenheim,  pp.  606-507.) 

"  The  extraterritorial  character  of  a  naval  vessel  of  one  nation  in  the  ports  or  waters 
of  another  is  universally  recognized  and  acknowledged,  and,  therefore,  a  crime  com- 
mitted on  board  of  such  vessel  falls  under  the  jurisdiction  of  the  vessel's  country." 
File  27403-132:1,  J.  A.  G.,  Nov.  6,  1916,  p.  6.  File  3973-136:2  J.  A.  G.,  Feb  26,  1916. 
Extradition — "The  surrender  by  one  sovereign  State  to  another,  on  its  demand,  of 
persons  charged  with  the  commission  of  crime  within  its  jurisdiction,  that  they  may 
be  dealt  with  according  to  its  laws."  (1  Bouv.,  744.) 

"  Extradition  is  the  delivery  of  a  prosecuted  individual  to  the  State  on  whose  terri- 
tory he  has  committed  a  crime  by  tne  State  on  whose  territory  the  criminal  is  for  the 
time  staying."  (1  Oppenheim,  p.  403,  par.  327.) 

"  By  extradition  is  meant  the  delivery,  to  accredited  authorities,  of  criminal  fugi- 
tives or  persons  accused  of  crime  committed  in  one  country,  upon  the  request  of  the 
government  of  the  country  in  which  the  crime  was  committed,  by  the  government 
of  the  country  in  which  they  have  sought  refuge."  (Stockton,  p.  189.) 

Extrajudicial— "  That  which  does  not  belong  to  the  judge  or  his  jurisdiction,  notwith- 
standing which  he  takes  cognizance  of  it.  Extrajudicial  judgments  and  acts  are 
absolutely  void."  (1  Bouv.,  747.) 

Extrajudicial  declarations.    C.  M.  O.  26,  1911,  5. 

Extrajudicial  statements.    See  DYING  DECLARATIONS,  1  (p.  202,  line  13). 

Extremis — "  When  a  person  is  sick  beyond  the  hope  of  recovery  and  near  death  he  is 
said  to  be  in  extremis."  (1  Bouv.,  747.)  C.  M.  O.  26, 1911,  3,  4. 

Eyewitness — "  One  who  saw  the  act  or  fact  to  which  he  testifies.  When  an  eyewitness 
testifies,  and  is  a  man  of  intelligence  and  integrity  much  reliance  must  be  placed  on 
his  testimony;  for  he  has  the  means  of  making  known  the  truth."  (1  Bouv.,  747.) 
C.  M.  0. 12,  1911,  7;  42, 1915,  8;  48, 1915;  26,  1911,  4;  24,  1914,  20;  42,  1915,  8. 

Facsimile.    16  J.  A.  G.,  165. 

"  Fails  "—Defined  with  reference  to  refusal  to  pay  debts.  File  26262-1626,  J.  A.  G.,  Dec. 
28,  1912. 

"Fair  trial."    See  EVIDENCE,  13;  TRIALS,  10;  13  J.  A.  G.,  323,  June  11,  1904. 

Falsus  in  uno,  falsus  in  omnibus — "  False  in  one  thing,  false  in  everything."  See  WIT- 
NESSES, 52. 

"Familiar  truths."    C.  M.  0. 1, 1882,  3. 

Fauces  terrx — "  Jaws  of  the  land. "  "  Projecting  headlands  or  promontories,  including  arms 
of  the  sea.  Such  arms  of  the  sea  are  said  to  be  inclosed  within  the  fauces  terrse,  in  con- 
tradistinction to  the  open  sea."  (1  Bouv.  763.)  14  J.  A.  G.  190,  Aug.  4,  1909. 

Favoritism.    See  CRITICISM  OF  COURTS-MARTIAL,  35;  G.  O.  224,  March  23, 1877. 

"  Febiger  Board."    See  PRECEDENCE,  12. 

"  Feigning."    C.  M.  O.  117, 1902,  9. 

"  Feint."    C.  M.  O.  8, 1911,  6. 

Fiduciary—"  As  a  noun,  a  person  holding  the  character  of  a  trustee.  As  an  adjective, 
the  nature  of  a  trust;  having  the  characteristics  of  a  trust;  analogous  to  a  trust;  relating 
to  or  founded  upon  a  trust;  a  confidence."  (19  Cyc.  526). 

"Fiduciary  responsibilities."    C.  M.  O.  48, 1904,  1. 

"  Fi?ld  and  track  meet."    C.  M.  0. 16, 1911. 

"  Field  duties" — The  main  part  of  a  marine  officers'  duties  are  in  the  field,  or  "field  duties." 
File  28687-14,  Sec.  Navy,  Jan.,  1917. 

"Figurehead  or  dummy."    C.  M.  O.  23,  1913, 13. 

Fingerprints.  C.  M.  O.  37,  1909,  5;  G.  C.  M.  Rec.,  28488,  pp.  6-16;  29305;  FINGER 
PRINTS. 

"  Firing-pin  lock  at  'safe. ' "    C.  M.  O.  33, 1914, 11. 

"  First  blush."    C.  M.  0. 37, 1915.  7:  ORDERS,  39. 

"Flimsy  technicalities."    C.  M.  0. 16, 1911,  3. 

"  Forcibly  "—Defined  and  discussed.    G.  C.  M.  Rec.  21315. 

"  Foretop."    C.  M.  O.  37, 1912. 

Found  property.    C.  M.  O.  42, 1909,  4. 

"  Frame  up."    File  26251-10496. 

"Freedom  of  speech."    File  26251-12159,  pp.  11,  17;  OFFICERS,  89. 

"Freeze."    C.  M.  O.  41,  1915,  6. 

"  Frivolous"  objections  of  judge  advocate.    C.  M.  O.17, 1910, 11. 


WORDS    AND   PHRASES.  663 

"F the  United  States  Navy."    See  SEDITION,  1. 

"Fugitive  from  justice  "—"One  who,  having  committed  a  crime,  flees  from  the  juris- 
diction within  which  it  was  committed,  to  escape  justice."  (1  Bouv.,  857.) 

"Funds."    C.  M  O.  4, 1913,  39. 

Gauge  glasses.    C.  M.  O.  37, 1915,  4. 

General  issue — "A  plea  which  denies  or  traverses  at  once  the  whole  indictment  or  declara- 
tion, without  offering  any  special  matter  to  evade  it."  (1  Bouv.,  877.) 

General  mess.    C.  M.  O.  23, 1913.  3. 

Generalia  specialibus  non  derogant—"  Things  general  do  not  derogate  from  things  special." 
(2  Bouv.,  354.)  See  STATUTORY  CONSTRUCTION  AND  INTERPRETATION,  108. 

"  Getting  underway."    C.  M.  O.  9, 1913. 

Gist— "The  essential  ground  or  object  of  the  action  in  point  of  law,  without  which  there 
would  be  no  cause  of  action."  (1  Bouv.,  884.)  C.  M.  O.  12,  1911,  4. 

"Gist  of  the  offense."    C.  M.  O.  14, 1910, 11;  10,  1911,  4;  10,  1912,  4;  17,  1916,  5,  7. 

"  Good  name  of  naval  service."    C.  M.  O.  7, 1912,  3;  5, 1913,  4. 

Gouging — "The  offense  in  both  instances  was  substantially  what  is  termed  'gouging.'" 
13  J.  A.  G.,  458.  See  also  BLOTTER;  CHEATING;  GOUGING;  MIDSHIPMEN,  22;  OFFICERS, 
13. 

Graft.    See  GRAFT. 

Grand  jury.    See  GRAND  JURY. 

Gravamen — The  grievance  complained  of;  the  substantial  cause  of  the  action.  The  part 
of  a  charge  which  weighs  most  heavily  against  the  accused.  (1  Bouv.,  902.)  C.  M. 
0. 17, 1910,  4;  21, 1910,  8;  23, 1910, 12;  7,  1912,  2;  8, 1912,  3;  20, 1912,  4;  4, 1914,  7;  33,  1914, 
10;  17,  1916,  5. 

"Gross  or  culpable  negligence."    C.  M.  O.  33,  1914,  10. 

Guarantee— "Written  guarantee."    16  J.  A.  G.,  19,  May  22,  1908. 

Guaranty— In  writing.    C.  M.  O.  41,  1915,  6. 

Guardian  ad  litem—"A  guardian  appointed  to  represent  the  ward  in  legal  proceedings 
to  which  he  is  a  party  defendant."  (1  Bouv.,  914.)  File  26251-6020,  Sec.  Navy, 
July  7,  1913. 

"Guilty  knowledge."    C.  M.  O.  129,  1898,  6;  File  26516-49,  p.  5. 

•  Habeas  corpus — "That  you  have  the  body."  "A  writ  directed  to  the  person  detaining 
another  and  commanding  him  to  produce  the  body  of  the  prisoner  at  a  certain  time 
and  place,  with  the  day  and  cause  of  his  caption  and  detention,  to  do,  submit  to,  and 
receive  whatsoever  the  court  or  judge  awarding  the  writ  shall  consider  in  that  behalf." 
(1  Bouv.,  917.)  C.  M.  O.  23, 1910, 11;  2, 1912, 5, 8;  51, 1914,  2;  G.  0. 121;  File  26504-102, 
J.  A.  G.,  Mar.  1,  1910,  p.  1. 

"Hammock  of  an  enlisted  man."    C.  M.  O.  3,  1909. 

"  Haphazard  method  of  piloting."    C.  M.  O.  9,  1911,  2. 

"Hauling  fires."    C.  M.  O.  37,  1915. 

Head— "Crew's  head."    C.  M.  O.  9, 1908, 1. 

"Heat  of  passion."    C.  M.  O.  12,  1911,  6;  23,  1911,  4. 

"Higher  evidence."    C.  M.  O.  47,  1910,  7;  49,  1910,  10. 

"His  Britannic  Majesty's  Navy."    C.  M.  O.  14,  1910.    See  also  SEDITION,  1. 

"Hold-on"  orders.    C.  M.  O.  37,  1915,  9. 

"  Honor  of  his  country."    See  WATCH  OFFICERS,  2. 

"Horse  stealing."    C.  M.  O.  2,  1912,  8. 

"Horseplay."    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 

"  Hour  of  sailing."    C.  M.  O.  51, 1910,  2. 

"Housebreaking."    See  WITNESSES,  52. 

Humanitarianism.    C.  M.  O.  16,  1916,  10. 

"Hunger  strike"— By  a  naval  prisoner.    File  26251-314:1,  Sec.  Navy,  Oct.  9,  1916. 

Hypothecation — The  act  of  pledging  personal  property  as  collateral  security.  A  lien 
given  by  contract  by  a  debtor  to  his  creditor  on  movable  property  as  security  for  a 
debt,  but  without  passing  possession  of  the  property  hypothecated.  C.  M.  O.  49, 

1910,  o. 

Hypothesis.   C.  M.  O.  5, 1913,  2;  DRUNKENNESS,  73;  REASONABLE  DOUBT,  1. 

f.  e. — An  abbreviation  of  id  e.st,  which  means  "that,  is  "    1  Bouv.,  973.) 

Ib.— "The  same."    Abbrevation  for  ibidem  or  idem.    (1  Bouv.,  28,  973.)    C.  M.  O.  23. 

1911,  5,  7,  8,  10;  5,  1912,  11;  10,  1912,  6;  File  9736-18,  J.  A.  G.,  June  25,  1910,  p.  6;  16  J. 
A.  G.,  88. 

Ibid— "The  same."    C.  M.  O.  10,  1911,  5;  2,  1912,  7;  File  26287-1020,  p.  5. 

Ibidem — "The  same.    The  same  book  or  place.    The  same  subject."    (1  Bouv.,  973.) 


664  WORDS   AND  PHRASES. 

Id.— "The  same."    Abbreviation  for  ibidem  or  idem.    (1  Bouv.,  28,  973.)    C.  M.  O.  5, 

1912,  13;  34,  1913,  7;  File  26253-98,  J.  A.  G.,  May  17,  1910,  p.  12;  26260-1392,  p.  32;  16, 

J.  A.  G.,  112. 

Id  eat—"  That  is.    Commonly  abbreviated  i.  e."    (1  Bouv.,  973.) 
Idem.— "The  same."    (1  Bouv.,  28,  973.)    C.  M.  O.  132,  1901. 
Idiosyncrasy.    C.  M.  O.  10, 1915,  8. 
"Ignorance  of  law."    C.  M.  O.  10,  1911,  7;  COURT,  87;  DESERTION,  110;  FRAUDULENT 

ENLISTMENT,  23;  IGNORANCE  OF  LAW. 

lanorantia  juris  non  excusat — "Ignorance  of  the  law  is  no  excuse."    (2  Bouv.,  355.) 
'Imaginary  or  abstract  questions."    C.  M.  O.  5,  1913,  8. 
'Impeachment  of  a  mayor."    File  20392-612,  J.  A.  G.,  Aug.  30,  1916. 
'Impotent  conclusion."    C.  M.  O.  3,  1884.    See  also  CRITICISM  OF  COURTS-MARTIAL,  21. 
'Impracticability  of  reconvening  the  court."    C.  M.  O.  12, 1911,  8. 
'In  charge"  and  "In  command."    File  5254-03,  J.  A.  G.,  June  20, 1903. 
In  extenso—"  Fully;  at  length."    File  22724-16:1,  J.  A.  G.,  Apr.  24,  1911,  p.  3. 
In  extremis— "In  extremity;  in  the  last  extremity;  in  the  last  illness."    (22  Cyc.,  500.) 

C.  M.  O.  26,  1911,  3,  4. 

Infuturo—"At  a  future  time."    (1  Bouv.,  1000.) 
In  pats — "In  the  country  as  distinguished  from  in  court;  out  of  court  or  without  judicial 

process;  by  deed  or  not  of  record."    (22  Cyc.,  1098.)    See  WORDS  AND  PHRASES 

(ESTOPPEL). 
In  pari  delicti— "In  equal  fault;  equal  in  guilt."    (1  Bouv.,  1002.)     16  J.  A.  G.,  73;   File 

26251-5447,  J.  A.  G.,  Sec.  8,  1911,  p.  4. 
In  pari  materia — "  Upon  the  same  matter  or  subject.    Statutes  in  pari  materia  are  to  be 

construed  together.    (1  Bouv.,  1003.)    Where  the  subject  of  a  prior  act  is  identical 

with  and  not  merely  similar  to  the  law  under  consideration,  the  two  acts  are  said 

to  be  in  pari  materia  and  should  be  construed  together  unless  the  language  of  the 

act  to  be  construed  is  plain  and  free  from  all  uncertainty.    (Barnes  v.  Phila.,  etc., 

K.  Co.,  17  Wall.,  302.)    File  26251-5447,  J.  A.  G.,  Dec.  8, 1911,  p.  4;  16  J.  A.  G.,  72,73, 112; 

File  26254-50,  p.  2. 
In  re— "In  the  matter;  as,  in  re  A.  B.,  in  the  matter  of  A.  B.    In  the  heading  of  legal 

reports  these  words  are  used  more  especially  to  designate  proceedings  in  bankruptcy 

or  insolvency,  or  the  winding  up  of  estates  or  companies."    See  C.  M.  O.  2, 1912,  7,  8,  9; 

5,  1912,  8;  10,  1912,  9. 
In  toto — "In  the  whole;  wholly;  completely;  as,  the  award  is  void  in  toto."    (1  Bouv., 

1004.)    C.  M.  O.  14,  1913,  4:  37,  1915. 
"Inclining  experiment."    C.  M.  O.  32, 1909. 
"Inconceivable  stupidity."    C.  M.  O.  10,  1908,  4. 

"  Indefiniteness  and  insufficiency"  of  evidence.    C.  M.  O.  212,  1902, 1;  28,  1904,  3. 
Indictment.    C.  M.  0. 10,  1911,  4;  23, 1911,  5;  13,  1916,  5. 
Inebriety     C.  M.  0. 12, 1915,  9. 
"Inevitable  accident."    See  COLLISION,  12. 
"Inevitable  necessity."    C.  M.  O.  5, 1912, 11. 

"Informal  contract."    File  26251-12159,  Sec.  Navy,  Oct.  7, 1916,  p.  1. 
Infra— "  Bslow,  under,  beneath,  underneath."    (Index,  1915,  27.)    File  3468-04,  p.  2; 

24482-34,  J.  A.  G.,  May  1, 1911,  p.  20;  File 3468-04,  p.  2. 
"Ingenius  analysis."    File  8171-03. 
"Ingenius attorneys."    C.  M.  O.  22, 1916,  7. 

"Ingredient  of  the  offense."    C.  M.  0. 10, 1911,  5;  19,  .1912,  7;  25, 1914,  4. 
"Initial  point  of  departure."    C.  M.  O.  29, 1909,  2. 
"Insulting language."    C.  M.  O.  7, 1911,  6;  23, 1911,  6. 
Inter  ato— "  Amon?  other  things"  (C.  M.  O.  19,  1915,  2).    C.  M.  O.  12,  1897,  2;  86,  1897; 

153,  1897,  3;  29,  1902;  49,  1910,  11;  21,  1910,  7;  12,  1911,  3,  4;  16,  1913,  4;  22,  1913,  6; 

34, 1913,  8;  4,  1914,  9;  7,  1914,  9;  19,  1915,  2;  31,  1915,  14;  49,  1915,  17;  9,  1916,  5;  File 

26501-102,  J.  A.  G.,  Mar.  1, 1910,  p.  1;  262GO-1392,  p.  37. 

Intercranial  hemorrhage.    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  9. 
Interim—"  In  the  meantime;  meanwhile."    (1  Bouv.,  1095.) 
Interlocutory — "  Something  which  is  done  between  the  commencement  and  the  end  of 

*    *    *    action  which  aecides  some  point  or  matter,  which,  however,  is  not  a  final 

decision  of  the  matter  in  issue."    (1  Bouv.,  1096.) 
Internment.    File  27715-82,  J.  A.  G.,  Feb.  14,  1916. 
Interpretation— "The  discovery  and  representation  of  the  true  meaning  of  any  signs 

used  to  convey  ideas."    (1  Bouv.,  1105.) 
Interpretation  of  statutes.    See  WORDS  AND  PHRASES  (Construction  of  statutes). 


WORDS   AND   PHRASES.  665 

Intro,  vires — "An  act  is  said  to  be  intra  vires  (within  the  power)  of  a  person  or  corporation 

when  it  is  within  the  scope  of  his  or  its  powers  or  authority.    It  is  the  opposite  of 

ultra  vires."    (1  Bouv.,  1118.) 
"Invited  guests."    C.  M.  O.  2, 1911;  6, 1914. 
Ipso  facto— "  By  the  fact  itself;  by  the  very  act  itself;  by  the  mere  fact."    (23  Cyc.,  353.) 

C.  M.  O.  1,  1913,  6;  8,  1913,  4;   File  26252-62,  p.  3;  3980-629,  p.  2. 
Ipso  jure— "By  the  operation  of  law.    By  mere  law."    (1  Bouv.,  1120.)    File  26280-61, 

p.  5;  26521-148,  J.  A.  G.,  Aug.  29,  1916,  p.  5;  C.  M.  0. 1, 1913,  6. 
"Ironclad."    G.  0. 58,  June  20, 1865. 
"Irreconcilable  chaos."    C.  M.  O.  29, 1915,  8. 

Ita  lex  scripta  est—"  The  law  is  so  written."    File  3980-575:17,  p.  13. 
Jacob's  ladders.    C.  M.  O.  29, 1890,  3. 
"Judicial approval."    C.  M.  O.  23, 1911,  5. 
Judicial  confession.    File  26251-12159,  p.  11. 
Judicial  notice — "  A  term  used  to  express  the  doctrine  of  the  acceptance  by  a  court  for  the 

purposes  of  the  case  of  the  truth  of  certain  notorious  facts  without  requiring  proof." 

(2  Bouv.,  39.)    See  JUDICIAL  NOTICE. 
"Judicial  oath."    C.  M.  0. 14,  1911,  5. 

"Judicial  question."    C.  M.  O.  31,  1915, 16;  "JUDICIAL  QUESTION." 
"Junior  officers'  wine  mess."    C.  M.  O.  6,  1912;   File  26260-1392,  p.  14. 
Junks,  Chinese.    C.  M.  O.  4,  1914. 
"Junk  dealers."    C.  M.  O.  34,  1909;  35,  1909. 
" Keep-going"  orders.    C.  M.  0. 37, 1915, 8. 
"Kick."    C.  M.  O.  41, 1915,  9. 

"  Kicked  and  abused  "  a  seaman.    See  SCREENING  AN  OFFENDER. 
Kleptomania — Insanity  in  the  form  of  an  irresistible  propensity  to  steal.    A  form  of 

insanity  which  is  said  to  manifest  itself  by  a  propensity  to  acts  of  theft.    (2  Bouv.,  93.) 
Kleptomaniac.    File  26251-9280:40,  p.  3. 
Knowingly.    C.  M.  0. 12,  1911,  5;  17,  1916,  8. 
"Landing  force."    C.  M.  O.  33, 1908,  1. 
"Landing  party."    C.  M.  O.  3,  1916,  8. 
Larceny — "  Larceny  is  the  taking  and  carrying  away  of  the  mere  personal  goods  of  another 

with  intent  to  steal  the  goods."    (25  Cyc.,  10.) 
"In  some  jurisdictions  offenses  usually  styled  as  larcenies  are  denominated  in  the 

statutory  definitions  as  thefts  or  as  stealings."    (25  Cyc.,  12.)    C.  M.  O.  42,  1909,  10; 

8, 1911,  5;  THEFT;  LARCENY;  WITNESSES,  52. 
Lasciviousness— Lascivious  desires  or  conduct;  lustfulness;  wantonness;  lewdness.    That 

form  of  immorality  which  has  reference  to  sexual  impurity.    Lasciviousness  and 

lewdness  are  generally  treated  as  interchangeable  if  not  synonymous  terms.    (2  Bouv., 

137.) 

Law — "The  law  is  not  a  metaphysical  or  theoretical  science."    C.  M.  O.  24, 1914, 11. 
"Law  forces  no  one  to  do  vain  or  useless  things."  File  13673-1442,  J.  A.  G.,  Nov.22, 1911, 

p.  17. 
"Law  does  nothing  and  commands  nothing  in  vain."    File  13673-1442,  J.  A.  G.,  Nov. 

22,  1911,  p.  17. 

"Laxness  of  discipline."    C.  M.  O.  4, 1911,  2, 5. 
"Layman."    C.  M.  O.  35,  1914,  5. 
"Lead  droppings."    C.  M.  O.  41,  1915,  4. 
"Legal  conclusion."    C.  M.  O.  31, 1915,  8. 
"Legal  excuse."    C.  M.  O.  5,  1912, 12,  13. 
"Legal  involvement."    C.  M.  O.  7, 1911, 15. 
"Legally  accurate."    C.  M.  0. 10, 1911,  5. 
"Letters  of  reproof" — "Forwarded  through  the  usual  military  channels  and  placed  upon 

their  respective  records  would  not  be  made  public."    File  10094-03,  J.  A.  G.,  Dec. 

12,  1903,  p.  1. 

Lex  foci— "The  law  of  the  place."    (2  Bouv.,  199.) 
Lex  neminem  cogit  ad  vana  seu  inutilia  peragenda — The  law  forces  no  one  to  do  vain  or 

useless  things.    (2  Bouv.,  361.)    File  13673-1442,  J.  A.  G.,  Nov.  22,  1911,  p.  17. 
Lex  nil  facit  frustra,  nil  jubet  frustra — The  law  does  nothing  and  commands  nothing  in 

vain.    (2  Bouv.,  361.)    File  13673-1442,  J.  A.  G.,  Nov.  22,  1911,  p.  17. 
Lex  non  scripta — "The  unwritten  or  common  law,  which  included  general  and  particular 

customs,  and  particular  local  laws."    (2  Bouv.,  204.)    See  WORDS  AND  PHRASES 

(Common  Law). 

Lex  scripta—"  Statute  law."    See  WORDS  AND  PHRASES  (Common  Law). 
Ley  defuga,—"  The  law  of  flight."    (Ct.  Inq.  Rec. ,  6029. ) 


666  WORDS   AND    PHRASES. 

Limited  jurisdiction— "Limited  jurisdiction  (called,  also,  special  and  inferior)  is  that 

which  extends  only  to  certain  specified  causes."    (2  Bouv.,  57.) 
Line  of  demarcation.    14  J.  A.  G.  111J. 

Locus  criminis — "The  locality  or  place  of  a  crime."    (2  Bouv.,  274.) 
Locus  penitentiae — "A  place  of  repentance."    The  opportunity  of  withdrawing  from  a 
projected  contract  before  the  parties  are  finally  bound;  or  of  abandoning  the  intention 
of  committing  a  crime  before  it  has  been  completed.    (2  Bouv.,  274.)    File  26251- 
2833,  J.  A.  G.,  Mar.  31, 1910,  p.  2;  COMMISSIONS,  43. 

"Lover's  Lane"— Naval  Academy.    File  10316-04,  J.  A.  G.,  Jan.  12,  1905,  p.  1. 
"Low-pressure  piston."    C.  M.  O.  27,  1910. 
"  Lucky  bag."    C.  M.  0. 16, 1916,  8;  WITNESSES,  52. 
Luffed.    C.  M.  O.  43,  1883,  3. 
"Magnetic."    C.  M.  O.  30, 1909. 
"Mam  feed  tank."    C.  M.  O.  34, 1908, 1. 
"Major  operation" — "An  important  and  serious  operation  (Gould)."    File  26253-98. 

J.  A.  G..  May  17,  1910,  p.  12. 
"Make  good"— Time  lost  on  account  of  sickness  or  disease,  etc.    File  7657-394:1,  Sec. 

Navy,  Sept.  20,  1916. 
M ala  fides— "  Bad  faith.    It  is  opposed  to  bona  fides,  good  faith."    (1  Bouv.,  251;  2  Bouv., 

294.) 

Mala  in  se — "Acts  morally  wrong;  offenses  against  conscience."    (2  Bouv.,  294.) 
Mala  proMbita — "Those  things  which  are  prohibited  by  law,  and  therefore  unlawful." 

(2  Bouv.,  294.)    C.  M.  O.  4, 1913,  8,  21,  44;  33, 1914,  9;  EMBEZZLEMENT,  15. 
"Malevolent  and  vindictive  spirit"— Charges  made  because  of.    G.  O.  52,  Apr.  15,  1865. 
"Malice aforethought."    C.  M.  0. 12, 1911,  7;  23, 1911,  5. 
"Malignant  spirit,  a  malignant  intention  to  produce  a  particular  evil."    C.  M.  O.  10, 

1912,  7. 

Malum  In  se — "Evil  in  itself.  A  crime  by  reason  of  its  inherent  nature.  *  *  *  An 
offense  malum  in  se  is  one  which  is  naturally  evil,  as  murder,  theft,  and  the  like; 
offenses  at  common  law  are  generally  mala  in  se.  An  offense  malum  prohibitum,  on 
the  contrary,  is  not  naturally  an  evil,  but  becomes  so  in  consequence  of  its  being  for- 
bidden, as  playing  at  games  which,  being  innocent  before,  have  broome  unlawful 
in  consequence  of  being  forbidden."  (2  Bouv.,  299.)  C.  M.  O.  21,  1910,  9;  23,  1911,  7; 
33,  1914,  9;  16  J.  A.  G.,  155. 
Malum  prohibitum.  See  WORDS  AND  PHRASES  ( Mala  proMbita  and  Malum  in  sc). 

C.  MT  O.  21,  1910,  9;  23,  1911,  7;  33,  1914,  9;  16  J.  A.  G.,  155. 

Mandamus — "  Mandamus  is  an  action  or  judicial  proceeding  of  a  civil  nature,  extraor- 
dinary in  the  sense  that  it  can  be  maintained  only  when  there  is  no  other  adequate 
remedy,  prerogative  in  its  character  to  the  extent  that  the  issue  of  both  the  alternative 
and  the  peremptory  or  final  command  is  discretionary  to  enforce  only  clear  legal 
rights,  and  to  compel  courts  to  take  jurisdiction  or  proceed  in  the  exercise  of  their 
jurisdiction,  or  to  compel  corporations,  public  and  private,  and  public  boards,  com- 
missions, or  officers,  to  exercise  their  jurisdiction  or  discretion  and  to  perform  minis- 
terial duties,  which  duties  result  from  an  office,  trust,  or  station,  and  are  clearly  and 
peremptorily  enjoined  by  law  as  absolute  and  official."  (26  Cyc.  139.)  15  J.  A.  G., 
100.  See  also  LEGAL  LIABILITY,  3. 

Marine  league — "A  measure  equal  to  the  twentieth  part  of  a  degree  of  latitude."  (2 
Bouv.,  313).  See  TARGET  PRACTICE.  1. 

"Since  at  the  end  of  the  eighteenth  century  the  range  of  artillery  was  about  throe 
miles,  or  one  marine  league,  that  distance  became  generally  recognized  as  the  breadth 
of  the  marine  belt."    (1  Oppenheim,  250.) 
"Marine  Officers'  School."    C.  M.  O.  22, 1909;  16,  1910. 
"Marking  time."    C.  M.  O.  42,  1915,  12. 
"Mast."    C.  M.  O.  86,  1898, 1;  31.  1911,  6. 

Mayhem — "The  act  of  unlawfully  and  violently  depriving  another  of  the  use  of  such  of 
his  members  as  may  render  him  less  able  in  fighting,  either  to  defend  himself  or  annoy 
his  adversary."  (2  Bouv.,  384.)  C.  M.  O.  22,  1916,  2. 

"Mayhem  at  common  law  is  defined  as  the  violently  depriving  another  of  the  use 
of  such  of  his  members  as  may  render  him  less  able  in  fighting  to  defend  himself  or 
to  annoy  his  adversary."  (26  Cyc.  1595.) 

"Glanville  defines  mayhem  as  'the  breaking  of  any  bone  or  injuring  the  head  by 
wounding  or  abrasion.'  Foster  v.  People,  50  N.  V.,  598,  605,  1  Com.  Cr.,  50S." 
(26  Cyc.  1595.) 

"Maim  and  mayhem  are  equivalent  terms  at  common  law  and  mean  the  same 
thing.  State  v.  Johnson,  58  Ohio  St.  417,  51  N.  E.  40,  65  Am.  St.  Rep.  769.  See  also 
Guest  c.  State,  19  Ark.,  405."  (26  Cyc.  1595-1596.) 


WORDS    AND   PHRASES.  667 

Mayor— Impeachment  of.    File  20392-612,  J.  A.  G.,  Aug.  30,  1916. 

Menaces.    C.  M.  O.  8,  1911,  5;  23,  1911,  7. 

"Mental  clarity."    C.  M.  O.  5,  1915,  2. 

"Mere  guesses."    C.  M.  O.  9,  1911,  2. 

Mestizo — "Any  one  of  mixed  blood;  specifically,  in  Mexico  and  the  western  United  States, 

a  person  of  mixed  Spanish  and  Indian  blood."    (Stan.  Diet.)    C.  M.  O.  49, 1915,  23. 
"Mexican  currency."    13  J.  A  G.,  480,  Aug.  25,  1905. 
"Military  delinquency."    C.  M.  O.  9,  1916,  6. 
"Military  offejses."    C.  M.  O.  47,  1910,  5;  10,  1911,  5;  16,  1916,  8. 
"Military  propriety."    C.  M.  O.  45,  1909. 
"Military  trust."    C.  M.  O.  7, 1916,  1;  8,  1916,  1. 
"Minister  of  justice."    C.  M.  O.  6, 1909,  3. 

Ministerial  act—"  An  act  which  a  person  performs  in  a  given  state  of  facts,  in  a  prescribed 

manner,  in  obedience  to  the  mandate  of  legal  authority,  without  regard  to,  or  the 

exercise  of,  his  own  judgment  upon  the  propriety  of  the  act  done."    (27  Cyc.  793.) 

"Minor  operation"— "A  comparatively  trivial  one.    (Gould.)"    File  26253-98,  J.  A.  G., 

May  17,  1910,  p.  12. 

"Minute  guns."    Circular,  Sec.  Navy,  May  12,  1864. 
"Miscarriage  of  justice."    C.  M.  O.  6, 1908,  6;  28,  1910,  9;  5, 1912, 14;  4, 1913,  51;  27, 1913,  13; 

12,  1916,  2;  COURT,  78;  CRITICISM  OF  COURTS-MARTIAL,  14, 15, 16,  35,  39. 
Misdemeanor.    C.  M.  O.  23,  1911,  7. 
"Misinterpretation  of  evidence."    C.  M.  O.  37,  1915,  10. 
"Mistake  of  fact."    C.  M.  O.  10,  1911,  7;  5,  1912,  8. 
"Mistake  of  law."    C.  M.  0. 10, 1911, 7. 
"Moral  obliquity."    C.  M.  O.  24,  1914,  10,  15;  51,  1914,  4. 

"Moral  turpitude."    C.  M.  O.  28,  1912,  3;  4,  1913,  5,  34,  40;  16,  1916,  8;  WITNESSES,  52. 
"Morale  of  the  service."    C.  M.  O.  23,  1910,  11. 
"  More  than  26  years  of  age"— Means  having  passed  the  twenty-sixth  birthday.    C.  M. 

O.  6, 1915, 15. 

Morphine.    C.  M.  O.  42,  1909,  12. 
"Mortal  blow."    C.  M.  O.  23,  1911.  12. 
"Mortification  caused  this  officer."    C.  M.  O.  22,  1911. 
"Mulish."    File  26251-12159,  Sec.  Navy,  Oct.  7,  1916,  p.  1. 
"Multiplication  of  forms  of  charge  for  the  same  offense."    C.  M.  O.  19,  1911,  3.    See  also 

CHARGES  AND  SPECIFICATIONS,  61-68. 
Narcotic — Question  discussed  as  to  whether  tobacco  and  cigarettes  are  narcotics.    G.  C.  M. 

Rec.,  30485,  p.  760. 
National  honor.    See  C.   M.    O.   22,  1884,  2.    See  also   DRUNKENNESS,   99;    WATCH 

OFFICERS,  2. 
National  university — Alienation  of  a  site  of  land  at  Washington,  formerly  given  for  the 

purpose  of  a  national  university.    File  8288-03. 
Natural  and  necessary  consequences.    See  ACTS,  3. 

"Natural  and  probable  consequences.    C.  M.  O.  8, 1911,  5.    See  also  ACTS,  3. 
"Natural  and  probable  consequences.    C.  M.  O.  8, 1911, 5. 
"Navigational  lights."    C.  M.  O.  24, 1911, 1. 
"Navigational  aids."    C.  M.  O.  32, 1913. 
"Neglect  and  omission."    C.  M.  O.  9, 1911, 2. 
Negotiable  instrument.    C.  M.  O.  27, 1913, 6. 
Nephritis.    C.  M.  O.  20, 1915,  7. 
"Nerve."    C.  M.  O.  5, 1906,  2. 
Neurasthenia.    C.  M.  O.  24, 1914.  6, 18, 19. 
Neurologist.    C.  M.  O.  24, 1914,  6. 

Neurology — "  The  science  of  the  nervous  system."    (Stan.  Diet.) 
"Neutralizing  the  error  of  the  court."    C.  M.  0. 127, 1900, 1. 
Nol.  pros.    C.  M.  O.  42.  1914,  6. 

Nolo  contendere— "I  will  not  contest  it."    (29  Cyc.,  1053.)    See  NOLO  CONTENDEKE. 
Nolle  prosequi.    See  NOLLE  PROSEQUL 

Non  compos  mentis — "Not  of  sound  mind,  memory,  or  understanding."    "A  generic 
term  including  all  the  species  of  madness,  whether  it  arise  from  idiocy,  sickness, 
lunacy,  or  drunkenness.'*    (2  Bouv.,  506.)    See  INSANITY,  9. 
Non  constat—"It  does  not  appear."    (29  Cyc.,  1055.)    File  24482-34,  J.  A.  G.,  May  1, 1911, 

p.  18. 

"Nonprosecution."— Promise  to  enlist.    See  File  7657-395,  J.  A.  G.,  Sept.  21, 1916. 
Non  ultra.    C.M.  0.23,1911, 11. 


668  WORDS    AND   PHRASES. 

North  Pole— Discovery  of.    File  26255-83:4,  J.  A.  G.,  Aug.  4,  1911,  p.  5. 

"  Norther."    See  OFFICER-OF-THE-DECK,  5. 

Noscitur  a  sociis — The  interpretation  of  a  word  or  phrase  by  reference  to  other  words  with 

which  it  is  associated.    (Va.  v.  Tenn.,  148  U.  S.,  503, 519;  U.  S.  v.  Rodgers,  150  U.  S., 

249,  278;  Stoutenburgh  v.  Hennick,  129  U.  S.,  141, 147;  Hollender  v.  Magone,  149  U.  S., 

586;  Amer.  Fur  Co.  v.  U.  S.,  2  Pet.,  358,  367;  21  Op.  Atty.  Gen.,  124.) 
Nudum  pactum — "A  nude  pact."    "A  promise  that  can  not  be  enforced,  either  at  law  or 

in  equity."    "A  voluntary  promise,  without  any  other  consideration  than  mere 

good  will  or  natural  affection."    (29  Cyc.,  1141.) 
Nunc  pro  tune — "Now  for  then."    "A  phrase  used  to  express  that  a  thing  is  done  at  one 

time  which  ought  to  have  been  performed  at  another."    (2  Bouv.,  528.)    File  22724-18; 

26253-386:1,  p.  3;  7657-111, p.  11. 
Obesity,  general.    C.  M.  0. 12, 1915, 8. 
Obiter.    File  26280-68,  J.  A.  G.,  Apr.  12, 1916,  p.  2.     See  WORDS  AND  PHRASES  (Obiter 

dictum). 
"Obiter  dictum" — "An  opinion  expressed  by  a  court,  but  which,  not  being  necessarily 

involved  in  the  case,  lacks  the  force  of  an  adjudication."    (1  Bouv.,  567.)    File 

5362-35,  J.  A.  G.,  June  29,  1911,  pp.  11, 13;  26260-1294,  p.  6;   REASONABLE  DOUBT,  1. 
"Obligations  as  an  officer  and  a  gentleman."    C.  M.  0. 16, 1909. 
"Obligations  of  the  service."    See  CLEMENCY,  10. 
"  Official  decorum."    C.  M.  O.  42, 1915,  8. 

"Official  duty  has  been  regularly  performed"— -Presumption.    C.  M.  O.  12,  1911,  4. 
"Omission."    C.  M.  0. 12, 1911,  5. 
On  all  fours.    See  WORDS  AND  PHRASES  ("All  Fours.") 
Onus  — "  A  burden  or  responsibility;  duty."    (Stan.  Diet.) 
"Onus  for  the  neglect  of."    C.  M.  O.  37, 1915,  9. 
Onus  probandi — "The  burden  of  proof." 
"Opprobrious  epithets."    C.  M.  O.  23, 1911,  3;  23,1911,6. 
"  Oral-evidence."    C.  M.  O.  52, 1910,  3. 

"Original  papers"  in  general  courts-martial.    C.  M.  0. 1, 1914,  6;  39,  1915. 
"  Outrage  public  opinion."    See  ADEQUATE  SENTENCES,  15. 
"  Overtake  and  collide."    C.  M.  O.  29, 1910,  2. 
"Padding."    C.  M.  O.  23, 1913. 
"  Parade."    C.  M.  O.  33, 1908, 1. 

Pan  materia.    See  WORDS  AND  PHRASES  (In  pari  materia). 
"Paralleled  and  shadowed."    C.  M.  O.  29,  1912. 
Parole.    File  2715-82,  J.  A.  G.,  Feb.  4, 1916. 
"Patrol shack."    C.  M.  0. 16, 1910, 1. 
Paroxysm.    C.  M.  O.  42, 1909, 14. 
Particeps  criminis — A  partner  in  crime. 

Pawnbroker.    File  26804-8,  J.  A.  G.,  Aug.  28, 1916;  C.  M.  O.  49, 1910,  6. 
"Pawn  stolen  goods."    C.  M.  0. 13, 1908,  2. 
"  Pawn  tickets."    C.  M.  O.  49, 1910, 6. 
"Pawning."    C.  M.  0. 1, 1912,  6. 
Pea-coat.    See  OFFICER-OF-THE-DECK,  5. 
"Peculation" — The  unlawful  appropriation  by  a  depository  of  public  funds,  of  the 

property  of  the  Government  intrusted  to  his  care,  to  his  own  use  or  that  of  others." 

(2  Bouv.,  641.)    C.  M.  O.  28, 1914,  4. 
Penal  Code.    (35  Stat.,  1088.)    C.  M.  O.  4,  1913,  35. 
"  Pending  question."    C.  M.  O.  6, 1915,  7. 
Pendente  lite — "Pending  the  continuance  of  an  action;    while  litigation  continues."    (2 

Bouv.,  645.)    G.  C.  M.  Rec.,  31509,  p.  4  of  charges  and  specifications. 
Per  curiam—"  By  the  court."    (2  Bouv.,  649.) 
Per  se— "Taken  alone;  in  itself;  by  itself."    (2  Bouv.,  650.)    G.  O.  143,  Oct.  28,  1869; 

C.  M.  0.19,1895,2;  125,  1900;  42,  1909,10;  47,1910,8;  14,1910,11;  1,1912,5;  COURT, 

46;  DESERTERS.  12;  DRUNKENNESS,  22,  49, 52. 
"Pernicious."    C.  M.  O.  42, 1915. 

"Pie  box."    C.  M.  O.  28. 1908,  3;  G.  C.  M.  Rec.  18904,  p.  14. 
Plagiarism — "  The  act  of  appropriating  the  ideas  and  language  of  another  and  passing 

them  for  one's  own."    (2  Bouv.,  676.) 
Plaintiff.    C.  M.  O.  42, 1914,6. 

Planets— "Table  of  planets."    See  RETIRED  OFFICERS,  59. 
"  Play  upon  words."    C.  M.  0. 104, 1896,  5. 
Plenary  powers.    See  GUAM  5. 


WORDS   AND  PHRASES.  669 

"  Point  of  law."    C.  M.  O.  6, 1908,  5. 

Poop  deck.    See  OFFICER-OF-THE-DECK,  5. 

Post— "Above  "or  "before."    (Index,  1915,  39.)    C.  M.  O.  26, 1911,  6;  49, 1915, 11;    File 

26543-66, p.  5. 

Post  exchange  steward.    C.  M.  O.  5. 1912, 2;  8, 1913, 1. 
"  Practice  march."    C.  M.  O.  22  1909. 
"Practice  of  the  service."    C.  M.  O.  3, 1916,  8. 
"Predicate."    C.  M.  O.  88, 1895, 16.     ' 
"Predicated."    C.  M.  O.  4.  1913,  5. 

"  Presidio  or  penitentiary.'5    File  7142-03,  J.  A.  G.,  Sept.  21, 1903,  p.  2. 
Presumption.    C.  M.  O.  12, 1911,  4.  . 
Presumption  of  law.    C.  M.  O.  12,  1911,  4,  5. 
"  Pride  in  his  profession" — To  an  officer  without  "pride  in  his  profession"  "a  reprimand 

would  be  a  waste  of  words."    C.  M.  O.  27,  1910,  2. 

Same — Publication  of  findings  and  facts  established  "should  be  most  humiliating  lo- 
an officer  with  any  pride  in  his  profession."    C.  M.  O.  29, 1910,  2.    See  also  C.  M.  O. 

24,  1912. 

"Pride  in  his  reputation."    C.  M.  O.  7, 1914, 16. 
Prima  facie— "  At  first  view  or  appearance."    C.  M.  O.  49,  1910,  6;  12,  1911,  4;  5,  1912,  12; 

10, 1912,  8;  1,  1913,  6;  6, 1913,  3;  10, 1913,  3: 14, 1913,  4;  34,  1913.  7;  39,  1913,  8;  41, 1914,  3; 

9,  1916,  6;  File  26260-1294,  p.  3;  26260-1392,  pp.  31,  37;  16  J.  A.  G.,  88. 
"Primary  evidence."    C.  M.  O.  49,  1910, 15. 
"Prize  fighting."    C.  M.  O.  23,  1911,  6;  1,  1913,  6. 
Pro  forma— "As  a  matter  of  form."    (2  Bouv.,  762.)    File    26251-12159,  Sec.  Navy, 

Oct.  7,~  1916,  p.  2. 

Pro  rata — "According  to  the  rate,  proportion,  or  allowance."    (2  Bouv.,  763.) 
Pro  re  nata—"  For  the  occasion  as  it  may  arise."    (2  Bouv.,  763).    File  5252-36,  J.  A.  G., 

MayS,  1910,  p.  5. 
Pro  tanto—"FoT  so  much."    (2  Bouv.,  763.)    File  10726-03,  p.  3;  10726-03,  J.  A.  G. 

Jan.  12,  1904,  p.  3. 
Pro  tempore— "For  the  time  being;  temporarily;  provisionally."    (32  Cyc.  738.)    See 

25  Op.  Atty.  Gen.,  297. 
"  Prisoner  at  large."    C.  M.  0. 10, 1913,  6. 
Probative—"  Serving  for  trial  as  proof/'    (Index,  1915,  40.)    C.  M.  0. 15, 1910,  4;  31, 1915, 

Probative  force.    C.  M.  0. 15. 1910,  4;  31, 1915, 15. 

"  Professional  brothers."    C.  M.  O.  24, 1908. 

Promissory  note.    C.  M.  O.  27,  1913,  6. 

Prosecutor.    C.  M.  O.  42, 1914,  6. 

"Proximate  cause."    C.  M.  O.  35,  1915,  9. 

Psychasthenia.    C.  M.  O.  24, 1914,  6. 

Public  administrator.    C.  M:.  O.  6,  1915,  10.    See  also  DISPOSITION  OF  EFFECTS,  2. 

"Public  barroom."   C.  M.  O.  23,  1882;  14,  1910,  13;  SCANDALOUS  CONDUCT  TENDING  TO 

THE  DESTRUCTION  OF  GOOD  MORALS,  11. 
Public  policy — "  That  principle  of  the  law  which  holds  that  no  subject  can  lawfully  do 

that  which  has  a  tendency  to  be  injurious  to  the  public  or  against  the  public  good. 

(4  H.  L.  Cas.,  1;  Greenh.  Pub.  Pol.,  2.)    It  has  been  designated  by  Burroughs,  J.,  as 

'an  unruly  horse  pursuing  us,  and  when  once  you  get  astride  of  it  you  never  know 

where  it  will  carry  you.'    (2  Bingh.  229.)"    (2  Bouv.,  792-793.)    C.  M.  O.  31, 1911,  7; 

EVIDENCE,  83. 

"Public saloon."  C.  M.  O.  39, 1908, 1. 
"  Public  utility."  File  3980-621,  p.  7. 
"Public works."  File 3980-621. 

"  Pursuance  of  a  common  intent."    C.  M.  0. 10, 1911,  4. 
Quarantine.    C.  M.  O.  8,  1908,  3;  18,  1908,  1. 
Quaere— "  Query."    A  word  frequently  used  to  denote  that  an  inquiry  ought  to  be  made 

of  a  doubtful  thing.    Commonly  used  in  the  syllabi  of  the  reports  to  mark  points  of 

law  considered  doubtful.    (2  Bouv.,  799.) 
"Quantum  of  punishment."    C.  M.  O.  24,  1916,  4. 
Quash— "To  abate  or  make  void;  to  overthrow  or  annul;  to  vacate  by  judicial  action." 

(32  Cyc.,  1288.) 
Quasi — "As  if;  almost."    A  term  used  to  mark  a  resemblance,  and  which  supposes  a 

difference  between  two  objects.    It  negatives  the  idea  of  identity  but  points  out 

that  the  conceptions  are  sufficiently  similar  for  one  to  be  classed  as  the  equal  of  the 

other.    (2  Bouv.,  803.)    See  JEOPARDY,  FORMER,  3. 


670  WORDS    AND   PHRASES. 

Quisi  judicial.    C.  M..O.  7, 1914.  8;  COMMANDING  OFFICERS,  31;  JEOPARDY.  FORMER,  3. 

Quasi  penal.    File  4924-435,  J.  A.  G.,  June  20,  1916. 

Quid  pro  quo — "What  for  what."    A  term  denoting  the  consideration  of  a  contract. 

(2  Bouv..  808.) 
Quoad  hoc— ''As  to  this;  with  respect  to  this."    A  term  frequently  used  to  signify,  as  to 

the  thing  named,  the  law  is  so  and  so.     (2  Bouv.,  811.)     File  6769-21,  J.  A.  G..  Julv 

19,  1911,  p.  31. 

Range  finder.   C.  M.  O.  37, 1912. 

Rebuke  of  judge  advocate  by  court.    See  JUDGE  ADVOCATE,  60. 
Rebuttal.    C.  M.  O.  75, 1898. 
"  Recognizance"— "  An  obligation  of  record,  entered  into  before  a  court  or  officer  duly 

authorized  for  that  purpose,  with  a  condition  to  do  some  act  required  by  law  which 

is  therein  specified.'''  (2  Bouv.,  847.)    See  INTENT,  2;  C.  M.  O.  5, 1912. 12. 
"Red-light  district."    G.  C.  M.  Rec.,  31509,  p.  6  of  charges  and  specifications. 
Red  tape.    An.  Rep.  J.  A.  G.,  1916,  p.  3. 
"Redress  of  wrongs."   C.  M.  O.  38, 1914,  2. 
Keductio  ad  absurdum — "Reduction  to  an  absurdity;  proof  of  a  proposition  by  showing 

the  absurdity  of  assuming  the  truth  of  its  contradictory."    (Stan.  Diet.)    C.  M.  O. 

7, 1914,  9. 

"Regular  devil."   C.  M.  O.  7, 1911,  6. 
Relator.   C.  M.  O.  31, 1915,  8. 
"  Reliefs  of  the  guard."    C.  M.  O.  4. 1911.  5. 

"Religious  beliefs."  C.  M.  0. 16, 1916,  9-10.  See  also  TYPHOID  PROPHYLACTIC,  1. 
Reproof— "Letters  of  reproof."  See  WORDS  AND  PHRASES  ("Letters  of  reproof.") 
Res  gestae— "Transaction;  thing  done;  the  subject  matter.  See  DYING  DECLARATIONS,  1; 

RES  GESTAE. 

Resjudicata—"  The  matter  has  been  decided. "    See  RES  JUDICATA. 
"Residue  of  the  sentence."    G.  O.  46,  Jan.  5, 1865. 
Revision— "Additional session."    C.  M.  O.  5,  1912, 15. 
"Retreat  to  the  wall."  C.  M.  O.  23, 1911, 11. 
Riot.    C.  M.  O.  23, 1911,  7. 
"Ruffianly  assault."   See  ASSAULT,  21. 
"Rules  for  the  road."    C.  M.  O.  38, 1905;  29  1910,  2. 

"Running"— In  the  sense  of  "hazing."    File  10316-04.  J.  A.  G.,  Jan.  12, 1905,  p.  1. 
"Running mates."    File  28687-16,  J.  A.  G.,  Sept.  16,  1916,  p.  4;  111  30-37,  p.  6. 
Safe,  "insecurely  and  incompletely  locked."    C.  M.  O.  22, 1910,  2. 
"  Sail  vessel"— Right  of  way.    C.  M.  O.  4,  1914. 
Sangley  Point  (Punta  Sangley  or  Canacao  Peninsula).    File  7561-03,  J.  A.  G.,  Sept.  19, 

1903,  p.  1. 
"Sans  peur  et  sans  reproche" — "Without  fear  and  without  reproach."    (Stan.    Diet., 

p.  2262.)    C.  M.  O.  21  1894,  3. 
Saturday-afternoon  holidays.    13  J.  A.  G.,  204. 
"Savey."   C.  M.  O.  28,  1908. 

"Savoring  of  insubordination."    C.  M.  O.  4, 1911,  5. 
"  Scuffling."   See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 
Se  defendendo—"  Defending  himself."    (2  Bouv.,  963.)    C.  M.  O.  23, 1911, 11, 12. 
"Sea  duties"— The  essential  duties  of  an  officer  of  the  Navy  are  "sea  duties,"    File 

28687-14,  Sec.  Navy,  Jan.,  1916. 
"Sea-lawyer"  objections.    C.  M.  0. 16, 1911,  3. 
"Seaman's  Act"— Approved  March  4,  1915  (38  Stat.,  1164).    File  27403-132:2,  Let.  of 

Sec.  State,  Nov.  20, 1916. 
Searchlight."   C.  M.  0. 11, 1911. 
"  Secondary  evidence."   C.  M.  0. 1, 1911,  5. 
"  Secretaries  to  commanders  in  chief."    G.  0. 153,  April  18, 1870. 
"Self-defense."    C.  M.  0. 12, 1911,  7;  23, 1911,  6,  8;  MANSLAUGHTER,  13;  MURDER,  32. 
Self-serving  statements — Self-regarding  or  self-serving  evidence  is  "evidence  which  either 

serves  or  disserves  the  party."    (35  Cyc.,  1374.)    C.  M.  O.  29, 1914,  8. 
Seriatim — "In  a  series;  severally;  as,  the  judges  delivered  their  opinions  seriatim.    (2 

Bouv.,  982.)    File  172-04,  p.  2;  7657-167,  J.  A.  G.,  Jan.  17, 1913;  28687-4:1. 
"Set  to  the  eastward."   C.  M.  O.  24,  1911,  2. 
"Shakedown"  cruise.    C.  M.  O.  53, 1908,  2. 

"Shielding  the  officer  accused."    See  CRITICISM  OF  COURTS-MARTIAL,  21. 
"Shipping  articles"  of  the  accused.    C.  M.  0. 12, 1911,  3. 
"Shipped  over."    C.  M.  O.  28, 1910,  8. 


WORDS    AND   PHRASES.  671 

"Short  circuits"— Storage  batteries  of  submarines.    C.  M.  O.  41, 1915. 

Sic — "Such."    "So;  thus;  a  word  inserted  in  brackets  after  an  erroneous  or  astonishing 

statement,  to  indicate  that  the  quotation  is  a  literal  transcript."    (Stan.  Diet.) 

C.  M.  O.  4, 1913,  51;  EMBEZZLEMENT,  10. 

Sick  list.    C.  M.  O.  36, 1909;  42, 1909, 13;  DRUNKENNESS,  84;  EPILEPSY,  3. 
"Sifting  of  their  evidence"— Persons  arresting  accused.    C.  M.  O.  7, 1911, 10. 
"Signal  boy."    C.  M.  O.  28, 1908.  2. 
Sine  die—"  Without  day."    "A  final  adjournment."    (36  Cyc.,  459.)    See  G.  C.  M.  Rec. 

10196,  p.  2. 
Sine  qua  non—" Without  which  not."    "An  indispensable  requisite  or  condition." 

(36  Cyc.,  459.) 

"Skylarking."    C.  M.  O.  23,  1911,  3;  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 
Smallpox.    C.  M.  O.  35, 1914.    See  also  SMALL  Pox;  VACCINATION,  3. 
"Smuggling  plots"— "Dope"  and  narcotic  drugs.    File  13673-3882,  Sec.  Navy,  Sept.  26, 

1916. 

"Sneak."    C.  M.  0. 128, 1905,  4. 
"Solitary  drinker."    C.  M.  O.  24,  1914,  15,  17, 19. 
"  Son  9f  a  bitch."    C.  M.  O.  35, 1892,  2. 
Speaking  English— Accused  unable  to  speak  or  understand  English,  his  confinement 

would  seem  unnecessary  and  of  doubtful  benefit  to  the  discipline  of  the  service,  etc. 

C.  M.  O.  102,  1902,  1. 

Special  money  requisition.    C.  -M.  O.  9,  1916,  10. 

"Speeding" — Officers  speeding  in  automobiles.    See  AUTOMOBILE,  1,  2. 
"Spigs."    C.  M.  O.  7.  1914,  4. 
Spite— "In  spite  or  disrespect."    C.  M.  O.  8, 1911,  6. 
Spouse.    C.  M.  O.  31, 1914,  2. 
"Spree."    C.  M.  O.  24,  1914,  20. 

"  Squabbling."    See  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED,  71. 
Stabbing.    C.  M.  0. 12, 1911,  7;  10, 1912,  5;  19, 1912,  6. 
Stare  decisis  et  non  quieta  movere — "To  stand  by  decided  cases."    (36  Cyc.,  816.)    See 

"Statement  of  exceptions."    Ct.  Inq.  Rec.  4952,  pp.  1831, 1843. 

Status  quo — "The  existing  state  of  things  at  any  given  date."    (36  Cyc.,  927.) 

"Sting  from  the  offense."    C.  M.  O.  74,  1899,  2. 

"Stores"— Defined.    File  24482-34,  J.  A.  G.,  May  1,  1911,  p.  9. 

"Strait-jacket."    C.  M.  O.  29,  1908,  7. 

Strangulation.    C.  M.  O.  13,  1916,  8. 

"Strict  accountability."    C.  M.  O.  5, 1913,  4;  23, 1916,  2. 

Stricti  juris — "  Of  strict  right  or  law;  according  to  strict  law."    (370  Cyc.,  336.) 

Strictissimi  juris— "The  most  strict  right  or  law."    (2  Bouv.,  1049.) 

Strictis  simijuria.    File  26260-1392,  J.  A.  G.,  June  29, 1911,  pp.  24-24^. 

"Stricture."    See  CRITICISM  OF  COURTS-MARTIAL,  35. 

Sua  sponte — "Of  his  or  its  own  will  or  motion;  voluntarily;  without  prompting  or  sug- 
gestion." (37  Cyc.,  339.)  C.  M.  O.  31, 1911,  6;  16  J.  A.  G.,  82;  EVIDENCE,  82. 

Subjudice — "Under  or  before  a  judge  or  court;  under  judicial  consideration;  undeter- 
mined.." (37  Cyc.,  344.)  See  JURY,  5. 

Subvoc.    C.  M.  O.  23,  1911,  5. 

Sub  voce — "Under  the  word  in  question;  an  encyclopedic  or  dictionary  form  of  refer- 
ence." (Stan.  Diet.) 

Suborn— "Toprocure another  to  commit  perjury." 

Subpoena — "The  process  by  which  the  attendance  of  a  witness  is  required;  a  writ  or 
order  directed  to  a  person  and  requiring  his  attendance  at  a  particular  time  and  place 
•  to  testify  as  a  witness."  (37  Cyc.,  360.) 

Subpoena  aatestificandum—"A.  process  to  compel  a  witness  to  appear  and  give  testimony, 
commanding  him  to  appear  before  a  court  or  magistrate  therein  named,  at  a  time 
therein  mentioned,  to  testify  for  a  party  named,  under  a  penalty  therein  mentioned." 
(37  Cyc.,  360.) 

Subpoena  duces  tecum—"  A  process  whereby  a  court,  at  the  instance  of  a  suitor,  commands 
a  person  who  has  in  his  possession  or  control  some  document  or  paper  that  is  pertinent 
to  the  issues  of  the  pending  controversy  to  produce  it  for  use  at  the  trial."  (37  Cyc., 
360.) 

Sui  juris— "Of  his  own  right;  possessing  full  social  and  civil  rights;  not  under  any  legal 
disability,  or  the  power  of  another,  or  guardianship."  (37  Cyc.,  522.) 

50756°— 17 13 


672  WORDS    AND   PHRASES. 

"Suit  money  "—"An  allowance  which  is  required  to  be  paid  by  the  husband  to  the  wife 
pending  suit  for  divorce,  for  the  expenses  of  such  suit."  (37  Cyc.,  526.)  G.  C.  M. 
Ree.  31509,  p.  4  of  charges  and  specifications. 

Summons— Enlisted  men  and  others  as  witnesses.    See  WITNESSES,  59,  107. 

"Summons  or  complaint."    G.  C.  M.  Rec.,  31509,  p.  4  of  charges  and  specifications. 

Supra— "  Above."  (Index,  1915,  50.)  C.  M.  O.  49, 1910,  10;  55, 1910,  8;  10, 1911.  5;  2, 1912, 
7;  4, 1913,  43;  5,  1913,  8;  8,  1913,  4;  4,  1914,  7;  24,  1914,  9,  10.  12,  13,  14,  15.  File  9736-18, 
J.  A.  G.,  June  25, 1910,  p.  16;  27231-34,  p.  3;  8093-17,  J.  A.  G.,  May  22, 1914,  p.  1.  Com- 
pare C.  M.  O.  10, 1911,  5. 

Super  visum  corporis—"  Upon  a  view  of  the  body."  (Stan.  Diet.,  p.  2262.)  File  6769-21, 
p.  29. 

Surplusage.    C.  M.  O.  8,  1913,  4;   25,  1914,  6;  24,  1916,  4. 

Syllabus— "A  headnote;  a  note  prefixed  to  the  report  of  an  adjudged  case,  containing 
an  epitome  or  brief  statement  of  the  rulings  of  the  court  upon  the  point  or  points 
decided  in  the  case."  (37  Cyc.,  660.)  File  26287-1020.  p.  6. 

"Taken  by  surprise."    C.  M.  O.  5,  1916,  6;  DEPOSITIONS,  9;  IMPEACHMENT,  5. 

"Technical accuracy."   C.  M.  O.  23, 1911,  5;  10,1912,10. 

"Technical battery."   C.  M.  0. 23, 1911,  6. 

"Technical defense."   See  TECHNICAL  DEFENSE. 

"Technical embezzlement."    See  EMBEZZLEMENT,  14. 30. 

"Technical  error."    C.  M.  O.  9. 1913,  2;  42, 1914,  3. 

"Technically  guilty."    C.  M.  0. 12, 1911,  5. 

"Technical inaccuracies."    C.  M.  0. 10, 1912, 10. 

"Technical inquiries."   Sec  DEATH  GRATUITY,  25. 

"Technical objections."   C.  M.  O.  4, 1914, 10. 

"Technical  pleas."   See  OFFICERS,  88, 116. 

"Technicality  of  law."    C.  M.  O.  5, 1914,  5. 

"Terror  of  the  fleet."    C.  M.  O.  7. 1911,  6. 

"  Testimony  and  other  evidence.'5   C.  M.  O.  41, 1888, 16. 

"  Tie  a  string  to  his  judicial  confession."    File  26251-12159,  p.  11. 

"Time  of  the  United  States."    C.  M.  O.  42,  1915,  11. 

"Torpid  moral  sense."    C.  M.  0. 51, 1914,  4. 

Tort— "A  private  or  civil  wrong  or  injury."    (2  Bouv.,  1124.) 

"Tow  of  target  rafts."   C.  M.  0. 11, 1911,  2. 

Trade— Definition.    C.  M.  O.  21, 1910,  6-8. 

"Traditions  of  the  service."    C.  M.  O.  59,  1904,  2.    See  also  CLEMENCY,  10;  WATCH 

"Traversing.'''  Ct.  Inq.  Rec..  4952,  pp.  1831, 1843. 

"Travesty  of  justice."   C.  M.  O.  25, 1915, 1. 

"Travesty  on  the  administration  of  justice."    C.  M.  O.7, 1914, 12. 

Train  schedules— With  reference  to  instructions  in  G.  0. 110.    C.  M.  O.  23, 1915,  2. 

Trespass.    C.  M.  O.  42, 1909, 10.    See  also  LINE  OF  DUTY  AND  MISCONDUCT  CONSTRUED, 

104, 105. 

Try  cock.    C.  M.  O.  37, 1915,  4. 

"Trying  case  out  of  court."  C.  M.  O.  28,  1909,  3;  37,  1909,  8;  42,  1909,  15;  30,  1910,  5;  1, 
1911,  4;  30,  1912,  6;  10, 1912,  7;  16,  1913,  4;  34,  1913,  8.  See  also  JUDGE  ADVOCATE, 
122-124. 

Tuberculosis— Line  of  duty.    File  7657-390:2,  Oct.  6, 1916. 
"  Turned  back  into  the  next  lower  class  of  midshipmen."    C.  M.  0. 10, 1909,  2. 
"  Turpitude  or  moral  wrong."    C.  M.  O.  5, 1912,  8. 
"  Two  sides"  to  the  story.    File  7657-408,  Sec.  Navy,  Oct.  28, 1916. 
Ultimo— "In  the  month'next  preceding  the  present  month."    (Stan.  Diet.)    File  27231- 

77:1,  J.  A.  G.,  Oct.  18,  1916. 
Ultra  vires—" Beyond  the  lawful  capacity  or  powers."    (Stan.  Diet.)    File  24482-34, 

J.  A.  G.,  May  1,  1911. 

'Unambiguous phraseology."    C.  M.  0. 13, 1916,  8. 
'Unenviable  distinction."    C.  M.  0. 16, 1911,  2. 
'Unclean  habit  of  thought."    C.  M.  0. 18, 1910,  2. 

'Uncontrollable  impulse."    C.  M.  O.  24,  1914,  11.    See  also  INSANITY,  22. 
'Unlawful  assembly."   C.  M.  O.  23. 1911,  7. 

'  Unmilitary  and  criminal  conduct/'    File  26251-12159,  Sec.  Navy,  Oct.  7, 1916,  p.  3. 
'Unoflicerlike  conduct."   File  26262-2610,  Sec.  Navy,  July  21,  1916;    CRITICISM  or 

COURTS-MARTIAL,  38;  C.  M.  O.  7, 1914, 16. 
'  Unofflcerlike  methods."   C.  M.  0. 16, 1911, 3. 


WORDS    AXD   PHRASES.  673 

"Unsavory  matter."    File  26251-12159.  Sec.  Navy,  p.  2. 

"Untruthful."    C.  M.  O.  24  1910. 

"Unwhipped  of  justice."    See  REASONABLE  DOUBT,  1. 

Usages  of  the  service.    C.  M.  0. 18, 1897,  3.    See  also  CUSTOMS  OF  THE  .SERVICE,  6. 

Usury — Usury  is  malum  prohibitum,  not  malum  in  se.  (Hamilton  v.  Prouty,  50  Wis., 
592.)  The  universally  accepted  definition  of  usury  by  the  courts  at  the  present  time 
is  that  it  "is  the  taking  of  more  interest  for  the  use  of  money  or  forbearance  of  a  debt 
than  the  law  allows."  In  Newton  v.  Wilson  (31  Ark.,  484)  it  was  held  that  "usury 
is  the  charging  of  unlawful  interest.  Unless  there  is  a  law  which  limits  the  rate  of 
interest  to  be  charged  there  'can  be  no  usury."  (See  also  Woodruff  v.  Hurson,  32 
Barb.  [N.  Y.I,  557.)  C.  M.  O.  21, 1910,  9. 

Ut supra— "Asaoove."    (Stan.  Dict.j  p.  2263.)    File  6769-21,  p.  31. 

Utile  per  inutile  non  vitiatur — "What  is  useful  is  not  vitiated  by  the  useless."  (C.  M.  O. 
4,1914,6,7;  39Cyc.,  1098.) 

Utter — "  To  offer;  to  put  out;  to  pass  off;  to  sell;  to  vend;  to  emit  at  large  or  publish." 
(39Cyc.,  1101.) 

"Vacillation  of  the  court  and  its  rulings."  See  REPORTS  OF  DESERTERS  RECEIVED  ON 
BOARD,  3. 

"Vague  and  indefinite."    C.  M.  O.  7,  1911,  13. 

"Venality  and  corruption."    G.  O.  156,  May  24,  1S70;  CONGRESS,  11. 

Verbatim—"  In  the  exact  words;  word  for  word. "    C.  M.  O.  23, 1911,  4:  File  3980-650,  p.  1. 

Verbiage — "Use  of  many  words  without  necessity;  superabundance  of  words;  wordiness; 
verbosity."  (Stan.  Diet.)  14  J.  A.  G.,  60,  Nov.  3,  1908. 

Vermuth.    C.  M.  O.  56, 1880. 

Fide— "See."    (Index,  1915,  52.)    C.  M.  O.  56, 1897,  2;  47,1899;  146,1901,4;  216,1901,2. 

"Vile  epithet."   C.  M.  0. 18, 1910.    See  also  EPITHETS,  1;  OFFICERS,  122. 

"  Villify  the  Constitution."    C.  M.  0. 14, 1910, 14. 

"  Vindices  injuriamm."   C.  M.  O.  23, 1911, 11. 

Viva  voce— "  With  the  living  voice."    "  By  word  of  mouth."    (40  Cyc.,  213.) 

Viz.—"  Namely"  or  "to  wit."   C.  M.  O.  4, 1916,  3;  FILIPINOS,  3. 

Void — "  In  the  pure  sense  of  the  term,  absolutely  null;  without  legal  efficacy ;  ineffectual 
to  bind  parties  or  to  convey  or  support  a  right;  that  which  is  incapable  of  enforce- 
ment, and  can  not  be  ratified  or  confirmed;  of  no  legal  force;  of  no  effect  whatever; 
of  no  legal  force  or  effect  whatever;  of  no  legal  force  or  effect  whatsoever;  null  and 
incapable  of  confirmation  or  ratification."  (40  Cyc.,  214.)  See  FRAUDULENT  EN- 
LISTMENT, 30,  31,  32,  50,  92,  93. 

Voidable — "Capable  of  being  avoided;  capable  of  being  avoided  or  confirmed."  (40 
Cyc.,  214.) 

Voir  'dire — "A  preliminary  examination  of  a  witness  to  ascertain  whether  he  is  com- 
petent." (2  Bouv.,  1200.)  "'To  speak  the  truth.'  Refers  to  an  oath  administered 
to  a  proposed  witness  or  juror  [or  member  of  a  naval  court-martial],  and  also  to  the 
examination  itself,  to  ascertain  whether  he  possesses  the  required  qualifications,  he 
being  sworn  to  make  true  answers  to  the  questions  about  to  be  asked  him  concerning 
the  matter."  (40  Cyc.,  217.)  13  J.  A.  G.,  324,  June  11,  1904.  See  also  CHALLENGES, 
13;  EVIDENCE,  124;  MEMBEES  OF  COUETS-MARTIAL,  39;  VOIR  DIRE. 

"Vomit."    C.  M.  O.  23, 1908. 

Waiver— Denned.    File  3031-57,  J.  A.  G.,  Julv  31,  1908.    See  also  WAIVING 

War  slate— Retired  officers.    File  3809-640:2;  28573-64. 

"  Wardroom."   C.  M.  O.  2, 1911. 

"  Wardroom  country."    G.  O.  240,  Nov.  23,  1878. 

"Wardroom  messrobm."   C.  M.  0. 19, 1914. 

"Wardroom  mess."   C.  M.  O.  56, 1880. 

Wardroom  wine  mess.    File  26260-1392,  p.  14. 

"  Warrant  officers'  mess."   C.  M.  0. 19, 1909. 

"Warrant  of  commitment."   C.  M.  O.  5, 1912, 12. 

"What  is  useful  is  not  vitiated  by  the  useless."    C.  M.  O.  4, 1914,  6,  7. 

"Wherry."    C.  M.  O.  6, 1915, 13;  12, 1915,  9. 

"  White  List  "—To  prevent  discrimination  against  uniform.    File  23243-783. 

"White-slave  traffic  act."    File  27381-25:1,  Sec.  Navy,  July  14,  1916. 

"Wine  mess."    C.  M.  O.  6, 1912. 

"Wireless  telegram."   C.  M.  0. 1, 1908, 1. 


674  WORDS    AND   PHRASES. 

Withdrawal.    C.  M.  O.  42,  1914,  6.    See  also  NOLLE  PEOSEQUI. 
Withdrawing  from  the  combat.    C.  M.  0. 12, 1911,  7;  23, 1911,  8. 
"Working  back."    C.  M.  O.  24,  1916,  3. 

"Year"— In  a  sentence  means  12  calendar  months.    File  26504,  J.  A.  G.,  Nov.  3,  1908. 
See  also  NAVAL  ACADEMY,  26;  SENTENCES,  118. 

WOUND. 

1.  Definition— Within  meaning  of  R.  S.,  1494.    See  PROMOTION,  163, 164. 

WRECKS. 

1.  Disposition  of— The  department  has  no  authority  to  make  disposition  of  wrecks  or 

to  authorize  the  raising  of  them.    File  4486-93,  Dec.  19,  1907. 

2.  Removal— Removal  of  wrecks  of  Spanish  ships  sunk  in  the  battle  of  Santiago.    File 

11142-02,  J.  A.  G.,  Dec.  26,  1902;  22  J.  A.  G.  801 

3.  "Submerged  and  unmarked  wreck."    C.  M.  O.  29, 1916. 

WRITTEN  INSTRUMENTS. 

1.  Charges  and  specifications.    See  CHARGES  AND  SPECIFICATIONS,  106. 

WRONGFULLY  AND  KNOWINGLY  SELLING  AND  DISPOSING  OF  SUB- 
SISTENCE STORES  OF  THE  UNITED  STATES,  FURNISHED  AND 
INTENDED  FOR  THE  NAVAL  SERVICE  THEREOF,  IN  VIOLATION 
OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOVERNMENT  OF  THE 
NAVY. 
1.  Officer— Charged  with.  C.  M.  O.  23,  1913,  3. 

WRONGFULLY  AND  KNOWINGLY  DISPOSING  OF  PROPERTY  OF  THE 
UNITED  STATES  FURNISHED  AND  INTENDED  FOR  THE  NAVAL 
SERVICE  THEREOF. 

1.  Enlisted  man— Charged  with.    C.  M.  0. 1, 1914,  5. 

WRONGFULLY  AND  KNOWINGLY  DISPOSING  OF  PROPERTY  OF  THE 
UNITED  STATES  INTENDED  FOR  THE  NAVAL  SERVICE  THEREOF, 
IN  VIOLATION  OF  ARTICLE  14  OF  THE  ARTICLES  FOR  THE  GOV- 
ERNMENT OF  THE  NAVY. 

1.  Paymaster's  clerk— Charged  with.    G.  C.  M.  Rec.,  7354. 

"WRONGFULLY"  AS  EXPRESSING  INTENT.  See  CHARGES  AND  SPECIFICATIONS, 
52;  JOINDER,  TKIAL  IN,  19. 

WRONGFULLY  DISPOSING  OF  PROPERTY  OF  THE  UNITED  STATES  IN- 
TENDED FOR  THE  NAVAL  SERVICE  THEREOF,  IN  VIOLATION  OF 
ARTICLE  FOURTEEN  OF  THE  ARTICLES  FOR  THE  GOVERNMENT 
OF  THE  NAVY. 
1.  Chief  gunner— Charged  with.    C.  M.  0. 38, 1916. 

YEAR. 

1.  Definition.    See  NAVAL  ACADEMY,  20;  SENTENCES,  118. 

YELLOW  FEVER. 

1.  Commanding  officer— Left  station  and  duty  without  authority  when  yellow  fever 
was  raging— Tried  by  general  court-martial  and  dismissed.  C.  M.  O.  50. 1882.  See 
also  C.  M.  O.  59,  1882;  61H,  1890. 

YOSEMITE,  U.  S.  S. 

1.  Clemency— Extended  to  accused  because  he  had  been  a  member  of  the  crew  of.  C. 
M.  O.  73,  1905. 

YOUTH. 

1.  Acquittal— Because  of  comparative  youth  of  accused.    C.  M.  O.  24,  1916,  4. 

2.  Clemency.   See  CLEMENCY,  68-72. 

3.  Witnesses.   See  WITNESSES,  52. 


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